Amit Kumar Bhagat Vs the State of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No.559 of 2024

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Amit Kumar Bhagat (Age about 34 Years) S/o Sri Karu Bhagat resident of village-Pratappur, P.O. & P.S.-Pratappur, DistrictGodda (Jharkhand).

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Nirmal Kumar Rowani (Age about 44 years) S/o Late Lakhi Ram Rowani resident of Mohalla-Vikash Nagar, P.O. & P.S.-Hehal, District-Ranchi (Jharkhand). … Petitioners

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Versus

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The State of Jharkhand

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Shashi Kumar S/o Late Pradip Ravidas, resident of Mohalla-Kaji Mohalla, Bajrangi Chowk, P.O.-Hazaribag, P.S.-Sadar, District- … Hazaribag (Jharkhand). Respondents

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For the Petitioner : Mr. Amit Kr. Verma, Advocate For the State : Mr. Vineet Kumar Vashistha, Spl.P.P. : Mr. Deepankar Roy, AC to GA-III For the Respondent : Mr. Pratik Sen, Advocate : Mr. Sourav Kumar, Advocate

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Writ Petition (Cr.) under Article 226 of the Constitution of India has been filed with a prayer for issuance of an appropriate writ (s)/order (s)/direction (s) for quashing the entire criminal proceeding against the petitioners in connection with Protest Petition arising out of SC/ST P.S. Case No.29 of 2016 registered as SC/ST Case No.24 of 2023.

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The brief fact of the case is that on 08.12.2016, the petitioners not being the members of SC and ST community intentionally insulted and intimidated the victim being a member of scheduled caste in a place within public view and

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abused the victim by his caste name, in a place within public view and also assaulted him. On the basis of the written report submitted by the victim, police registered SC/ST P.S. Case No.29 of 2016 and after investigation of the case, police submitted Final Form after finding that the allegation made against the petitioner are not true. Thereafter, the complainant filed protest petition against the said Final Form and the same has been registered as SC/ST Case No.24 of 2023. Basing upon the protest-cum-complaint petition, statement on solemn affirmation and statement of the enquiry witnesses, the learned Additional Sessions Judge-VI, Hazaribagh inter alia found prima facie case for the offences punishable under Section 323, 504 of the Indian Penal Code and Section 3(1) (x) of the SC/ST (prevention of atrocities) Act, 1989 and ordered for issuance of summons. It is pertinent to mention here that the petitioner has not specifically challenged the summoning order dated 30.05.2023.

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Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Dr. Subhash Kashinath Mahajan vs. State of Maharashtra and Another reported in (2018) 6 SCC 454, in Para-63 wherein, it has been observed by the Hon’ble Supreme Court of India, that it has been judicially acknowledged that there are instances of abuse of the SC/ST (Prevention of Atrocities) Act, 1989 by vested interests, against the political opponents and to settle private civil disputes, arising out of property and other disputes and by way of rampant misuse complaints are largely being filed inter alia against public servants with oblique motive for satisfaction of vested interests. It is next submitted by the learned counsel for the petitioner that in this case also, the petitioner no.1 at the relevant time, being the Junior Engineer of the State Electricity Board and the petitioner no.2

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being the lineman has taken action as per law against the employer of the victim and the employer is an advocate by profession; therefore, as a counterblast to harass the petitioners, this case has been instituted, hence, continuation of this case will amount to abuse of process of law.

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Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of M/s Godrej Sara Lee Ltd. vs. The Excise and Taxation Officer-cum-Assessing Authority and Ors . passed in Civil Appeal No.5393 of 2010 dated 01.02.2023 , and submits that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that even if there is an alternative remedy that does not prohibit a writ court from going beyond the self-imposed restriction of not entertaining writ application. 6. Learned counsel for the petitioner next relies upon the judgment of Hon’ble Supreme Court of India in the case of Kim Wansoo v. State of Uttar Pradesh & Ors. reported in 2025 INSC 8, paragraphs-6, 7 and 11 of which reads as under:-

