Vidyadhar Tiwary Vs the State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND, RANCHI

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Cr.M.P. No. 360 of 2019

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1.Vidyadhar Tiwari @ Vidhyadhar Tiwari

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2.Nand Kishore Tiwari @ Nand Kishore Tiwari 3.Braj Kishor Tiwari @ Braj Kishore Tiwari 4.Amit Tiwari @ Amit Kumar Tiwari @ Amit Tiwari 5.Praphulla Tiwari @ Prafull Tiwari @ Praful Tewari

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6.Asu @ Ashish Kumar Tewari @ Ashu @ Ashu Tiwari @ Ashu Tiwari

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7.Niraj Tiwari @ Niraj Kumar Tiwari @ Niraj Tiwari @ Niranjan Tewari....Petitioners

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-- Versus -- The State of Jharkhand and Another …… …….. .... ….Opposite Parties ----

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CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners :- Mr. Deepankar Roy, Advocate For the State :- Mr. Vishwanath Roy, Advocate For the O.P.No.2 :- Mr. Shashank Shekhar Prasad, Advocate Ms. Richa Mishra, Advocate ----

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7 /07.05.2024 Heard the learned counsels appearing on behalf of the

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petitioners, the respondent State and the O.P.No.2.

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The prayer in this petition has been made for quashing of the entire criminal proceeding including the order dated 07.12.2018 passed in Cr. Revision No.55 of 2017, passed by learned Sessions Judge-II, Palamau, arising out of Protest Cum Complaint Case No.1246 of 2015, pending in the court of learned Judicial Magistrate, Palamau.

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The protest petition was filed alleging therein that complainant and her family were sleeping and in the mean while on 07.06.2014 at midnight 12 AM, accused namely Braj Kishore Tiwary, Nand Kishore Tiwary both son of Shaligram Tiwary and Amit Tiwary,

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1 Cr.M.P. No. 360 of 2019

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Prafful Tiwary and Ashu Tiwary, all sons of Braj Kishore Tiwary, Niraj Tiwary son of Nand Kishore Tiwary came up with the deadly weapons and assaulted the petitioner and her family, then thereafter the accused person ousted the petitioner along with her family from their house.

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That the above named accused person put the complainant’s house on fire and burnt house-holds items like Table, chair, Jewellery, furniture and cash for an amount for Rs 10,000/-. and also burnt some important documents relating to the Self Help Group ( Swayam Sahayata Samuh).

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That the abovenamed accused person also burnt the paddy, chickpeas and Rice. While returning from the place of occurrence, the accused persons also put the tractor of the complainant/petitioner on fire and said that you have vehicle insurance and you will get the insured money.

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That the complainant and her whole family went to the police station and lodged instant F.I.R being Lesliganj P.S Case No. 35 of 2014 however, the police officer did not actively investigate the matter.

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That after a continuous request to the police station, the concerned police officer took the Braj Kishore Tiwary into custody however, after a few hours released the accused person.

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That the complainant and her family also made application to the Higher Police Officer and threatened to go onto the fast resulting into the surrender of accused person in the court.

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That the Police Officer submitted the Final report citing the lack of evidence as well as witness however, the complainant/petitioner 2 Cr.M.P. No. 360 of 2019

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stated that the two witnesses supported the prosecution story in the case.

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That the complainant/petitioner states and submitted that when she received the notice it was found that case diary was annexed with the notice wherein someone has signed the fake signature of the complainant/petitioner and as such it clearly shows the high handed approach of accused person and connivance of the police authority. 4. The learned counsel for the petitioners submits that the O.P.No.2 has filed Lesliganj P.S. Case No.35 of 2014 against the petitioners which was investigated by the police and final form no.85 of 2005 was submitted on 26.07.2015 saying lack of evidence and notice was issued upon the O.P.N.2 by the learned court. The O.P.no.2 filed a petition before the learned court on 06.08.2015 contained in Annexure-4. He submits that looking into the said content, the learned court has been pleased to accept the final form by order dated 06.08.2015. He submits that after acceptance of the final form, the present protest petition was filed on 12.08.2015 and on the said protest petition, the learned court has taken cognizance by order dated 10.11.2016 under sections 147, 148, 323, 435, 149 of the IPC. He further submits that the said order taking cognizance was challenged by the O.P.No.2 before the learned Sessions Judge in Cr.Revision No.82 of 2016 and the learned revisional court has set aside the order dated 10.11.2016 by order dated 09.05.2017 passed in said revision petition and after receiving the order dated 09.05.2017 the learned Magistrate by order dated 13.07.2017 consigned the record to the Record Room as there was no order of the learned revisional court to pass further fresh order. The O.P.No.2 further filed 3 Cr.M.P. No. 360 of 2019

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criminal revision being Cr. Revision No.55 of 2017, and the learned revisional court set aside the order dated 13.07.2017 disclosing that section 436 of the IPC is made out and set aside the order dated 10.11.2016 and directed the learned court to pass further order and aggrieved with this, the petitioners have filed the present petition.

