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Judgment
Heard Mr. Brajesh Sahay, learned counsel appearing on behalf of the petitioners and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor appearing on behalf of the State. Despite valid service of notice upon opposite party No.2, there is no representation on his behalf.
The petitioners have approached this Court seeking quashing of the impugned order dated 20.12.2016, passed by the learned Sub-Divisional Judicial Magistrate, Raxaul at Motihari, East Champaran, in Complaint Case No. C-35/2016, whereby and whereunder cognizance of the offences punishable under Sections 147, 323, 427, 380, 452, 504 and 506 of the Indian Penal Code has been taken against the petitioners.
The case of the complainant, in brief, is that the petitioners No. 1 and 2, who were posted as Circle Officer and Government Amin, respectively, on the pretext of implementing the order of the Hon’ble Patna High Court, in collusion with the other petitioners and under a conspiracy, wrongly marked the house of the complainant to be on encroached land. They came with a JCB machine and started demolishing the complainant’s house, roof and chajja, and, upon protest, at the direction of petitioner No. 1, the police personnel abused the complainant, assaulted him with fists and slaps and pointed their official firearms towards the complainant and his family members threatening that if they created a ruckus, the whole family would be killed. It is further alleged in the complaint that the female members of the family of the complainant were also abused and insulted, consequently the complainant and his family members became scared, and the petitioners demolished the house of the complainant and took away the house hold articles worth Rs.1.5 lakhs, after loading the same on a tractor, thereby causing a total loss of around Rs. Two lakhs. As an FIR was not lodged for the said occurrence, the complainant filed the complaint petition.
Learned counsel for the petitioners has submitted that the petitioners have falsely been implicated in this case. It has been submitted that initially a complaint case was filed, which was subsequently sent to the police under the provisions of Section 156(3) of the Cr.P.C. for registration of the FIR and accordingly, Chhauradano P.S. Case No. 83 of 2014, dated 06.08.2014, came to be registered under Sections 147, 148, 149, 323, 307, 420, 354, 427, 457, 380, 504 and 506 of the Indian Penal Code (IPC), the police, after thorough investigation, submitted a final form in favour of the petitioners, as the accusations were found to be false, and further there was a recommendation by the Investigating Officer to proceed against opposite party No. 2 under the provisions of Section 182/211 of the IPC. It has further been submitted that even though the final form was accepted by the learned court below on 14.07.2015, but the learned court below treated a protest petition, which was already on record, as a protest-cum-complaint and proceeded to examine the complainant on solemn affirmation and the inquiry witnesses under the provisions of Section 202 Cr.P.C. and, on the basis thereof, by the impugned order, dated 20.12.2016, cognizance came to be taken against the petitioners for the offences punishable under Sections 147, 323, 427, 380, 452, 504 and 506 of the IPC.
Learned counsel for the petitioners has submitted that the present complaint against the petitioners is attended with malice and personal vendetta to spite personal score, as petitioner No. 3 had preferred CWJC No. 19591 of 2012 before this Court, which was disposed of by order dated 16.10.2012, with a direction to the respondent authorities to ensure compliance of the part of the order dated 21.04.2012, passed in Encroachment Case No. 14 of 2010-11, and secure the removal of the encroachment from the road in question within a reasonable time, not exceeding two months from the date of receipt/production of a copy of the order before the Circle Officer (respondent No. 8 therein). It has further been submitted on behalf of the petitioners that the brothers of the complainant were the encroachers and they were arrayed as respondents No 12 and 13 in the said writ application. It has further been submitted that since the authorities did not obey the aforesaid direction of the Writ Court, the petitioner No. 3 was compelled to file a contempt application bearing MJC No. 298 of 2013, which was disposed of by order dated 11.09.2013, observing that the encroachment was removed, as was accepted by the counsel for the petitioner therein. It was further directed that the authorities shall ensure that no encroachment is raised over the road in question by private opposite party Nos. 12 and 13 therein (who are brothers of the complainant), failing which, the petitioners would be entitled to approach this Court. It has further been submitted that despite the aforesaid direction of this Court in the contempt application, new encroachments were made by the brothers of the complainant, whereafter petitioner No. 3 was again compelled to approach to this Court by filing another contempt application giving rise to MJC No. 263 of 2015, which was disposed of by order dated 22.04.2015, with a direction that the administration would maintain a constant vigil on the road so that it is not encroached upon again. It was further directed that in the future, if any encroachment is made on the road, the petitioner would be at liberty to invite the attention of this Court by filing a short contempt petition. It has further been submitted that the complaint case was filed by the complainant, which given rise to Chhauradano P.S. Case No. 83 of 2014, against the petitioners, with an oblique motive to falsely implicate them, so that they would not come in the way of the brothers of the complainant. It has further been submitted that ultimately after a thorough investigation, the police found the case to be untrue. The finding was accepted by the learned Magistrate, but since a protest petition was already on record, the same was treated as a complaint.
It has further been submitted that the complainant’s side filed about four other cases against the petitioners’ side with respect to the encroachments made by them and the allegation in the said FIR would clearly demonstrate that the same were filed against the government officials also, who were discharging their official duty, as well as against the other petitioners, who had set the law in motion for the removal of the illegal structure from the road.
Learned counsel for the petitioners has further submitted that in view of the aforesaid facts and circumstances, no offences are made out under Sections 147, 323, 427, 380, 452, 504 and 506 of the IPC, in which cognizance has been taken by the learned court below, with respect to mischief, house trespass, theft in dwelling house, criminal intimidation, breach of peace and causing voluntary hurt. It has further been submitted that the orders passed in the encroachment proceedings were final and were never challenged before the competent authorities. The petitioners have been falsely implicated in this case as a measure of pressure tactics. It has further been submitted that since the complainant and his family members had no case, as they were encroachers and were identified as such by the authorities, they did not prefer any appeal against the said order and hence the present prosecution is purely attended with malice and personal vendetta, while a primarily civil dispute is dressed up in a criminal cloak.
Learned counsel for the petitioners has relied upon the judgments of the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, and in the case of Pepsi Foods Ltd. and Another v. Special Judicial Magistrate and Others, reported in (1998) 5 SCC 749, and has submitted that continuation of the present proceeding against the petitioners would be an abuse of the process of the court.
Learned Additional Public Prosecutor appearing on behalf of the State opposed the prayer of the petitioners.
Heard the parties and perused the record.
The parties are on litigating terms since 2012 when petitioner No. 3 had to approach this Court for enforcement of the order passed in encroachment proceedings against the brothers of the complainant, who were identified as enroachers and were removed from the plots upon intervention of this Court in MJC proceedings, even thereafter a fresh encroachment was made by the complainant and his family members compelling petitioner No. 3 to approach this Court and finally the authorities ensured the removal of the encroachment. Thereafter the complainant with malicious intent, filed multiple FIRs/complaint against the petitioners. In such a view of the matter and taking into consideration the judgments of the Hon’ble Supreme Court, as discussed above, this Court is of the view that no offence of criminal trespass, theft in the dwelling house or criminal intimidation is made out and the allegations appears to be malicious. Therefore, continuation of the present prosecution against the petitioners would be an abuse of the process of the court.
Accordingly, the impugned order taking cognizance dated 20.12.2016, passed by the learned Sub-Divisional Judicial Magistrate, Raxaul at Motihari, East Champaran, in Complaint Case No. C-35/2016, is hereby quashed.
The application stands allowed.