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“6. It is worthwhile to refer to some of the decisions of this Court in regard to the power of the High Court to quash criminal proceedings before considering the rival contentions with reference to the allegations made in the subject FIR, as extracted above. It is true that normally, quashing of criminal proceedings would be sought and would be done in exercise of the inherent power of the High Court under Section 482, Cr. P.C. But certainly, that does not mean that it could not be done only in invocation of the extraordinary power under Article 226 of the Constitution of India. This position was made clear by this Court in State of Haryana and Ors. v. Bhajan Lal and Ors.1. After considering the statutory provisions of Cr. P.C. and the earlier decisions of this Court, in the said decision this Court held that in the following categories of cases, the extraordinary power under Article 226 or the inherent power under Section 482, Cr. P.C. could be exercised by the High Court, either to prevent abuse of process of any Court or otherwise to secure the ends of justice. This Court went on to observe and hold that it might not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and exhaustive list of myriad kinds of cases wherein such

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power should be exercised and encapsulate the following cases falling under such categories: -

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“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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“7. The said position was reiterated by this Court in Pepsi Foods

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Ltd. and Anr. v. Special Judicial Magistrate and Ors.2 This Court held therein that the High Court could exercise its power of judicial review in criminal matters and it could exercise this power either under Article 226 of the Constitution or under Section 482, Cr. P.C. to prevent abuse of the process of the Court or to secure the ends of justice. Furthermore, it was held that exercise of that power would depend upon the facts and circumstances of each case.”

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“11. In the contextual situation, it is also relevant to refer to the decision of this Court in Mohammad Wajid and Another. v. State of U.P. and Anr. 5 , whereunder this Court, in so far as it is relevant, held thus: -

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“34……...it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation….” (Emphasis supplied)

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Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Hitesh Verma vs. State of Uttarakhand and Another reported in (2020) 10 SCC 710 and submits that in paragraph-14 of that judgment, it has been held in no uncertain manner that if an offence is committed outside the building which place can be seen by someone from the road or lane outside the boundary and that place certainly will be place with public view, but if the remarks is made inside a building but some members of public are there then it will not be an offence; since such a place is not place with public view. It is next submitted that in this case, the place of occurrence is inside the office of an advocate, so that place of occurrence cannot be termed as a place within public view, hence, it is

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submitted that even if the allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 3(1)(x) of SC/ST (prevention of atrocities) Act, 1989 is not maintainable, hence, it is submitted that on this score also, the prayer as prayed for by the petitioner ought to be allowed. Hence, it is submitted that the prayer as prayed for in this writ petition be allowed.

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Learned Spl.P.P. appearing for the State and learned counsel for the respondent no.2 relying upon the judgment of the Hon’ble Supreme Court of India in the case of J. Jayalalithaa and Others vs. State of Karnataka and Others reported in (2014) 2 SCC 401 , paragraph-34 of which reads as under:-

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“34. There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. In other words, where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim expressio unius est exclusio alterius, meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following any other course is not permissible.” (Emphasis supplied)

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and submits that in that judgment, the Hon’ble Supreme Court of India has referred to the legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same and other methods or modes or

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performance are impliedly and necessarily forbidden and such legal proposition is based on the legal maxim expressio unius est exclusio alterius

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meaning thereby that if a statute provides for a thing to be done in a particular way then that has to be done in that manner.

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In this respect, the learned Spl.P.P. also relies upon the judgment of the Hon’ble Supreme Court of India in the case of State of Uttar Pradesh vs. Singhara Singh and others reported in (1963) SCC OnLine SC 23 , paragraph-8 of which reads as under:-

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“8. The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him.” (Emphasis supplied)

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and submits that therein also this principle has been approbated relying upon the judgement in the case of Taylor Vs. Taylor [(1875) 1 Chd 426, 431]. 10. Learned Spl.P.P. appearing for the State and learned counsel for the respondent no2. drawing attention of the Court to Section 14A of the SC/ST (Prevention of Atrocities) Act, 1989 submit that the same provides for Appeal inter alia from an order which is not being an interlocutory order and the order taking cognizance is not an interlocutory order, so the remedy prescribed by this SC/ST (prevention of atrocities) Act, 1989, is by filing of an appeal.

