Ashutosh Kumar Modak @ Bittu Modak vs State Of Jharkhand

Sanjay Kumar Dwivedi, J

1.Vide order dated 02.09.2024, notices were directed to be issued upon respondent no.2, which were effected and on 30.09.2024, the matter was adjourned as in spite of valid service of notice, respondent no.2 has not appeared. The matter was further adjourned with a view to provide one more opportunity to respondent no.2 on 22.10.2024 and in spite of that, nobody has appeared till date on behalf of respondent no.2, which clearly suggests that respondent no.2 is not interested in contesting the present case.

Heard Mr. Lukesh Kumar, learned counsel for the appellants and Mr. Rakesh Ranjan, learned counsel for the State.

I.A. No.9151 of 2024 has been filed for condonation of delay of 971 days in preferring the present appeal.

Learned counsel for the appellants submits that the delay has occurred as earlier Cr.M.P No.969 of 2023 was filed before this Court which was dismissed with liberty to file an appeal in light of Section 14-A of the SC/ST (Prevention of Atrocities) Act. He submits that the case of the appellants is covered in light of the judgment passed by the Hon'ble Allahabad High Court in the case of Ghulam Rasool Khan and others v. State of U.P. and others, reported in 2022 SCC OnLine All 975 as Section 14-A (3) of the SC/ST (Prevention of Atrocities) Act has been struck down by the Full Bench of the Hon'ble Allahabad High Court.

Learned counsel for the State submits that sufficient ground is not made out to condone the said delay.

In view of the above facts and considering the judgment passed by the Full Bench of the Hon'ble Allahabad High Court in the case of Ghulam Rasool Khan (supra), the Court finds that sufficient reason is made out to condone the delay and, as such, the delay of 971 days in preferring the present appeal is, hereby, condoned.

Accordingly, I.A. No.9151 of 2024 is allowed and disposed of.

This appeal is preferred for quashing the entire criminal proceeding including the order taking cognizance dated 25.09.2019 passed in C.P. Case No.959/2018 (SC/ST Case No.01/2017) by the learned District and Additional Sessions Judge 1st cum Special Judge, Bokaro, pending in that Court.

Learned counsel for the appellants submits that for the same allegation, earlier Sector IV P.S. Case No.01/2017 was lodged on 08.01.2017, corresponding to G.R. Case No.42/2017, which was investigated by the police and final form was submitted, whereby, the appellants have not been sent up for trial. He submits that thereafter protest cum complaint petition was filed alleging therein:

In the year 2016, respondent no.2 has purchased the land situated at Mouza Narayanpur, Mouza No.33, Khata No.175, Plot No.2001 and 2002, area measuring 6 ½ decimals and the said land is in possession and has also got his mutation done for the said land. On 23.12.2016 at about 09:00 A.M., under conspiracy the accused persons namely Gopal Modak, Bittu Modak, Sintu Modak, Annul Khalifa, Latif Sheikh, Imran Khalifa came to the land in question with the intention to grab the said land and they started digging over the same. On this the complainant has protested and objected the same, thereafter, the accused persons started assaulting respondent no.2 and his wife Bindu Devi and used insulting words and caste work like Manjhi and they also forcefully driven out from the land in question, when the witnesses came to the place of occurrence, the accused persons forcefully started constructing boundary wall. Thereafter for the said act, respondent no.2 gave a complaint to the Pindrajora Police Station but the said was not registered and thereafter on 28.12.2012, he made a complaint to SC/ST Thana, Sector IV, B.S. City, Bokaro and an FIR was lodged bearing SC/ST Case No.01/2017, corresponding to G.R. Case No.42/2017 for the offence under Section 387, 506, 34 of IPC and under Section 3(x) (iv) (V) of SC/ST (Prevention of Atrocities) Act and intentionally the police by suppressing the evidences, submitting a final form in favour of the accused persons and hence, the complaint was filed.

Learned counsel for the appellants further submits that earlier Sector IV P.S. Case was investigated by the police and charge-sheet was not submitted against the appellants and it was pointed out that the appellants' uncle has also purchased the land to the tune of 15 decimals of land from the same descendants from whom the complainant has also purchased the

land and the allegations were made that the appellants are encroaching the land of the complainant, however, on investigation the police has not found the allegation as correct and in view of that the appellants have not been sent up for trial. He submits that in this background, the learned Court only on the protest petition has been pleased to take cognizance against the appellants that too under the SC/ST (Prevention of Atrocities) Act. He also submits that if any case is made out, that is civil in nature and if the case is civil in nature, the case of the appellants is covered in light of the judgment passed by the Hon'ble Supreme Court in the case of Hitesh Verma v. State of Uttarakhand and another, reported in (2020) 10 SCC 710. He refers paragraphs 14, 16 and 18 of the said judgment, which read as under:

“14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435 : (2008) 3 SCC (Cri) 527] . The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view (sic) [Ed. : This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:“Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view.”] . The Court held as under : (SCC pp. 443-44, para 28)

“28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car

which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.”

(emphasis in original)

There is a dispute about the possession of the land which is the subject-matter of civil dispute between the parties as per Respondent 2 herself. Due to dispute, the appellant and others were not permitting Respondent 2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the civil court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.

Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.”

Learned counsel for the State submits that the police has investigated the matter and submitted final form, however, the learned Court has been pleased to take cognizance.

It is an admitted position that the earlier filed Sector IV P.S. Case No.01/2017 was investigated by the police and final form was submitted in favour of the appellants saying that the complainant has alleged that the appellants are encroaching upon the land, which was purchased by both the sides from the same descendants of the property in question, however, on the protest petition, the learned Court has been pleased to take cognizance. Thus, it appears that for the land dispute, maliciously the case under the SC/ST (Prevention of Atrocities) Act has been tried to be made out and the learned Court has been pleased to take cognizance against the appellants. If such a situation is there, the case of the appellants is covered by the judgment passed by the Hon'ble Supreme Court in the case of Hitesh Verma (supra) on which reliance has been placed by the learned counsel for the appellants.

In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 25.09.2019 passed in C.P. Case No.959/2018 (SC/ST Case No.01/2017) by the learned District and Additional Sessions Judge 1st cum Special Judge, Bokaro, pending in that Court are, hereby, quashed.

Accordingly, this appeal is allowed and disposed of.