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Mr. Deepankar Roy, the learned counsel appearing for the petitioners further submits that once the final form was accepted it was not incumbent upon the learned court to ask the complainant to file fresh protest petition. He further submits that in view of the provisions made in the Cr.P.C the charge can be altered at any point of time, and since the order of the learned revisional court is there, the learned court is having no option and the learned court is bound to take cognizance. On this ground, he submits that the entire criminal proceeding is an abuse of process of law and this Court may interfere with the matter.

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Learned counsel appearing for the respondent State submits that the final form was accepted and thereafter on the protest petition the learned court has proceeded.

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Learned counsel for the O.P.no.2 submits that rightly the order has been passed by the learned court and the liberty was provided and the learned court has rightly proceeded and there is no illegality in the revisional order passed by the learned Sessions Judge. On this ground, he submits that this petition may kindly be dismissed.

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It is an admitted position that the FIR was registered being Lesliganj P.S. Case No.35 of 2014. The police has submitted final form saying that there is lack of evidence and pursuant thereto, the notice was issued upon the O.P.No.2. The O.P.No.2 filed the objection 4 Cr.M.P. No. 360 of 2019

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in the said case and after hearing the O.P.No.2 the final form was accepted however, liberty was provided by the learned court to file fresh protest petition and thereafter the O.P.No.2 has filed fresh complaint petition and learned court has been pleased to take cognizance on 10.11.2016 on the said protest petition which was challenged by the informant in Criminal Revision No.82 of 2016 and the learned revisional court has set aside the order dated 10.11.2016 disclosing its mind that section 436 of the IPC is also made out which was challenged in Criminal Revision No.82 of 2016 and by order dated 09.05.2017 the order of the learned court was set aside and thereafter the learned court has been pleased to consign the record of the said case by order dated 13.07.2017 saying that there is no further direction by the learned revisional court to pass fresh order on point of cognizance. Against that order, again O.P.no.2 has moved before the learned revisional court vide Cr.Revision No.55 of 2017 and by order dated 7.12.2018 the learned court set aside the order dated 13.07.2017 and directed the learned court to pass the fresh order in place of order dated 10.11.2016.

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In this background, it is crystal clear that final form was accepted by the learned court on the objection petition filed by the O.P.No.2, there was no occasion to give further liberty to file protest petition by the O.P.No.2. Admittedly, the order dated 07.12.2018 in Cr. Revision No.55 of 2017 simply the order dated 10.11.2016 was set aside. Cr.Revision No.82 of 2016 is order dated 09.05.2017, however, no direction was issued to pass a fresh order on the point of cognizance and in that view of the matter the learned court has been pleased consign the case record by order dated 13.07.2017 and 5 Cr.M.P. No. 360 of 2019

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thereafter in Cr. Revision No.55 of 2017 the learned court has directed to pass fresh order in place of order dated 10.11.2016.

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In view of the above, entire exercise it appears that section 362 Cr.P.C is attracted. Once the final form was accepted there was no occasion to ask the O.P.No.2 to file second protest petition. Admittedly, the first objection was filed in G.R.No.964 of 2014 which clearly suggest that it was in the form of protest petition and in view of that contention of the learned counsel for the O.P.No.2 is not accepted by the Court that the present complaint is not the second application on the point of protest petition as in the first petition objection was also filed. The said objection was filed in the same G.R. Number.

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In view of above facts, reasons and analysis, the case of interference is made out.

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Accordingly, the entire criminal proceeding including the order dated 07.12.2018 passed in Cr. Revision No.55 of 2017, passed by learned Sessions Judge-II, Palamau, arising out of Protest Cum Complaint Case No.1246 of 2015, pending in the court of learned Judicial Magistrate, Palamau are quashed.

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This petition is allowed and disposed of.

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Pending petition, if any, also stands disposed of accordingly.

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( Sanjay Kumar Dwivedi, J.)

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SI/,

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6 Cr.M.P. No. 360 of 2019

Vidyadhar Tiwary v. the State of Jharkhand

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Vidyadhar Tiwary v. the State of Jharkhand

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