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Learned Spl.P.P. appearing for the State and learned counsel for the respondent no.2 next drawing attention of the Court to Annexure-2/C of this writ petition at page-41 to 43 of the brief submit that the same is an order taking cognizance passed by the learned Additional Sessions Judge-VI, Hazaribagh and since the petitioner himself has filed the said order, so the petitioner is very much aware about the existence of such order. It is then submitted that though the petitioners cunningly have chosen not to challenge the said order in this writ petition but the prayer for quashing the entire criminal proceeding has been made indirectly to quash and set aside the order by which the cognizance has been taken by learned Spl. Judge under the SC/ST (prevention of atrocities) Act, 1989, hence, this writ petition is not maintainable. 12. Learned Spl.P.P. appearing for the State and learned counsel for the respondent no.2 next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Waryam Singh and Another vs. Amarnath and Another reported in (1954) 1 SCC 51 , paragraph-13 of which reads as under:-

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“13. This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee [Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, 1950 SCC OnLine Cal 88 : AIR 1951 Cal 193] , to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower courts in refusing to make an order for ejectment acted arbitrarily. The lower courts realised the legal position but in effect declined to do what was by Section 13(2)(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so. In our opinion there is no ground on which in an appeal by special leave under Article 136 we should interfere. The appeal, therefore, must stand dismissed with costs.” (Emphasis supplied)

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Wherein the Hon’ble Supreme Court of India had occasion to consider the power of Superintendence conferred by Article 227 of the Constitution of India is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors and as in this case, cognizance has been taken by the learned Additional Sessions Judge-VI-cum-Spl. Judge (SC & ST Act Cases), Hazaribagh, and though the petitioners are aware about the same, but not challenge the same, hence, it is submitted that there is not even an error on the part of the learned Additional Sessions Judge-VI-cum-Spl. Judge (SC & ST Act Cases) and at best, the petitioners can argue that the criminal proceeding instituted against the petitioners is not in good faith. It is then submitted by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Additional Director General, Army Headquarters vs. CBI reported in (2012) 6 SCC 228 , paragraph-70 of which reads as under:-

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“70. Good faith has been defined in Section 3(22) of the General Clauses Act, 1897 to mean a thing which is, in fact, done honestly, whether it is done negligently or not. Anything done with due care and attention, which is not mala fide, is presumed to have been done in good faith. There should not be personal ill will or malice, no intention to malign and scandalise. Good faith and public good are though the question of fact, are required to be proved by adducing evidence. (Vide Madhavrao Narayanrao Patwardhan v. Ram Krishna Govind Bhanu [AIR 1958 SC 767] , Madhav Rao Jivaji Rao Scindia v. Union of India [(1971) 1 SCC 85 : AIR 1971 SC 530] , Sewakram Sobhani v. R.K. Karanjiya [(1981) 3 SCC 208 : 1981 SCC (Cri) 698 : AIR 1981 SC 1514] , Vijay Kumar Rampal v. Diwan Devi [AIR 1985 SC 1669] , Deena v. Bharat Singh [(2002) 6 SCC 336] and Goondla Venkateswarlu v. State of A.P. [(2008) 9 SCC 613 : (2008) 3 SCC (Cri) 829] )” (Emphasis supplied)

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that good faith and public good are questions of fact which are required to be proved by adducing evidence, so at this stage, a criminal case cannot be quashed for being not in good faith at this nascent stage.

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Learned Spl.P.P. appearing for the State and learned counsel for the respondent no.2 next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Central Bureau of Investigation vs. Aryan Singh etc. reported in (2023) SCC OnLine SC 379 , paragraph-11 of which reads as under:-

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“11. One another reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” (Emphasis supplied)

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that whether criminal proceedings were malicious or not is not required

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to be considered at the stage of taking cognizance, the same is required to be considered at the conclusion of the trial, hence, it is submitted that this is not a stage where a criminal proceeding can be quashed on the ground of the same being a malicious proceeding.

