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Judgment
1.Heard Mr. B. Das, learned counsel for petitioners and T. K. Mishra, learned Addl. P. P., Assam for the State. None appears on behalf of the
respondent No. 2.
By filing this petition under Section 482 Cr.P.C read with Section 227 of the Constitution of India, the petitioners have prayed for setting aside and
quashing of the impugned order dated 23.02.2015, and further proceeding pursuant thereto pending in the Court of learned Chief Judicial Magistrate,
Goalpara, Assam in G.R. Case No. 2526/14 arising out of Goalpara P.S. Case no. 719/2014 under Sections 447/427/379/34 IPC and the Charge sheet
No. 17/15.
The petitioners’ case in a nut shell is that on dated 05.11.2014, the respondent No. 2 (informant) i.e. Abdur Rahman, lodged an ejahar before
the Goalpara Police Station alleging inter alia that while informant was constructing a new house upon a land belongs to one Hossain Ali on the
strength of power of attorney from the owner, situated at Bhalukdubi, where he kept 50 bags of cement, 5 quintals of iron rod and 10,000 bricks. It is
alleged that on the day of occurrence, the accused persons trespassed into the land by breaking the wall and took away the cement bags, rod and
bricks. On the basis of the said FIR, the Officer-In-Charge of the Goalpara Police Station had registered a case against the accused petitioners being
Goalpara P.S. Case No. 719/2014 under Section 447/427/379/34 IPC.
After completion of the investigation, the O/C Goalpara Police Station on dated 07.02.2015, filed the Charge sheet No. 17/15 under Sections
447/427/34 IPC before the Court of learned Chief Judicial Magistrate, Goalpara and found no material under Section 379 IPC. On the basis of the
Charge sheet, the learned Court on 23.02.2015, issued process against the accused petitioners for appearance in G.R. Case No. 2526/14. Accordingly,
the accused petitioners appeared before the Court on 20.05.2015 and pleaded not guilty to the charges under Section 447/427/34 IPC and claimed to
be tried.
Now the accused persons by filing this present petition under Section 482 have challenged the aforesaid proceeding on the ground that there was a
land dispute between the owner of the land, one Ajmal Haque and the respondent No. 2/ the informant and they became the scapegoat as they carried
constructions work as per direction of Ajmal Haque. After filing of the present case, the respondent No. 2 filed a M.C. No. 93/14 before the
Executive Magistrate against the said person, Ajmal Haque which was registered under Section 145 Cr.P.C. and from the report of the Circle Officer
submitted in the said case, it reflects that the present respondent No. 2 has no possession over the said land. Further, the said Hussain Ali from whom
the respondent No. 2 alleged to have obtained power of attorney has filed a title suit against said Ajmal Haque, claiming right, title interest and
possession of said land.
In view of the above, it is submitted the respondent No. 2 has no authority to file the FIR while he has no possession over the land and the
petitioners were working on the land as a casual labour is no way associated with any offence.
I have considered the submission of the learned counsel for the petitioners and the documents that has been annexed.
It is to be noted that the said informant/the respondent No. 2 in his statement under Section 161 has stated about construction in the disputed land by
the accused petitioners by breaking the boundary wall and also carrying away some construction materials. His other witnesses (working under the
informant) have stated that the accused persons were labourer and started construction in the disputed premises as per instruction of the Ajmal
Haque, by breaking the boundary wall. None of the witnesses have stated about commission of theft by the accused petitioners. In such backdrop, the
present accused petitioners who were working under the instruction of the land owner cannot be robed with such criminal liability for any sort of
mischief for breaking the boundary wall nor there can be any question of trespass. They are simply doing their work for their livelihood as engaged by
the land owner, even they were not aware as to who is the real owner of the land.
The petitioners herein have submitted certain order passed by the Circle Officer, dated 09.01.2015, in relation to the M.C. 93/14 under Section 145
Cr.P.C., wherein it has been reported to the Deputy Commisssioner, Goalpara that the respondent No. 2/ Abdur Rahman has no possession over the
said land but the same Abdur Rahman being the Police Constable of Goalpara Police is taking over possession of the said disputed land and by way of
filing various cases against the land owner Ajmal Haque and said Abdur Rahman is a close associate of one Samsul Haque who is a land related
criminal. Further from the documents relating to T.S. 15/15, it reveals that said Hossain Ali lodged the civil suit against Ajmal Haque and one another
claiming the right, title and possession over the said disputed land. From all the documents it reveals that there is serious dispute regarding the
possession over the land and the informant cannot even claim the possession over the said land and in that pretext filing the case against the day
labourer/ the petitioners alleging trespass and mischief on their part cannot be sustained in the given circumstances.
It is to be noted that the respondent/informant did not turn up to contest the present proceeding despite service of notice, after his appearance in
this case. As such the documents submitted in the case remains unrebuted. Even otherwise also, those documents relates to official communication
cannot be discarded. From the matters on record, it is discernible that filing of FIR on the part of the respondent/informant against such labourer in
respect of the disputed land is not maintainable while the ownership of the land, itself is in serious dispute.
The inherent power under Section 482 Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i)
to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, and (iii) to otherwise secure the ends of justice.
The power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under
Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of
the court that grave miscarriage of justice would be committed if the trial is allowed to proceed.
The High Court can quash that process in exercise of its power under Section 482, Cr.P.C and can also examine whether there is any legal
evidence justifying the conviction [Rajendra Vs. T. Gangooly, AIR 1972 SC 470 : 1972 CrLJ 548; Rishi Anand Vs. Govt. of NCT of Delhi, AIR 2002
SC 1531 : 2002 CrLJ 2022 : (2002) 4 SCC 72 : 2002 (2) Crimes 28 (SC)]
In 2011 3 SCC 351, Hrshemdra Kumar D Vs. Rebatilata Koley & Ors. the Hon’ble Supreme Court held that quashing of proceeding by
appreciating evidence is permissible on consideration of the defence at prima facie stage. It is further held that it cannot be laid as an absolute
proposition that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials
relied upon by the accused which are in the nature of public documents or materials which are beyond suspicion or doubt, in no circumstances can be
look into by the High Court in exercise of his jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of
the code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in
a case where complaint is sought to be quashed., it is not proper for the High court to consider the defence of the accused or embark upon an enquiry
in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt placed
by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his
defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High court may look into the
materials which have significant bearing on the matter at prima facie stage. Criminal prosecution is a serious matter, it affects the liberty of a person.
No greater damage can be done to the reputation of a person than dragging him in a criminal case.
In the given case it has been apparently made out that the present petitioners were unnecessarily dragged to a criminal proceeding and allowing
such criminal proceeding against the petitioners would result gross injustice to them and tantamount to an abuse of process of the Court. In view of the
matter, this Court is of opinion that it is a fit case to invoke the provision of Section 482 Cr.P.C. despite the fact that the trial has commence. The
petition is accordingly allowed. The entire proceeding pertaining to the G.R. Case No. 2526/14 arising out of Goalpara P.S. Case no. 719/2014 under
Sections 447/427/34 IPC pending in the Court of learned Chief Judicial Magistrate, Goalpara, Assam is hereby quashed and set aside.