Prakash Chandra Dixit & Ors. vs The State Of Bihar & Anr.

The petitioners, eight in numbers have assailed the order dated 20.06.2015 passed by learned Judicial Magistrate 1^st Class, Siwan in Complaint Case No. 2378 of 2013, whereby finding prima facie case under Sections 147, 148, 323 and 354A of the Indian Penal Code, processes have been issued against the petitioners for their appearance to face trial.

A complaint case was filed on 20.09.2013 in the Court of the learned Chief Judicial Magistrate, Siwan, alleging inter alia therein that all the accused persons as named, forcibly entered the land of complainant on 19.09.2013 and with an intention to dispossess him, started vandalizing the property and on being resisted, the accused persons who were variously armed, assaulted the complainant causing injury and when his family members came to save, the accused persons assaulted them on different parts of their body while another accused person snatched mangalsutra and earrings made of gold from his wife and daughter and one of the accused grabbed his wife. The complainant and his family members approached the local police station but seeing not action on their part, they filed the complaint application in the Court of the learned Chief Judicial Magistrate.

Upon such an application, the Complaint Case No. 2378 of 2013 was instituted and having recorded the solemn affirmation of complainant on 14.02.2013 as well as statement of enquiry witnesses on 16.04.2014, the learned Judicial Magistrate 1^st Class, Siwan, finding prima facie case under Sections 147, 148, 323, 354A of the IPC, issued processes against the petitioners (accused persons) for their appearance to face trial.

Learned counsel for the petitioners argues that the instant complaint case, in which petitioners have been made accused, is in fact a counter-blast to the complaint case lodged by the petitioner No. 1 i.e., Prakash Chandra Dixit vide Complaint Case No. 2361 of 2013, which were also filed on 20.09.2013 in the Court of the learned Chief Judicial Magistrate, Siwan, implicating the complainant herein and his family members for the occurrence which alleged to have been taken place on 19.09.2013. He also submits that for the said occurrence taking place on 19.09.2013, the complainant of the present case namely Bhuneshwar Dixit had also lodged an FIR vide Nautan P.S. Case No. 142 of 2013 dated 20.09.2013 for the offences under Sections 341, 323, 324, 307, 379, 447, 354 and 34 of the Indian Penal Code, implicating all the petitioners herein. He also points out that the allegations as leveled in the present complaint case i.e., Annexure-1, the FIR as contained in Annexure-4, though are in connection with the same occurrence which alleged to have taken place on 19.09.2013 but, in fact, attributes different kind of allegations against the petitioners in the instant complaint. The allegations are general and omnibus in nature against all the accused persons with the specific role of molestation committed upon the wife of complainant as mentioned in present complaint case whereas in the FIR no such allegations for the same date of occurrence have been alleged against the accused persons. He also states that for the same occurrence, two proceedings have been instituted against the petitioners by the complainant, one by filing the instant complaint case and another by filing the police case vide Nautan P.S. Case No. 142 of 2013 and as such, this conduct of complainant shows his ulterior motive of wreaking vengeance on the petitioners by filing series of false cases, just in order to harass, humiliate and persecute them only for exerting their rightful claim which is unacceptable to the complainant.

He submits that learned Judicial Magistrate 1^st Class, Siwan, without properly considering the allegations, the documents and the nature of the dispute between the parties took cognizance of the offences in the most mechanical manner and the order taking cognizance is non-speaking one which reflects non-application of judicial mind by the learned Judicial Magistrate 1^st Class, Siwan.

On being noticed, the complainant appeared through his learned Advocate who contested the arguments so advanced on behalf of the petitioners by submitting that the petitioners are hell-bent to disturb the peaceful living of the complainant and his family member and by resorting to illegal activities, they are in the habit of causing disturbances on the land of complainant. He also submits that the learned Court below has properly examined the solemn affirmation of the complainant and statement of enquiry witnesses and thereafter, having perused the averments made in the complaint application and the documents so brought on record, rightly took cognizance of offences against the accused persons. He also supports the filing of separate FIR for the same occurrence which alleged to have taken place on 20.09.2013. He submits that accused persons were variously armed and they assaulted almost each family members of the complainant. Thus, while concluding his submission, he argues that the accused persons must be relegated to the learned Trial Court to face the trial and the defence so taken by them could only be examined by the learned Trial Court after examining the witnesses adduced on behalf of all the parties.

Learned Additional Public Prosecutor for the State supports the aforesaid contention of the complainant and submits that the accused persons have committed crime against the society that is why they are not entitled to any relief from this Hon’ble Court rather they must face the trial and their defence could only be examined by the learned Trial Court.

Having heard rival submissions made on behalf of the parties and perused the documents so brought on record including the solemn affirmation, the statement of enquiry witnesses, the FIR (Annexure-5), the present complaint case and the case filed by the petitioners as contained in Annexure-4, it is evident that petitioners and the complainant are on litigating terms. In the instant complaint case, the allegations have been attributed to the various accused persons assigning different roles of crime, but in support of such allegation of assault on all the family members of the complainant, no injury report has been brought on record nor any medical papers showing the treatments given to such persons alleged to have been injured on account of the such assault given by the petitioners.