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Learned counsel for the State next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Municipal Corporation of Greater Mumbai and Others vs. Vivek V. Gawde etc reported in (2024) SCC OnLine SC 3722 wherein albeit in respect of the order passed by Civil Court, the Hon’ble Supreme Court of India relying upon its judgment in the case of

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Radhe Shyam and Another Vs. Chhabi Nath and Others reported in (2015) 5 SCC 423 rendered by three Judges Bench, paragraphs-25 and 27 of which reads as under:-

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“25. It is true that this Court has laid down that technicalities associated with the prerogative writs in England have no role to play under our constitutional scheme. There is no parallel system of King's Court in India and of all the other courts having limited jurisdiction subject to the supervision of the King's Court. Courts are set up under the Constitution or the laws. All the courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. Writ jurisdiction is constitutionally conferred on all the High Courts. Broad principles of writ jurisdiction followed in England are applicable to India and a writ of certiorari lies against patently erroneous or without jurisdiction orders of tribunals or authorities or courts other than judicial courts. There are no precedents in India for the High Courts to issue writs to the subordinate courts. Control of working of the subordinate courts in dealing with their judicial orders is exercised by way of appellate or revisional powers or power of superintendence under Article 227. Orders of the civil court stand on different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. While appellate or revisional jurisdiction is regulated by the statutes, power of superintendence under Article 227 is constitutional. The expression “inferior court” is not referable to the judicial courts, as rightly observed in the referring order [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] in paras 26 and 27 quoted above.”

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“27. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226.” (Emphasis supplied)

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submits that this writ petition having primarily been filed to set aside the cognizance order by which the competent Special Judge under the SC/ST (Prevention of Atrocities) Act, 1989 has taken cognizance of the offences, the same cannot be set at naught by invoking the power under Article 226 of the Constitution of India. Therefore, it is submitted that this W.P. (Cr.), being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of Iqbal alias Bala and Others vs. State of Uttar Pradesh and Others reported in (2023) 8 SCC 734 , paragraph-7 of which reads as under:-

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“7. It is relevant to note that the victim has not furnished any information in regard to the date and time of the commission of the alleged offence. At the same time, we also take notice of the fact that the investigation has been completed and charge-sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and charge-sheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge-sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any case for discharge is made out or not.” (Emphasis supplied)

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though, has observed that the allegation levelled in the FIR did not inspire any confidence, but in view of the fact that the investigation of that case, before it, was complete and charge sheet was ready to be filed, it was observed that the appellant before the Hon’ble Supreme Court of India should prefer discharge application before the learned trial court and the learned trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge sheet.

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Now coming to the facts of the case, there is a specific provision of law, in view of Section 14(A) of the SC/ST (Prevention of Atrocities) Act, 1989, according to which the remedy which has been provided for challenging an order inter alia being the order taking cognizance, which is not an interlocutory

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order by way of filing the Appeal. But for reasons best known to the petitioners, though the petitioners know pretty well, that the order of taking cognizance has been passed by the learned Additional Sessions Judge-VI-cumSpecial Judge under the SC/ST (Prevention of Atrocities) Act, Hazaribagh, but the petitioners have not filed the Appeal under Section 14A of the SC/ST (Prevention of Atrocities) Act, 1989 and even have not expressly prayed for quashing of the said order by this Court in this writ petition.

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There is direct and specific allegation against the petitioners of being not the members of Scheduled Castes and Scheduled Tribes having intentionally insulted and intimidated the victim with intent to humiliate the victim who is a member of scheduled castes, in a place within public view. The contention of the petitioners that the place of occurrence took place inside the office of the employer of the victim could not be traced out from the materials available in the record. Certainly, during the trial, if and when the same takes place, , the petitioners will be free to set up the same as a defence, but in view of the specific allegation against those petitioners and in the absence of any material to suggest that the place of occurrence was not with public view; this Court do not find any justifiable reason to quash the entire criminal proceeding, more so, when the petitioners knowing pretty well that the cognizance of the offence has already been taken by the learned Additional Sessions Judge-VI-cum-Special Judge under the SC/ST (Prevention of Atrocities) Act, Hazaribagh has chosen not to challenge the same specifically, though, the consequence of allowing the prayer made in this writ petition; will amount to quashing the said order of cognizance being taken against them by a judicial order, as well, in respect of which the SC/ST (Prevention of Atrocities) Act, 1989 specifically provides the

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remedy under Section 14(A) of the said Act for filing an Appeal. This case is at an advance stage, as cognizance has already been taken; in view of the ratio of the judgment of Iqbal @ Bala and Others vs. State of Uttar Pradesh and Others (Supra), this Court is of the considered view that this is a fit case where the Trial Court should be allowed to look into the materials and to take a call if any discharge petition is filed by the petitioner.

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