The wife of complainant was examined as enquiry witness and in her statement on oath she has also narrated the same story as leveled in the complaint application except the factum of her molestation at the hands of the petitioners. Being victim, she could have been best person to elaborate the same but she has not uttered a word that any person tried to outrage her modesty.

Perusal of the Annexure- 4, which is a Complaint Case No. 2361 of 2013 filed by petitioner No. 1 on 20.09.2013 in the Court of the learned Judicial Magistrate 1^st Class, Siwan, exposes the true nature of the instant complaint case. The complaint case so filed by petitioner No. 1, is numbered as 2361 of 2013 whereas the present complainant case is numbered as 2378 of 2013 which indisputably shows that petitioner No. 1 has filed complaint case earlier than the present complaint case and in the complaint case so filed by petitioner no. 1, the present complainant and his sons and family members are named accused persons. Perusal of Annexure-4 i.e., complaint case so filed by petitioner No. 1 truly manifest that for construction over a piece of land both the parties are at loggerheads and are disputing their respective right and possession over the aforesaid piece of land, which is the genesis for the acrimonious relationship between the parties.

Further perusal of Annexure- 5, which is an FIR lodged by the present complainant on 20.09.2013 as Nautan P.S. Case No. 142 of 2013 implicating the petitioners for the same occurrence alleged to have taken place on 20.09.2013, with respect to the dispute over construction of houses on the piece of land over which both the parties are claiming right and possession. In the aforesaid FIR, no allegation whatsoever has been made for outraging the modesty of any woman much less the complainant’s wife. Furthermore, no injury report or any other medical evidence has been placed on record in support of such an allegation.

When a query was put to learned counsel appearing on behalf of Opposite Party No. 2 with respect to the allegation of outraging modesty and injury as alleged to have been caused on the bodies of the family members of the complainant, he could not dispute the fact that there appear to be no injury which is evident from the absence of any injury report nor is there any kind of allegation in the FIR, regarding outraging modesty of any woman of the complaint’s family.

In the absence of any specific allegation with respect to offences as alleged under Section 354A of the IPC, it is difficult to uphold the order taking cognizance under Section 354A of the IPC against the accused persons.

Section 354A of the IPC deals with the sexual harassment of a women and punishment for sexual harassment. Sub-section (1) thereof provides that a man committing any of the following acts-

Section 354A (2) provides that any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

In view of the aforesaid legal parameters, the allegations so made in the present complaint case does not satisfy any of the ingredients as mentioned in the Section 354(A) of the IPC to constitute an offence under the aforesaid sections. Thus, the order of learned Magistrate taking cognizance of offences under Section 354A seems to be a result of non-application of judicial mind which is unsustainable in the eyes of law.

Besides the allegations as leveled in the complaint case and the nature of such allegations, if viewed, in totality keeping in mind the complaint case filed earlier by the petitioner No. 1 and the FIR lodged by the present complainant for the same occurrence, leads to an irresistible conclusion that the parties are at loggerheads for a dispute over a piece of land and for that purpose with ulterior motive they are filing cases against each other and, in fact, the present case seems to be counter-blast to the case lodged earlier in time by the petitioner No. 1 and as such the instant criminal prosecution appears to be tainted with mala fide where the prosecution has been launched with the mal-intention, brings it into the category of malicious prosecution which is impermissible in the eyes of law.

The Hon’ble Supreme Court on numerous occasions has considered the power of the High Court to quash criminal proceedings under Section 482 of the Cr.P.C. and the scope thereof, for exercise of such powers. The most celebrated case in this regard is State of Haryana v. Bhajan Lal : (1992) Suppl. 1 SCC 335 which is recognized as “locus callicus” on the issues of exercise of power under Section 482 of the Cr.P.C. The scope of the power of the High Court to be exercised under Section 482 of the Cr.P.C., for quashing criminal prosecution have been well enunciated in plethora of judicial pronouncements as evident from State of Karnataka v. L. Muniswamy : (1977) 2 SCC 699, State of A.P v. Aravapally Venkanna : (2009) 13 SCC 443, Neeharika Infrastructure (P) Ltd. v. State of Maharashtra : (2021) 19 SCC 401, Sachin Garg v. State of U.P : (2024) SCC OnLine SC 82 and Vishal Noble Singh v. State of U.P. : (2024) SCC OnLine SC 1680 besides the Bhajan Lal’s case (supra).

Thus, in the backdrop of the aforesaid discussion, the instant criminal proceeding, if allowed to be continued, would amount to be an abuse of the process of the Court wherein the parties are fighting each other for establishing their rights and claiming their possession over the piece of land, could not be allowed to set the judicial proceedings in motion for their personal gains and as such, in the ends of justice, such proceedings ought not be allowed to continue.

Ex Consequenti, the criminal proceedings initiated vide order dated 20.06.2015 taking cognizance of offences under Sections 147, 148, 323, 354A of the IPC in Complaint Case No. 2378 of 2013, is hereby quashed and set aside qua the petitioners.

Thus, the present application is allowed in the aforesaid terms.

All pending interlocutory application(s), if any, shall also be deemed to have been disposed of.

However, there shall be no order as to costs.