Laxmi Kant Konark and Others vs State of Jharkhand and Others

Rongon Mukhopadhyay, J.—Heard Mr. Indrajit Sinha, learned counsel on behalf of the petitioners and Mr. Sanjay Kumar, learned counsel on behalf of the opposite party No. 2.

In this application, the petitioners have prayed for quashing the entire criminal proceeding in connection with C/1 Case No. 509 of 2007 including the order dated 04.01.2008 passed by the learned Judicial Magistrate, Jamshedpur whereby and whereunder cognizance has been taken for the offences punishable under Sections 452, 453, 384, 323, 341, 504, 506, 120B and 109 of the Indian Penal Code.

A complaint case was filed by the complainant - opposite party No. 2 in which it was stated that the complainant is the resident of quarters No. L 4/148, Straight Mile Road, Sidhgora, Jamshedpur and that he is a sub-contractor and is residing at the aforesaid address with his family members since the last 20 years. It has been alleged that on 20.03.2007, a notice was issued from the office of Sub-Divisional Magistrate, Dhalbhum, Jamshedpur to the complainant regarding pendency of B.P.L.E. Case No. 8 of 2007 and it was mentioned that on 10.04.2007, the complainant was to appear either in person or through his counsel in the said case. It has been alleged further that on 30-31st March 2007 at about 2:30 A.M., accused Nos. 1 to 3 along with 15-20 persons came to his residence armed with lathi and hockey sticks and they have forcibly taken away the household articles of the complainant and had damaged the wall of the house of the complainant and has also beaten the complainant''s brother. It has further been alleged that the accused Nos. 1 to 3 disclosed that they were merely complying the orders of the accused Nos. 4 and 5. After the complaint case was filed, an inquiry was conducted and on 04.01.2008, the learned Judicial Magistrate at Jamshedpur was pleased to pass an order by which cognizance was taken for the offences punishable under Sections 452, 453, 384, 323, 341, 504, 506, 120B and 109 of the Indian Penal Code.

The learned counsel for the petitioners has submitted that the order dated 04.01.2008 has been passed in a mechanical manner and there is no application of independent judicial mind by the learned Magistrate while taking cognizance. Learned counsel for the petitioners further submits that the petitioner Nos. 1, 2 and 3 are the employees of the Security Department of JUSCO Ltd., whereas the petitioner No. 4 is the head of the Estate Division of TISCO Ltd. and the petitioner No. 5 was the Managing Director of M/s. Tata Steel Ltd. The learned counsel for the petitioners has also submitted while referring to the application filed on behalf of the complainant - opposite party No. 2 that, the B.P.L.E. proceeding in which he has stated that without giving any notice, the house for which the encroachment case was instituted was demolished by the police with the aid of Magistrate on 15.04.2007 whereas in the complaint petition, the date of demolition has been mentioned as 30-31st March 2007 at about 2:30 A.M. He has also drawn my attention to the order dated 15.05.2007 passed in B.P.L.E. proceeding by the learned S.D.M., Dhalbhum, Jamshedpur in which it was held that the land in question is a government land which had been given to TISCO Ltd. on lease and the complainant - opposite party No. 2 had encroached upon the said land. The learned counsel for the petitioners has further submitted that even if the allegations made in the complaint petition is taken to be true, the same has been levelled against the petitioner Nos. 1, 2 and 3 and so far as petitioner Nos. 4 and 5 are concerned, they cannot be fastened with vicarious liability, as in criminal law, there is no concept of vicarious liability. He has also referred to the judgment in the cases of Anjani Kumar Vs. State of Bihar and Another, , All Cargo Movers (I) Pvt. Ltd. and Others Vs. Dhanesh Badarmal Jain and Another, , Munivel Vs. State of Tamil Nadu, , S.K. Alagh Vs. State of U.P. and Others, and Maksud Saiyed Vs. State of Gujarat and Others, .

The learned counsel for the opposite party No. 2, on the other hand, while supporting the impugned order dated 04.01.2008 has submitted that the petitioners had taken the law in their own hands and without there being any order of the competent Court, the wall of the opposite party No. 2 was demolished and the household articles were taken away. He has further submitted that although the Sub-Divisional Magistrate, Dhalbhum, Jamshedpur has passed the order dated 15.05.2007 holding that there has been an encroachment by the complainant, but the same is contradicted by the police report dated 15.05.2007 in which it was specifically stated that the complainant was residing behind quarters No. L4/148 in which the JUSCO/TISCO officials had demolished the house, although the case was pending before the learned Sub-Divisional Magistrate, Dhalbhum, Jamshedpur. He therefore submits that the order dated 15.05.2007 was passed in haste as the said order does not disclose that the report of the police which was called for by the Sub-Divisional Magistrate, Dhalbhum, Jamshedpur was taken into consideration. He thus submits that the fact remains that the house of the opposite party No. 2 was demolished without there being any authority of law and in such circumstances, the petitioners are liable to be proceeded against in the criminal case.

After hearing the learned counsel for the parties and after going through the records, I find that in the complaint petition, the date of occurrence has been alleged to be in the mid-night of 30-31st March 2007 on which date the house of the opposite party No. 2 is alleged to have been demolished and this fact finds support from the report of the police which was submitted pursuant to the order of the Sub-Divisional Magistrate, Dhalbhum, Jamshedpur in connection with the land encroachment proceeding. In the report of the police, it has specifically been mentioned on inquiry that the house of the opposite party No. 2 which was situated behind the quarters No. L4/148 was demolished and direction was given to remove the structures which have come up on the government land. In the complaint petition, specific allegations have been levelled against the petitioner Nos. 1 to 3 that on the date of occurrence, they had forcibly taken away the household articles of the complainant and had damaged the wall of the house of the complainant. There is no allegation in the complaint petition that the house was itself demolished, whereas in the application before the Sub-Divisional Magistrate, Dhalbhum, Jamshedpur it has been clearly stated that the house for which the encroachment case was pending had been demolished by the police on 15.04.2007. In the police report dated 15.05.2007 mention has been made with respect to demolition of house of the complainant - opposite party No. 2. Although, there seems to be some contradictions with respect to the demolition of the wall of the house of the complainant - opposite party No. 2 or the house itself, but the fact remains as to what appears from the complaint petition as well as from the police report that in fact demolition had taken place without their being any order from the competent court of law. In the case of Anjani Kumar Vs. State of Bihar and Another, , in which the Hon''ble Supreme Court while considering the ambit of powers to be exercised under Section 482 of the Cr.P.C. had held in the facts and circumstances of that case, "since the complaint case was filed as a counter blast to the action taken by the government officials in his official capacity as such, the continuance of such proceeding would be an abuse of the process of law."

In the case of Maksud Saiyed Vs. State of Gujarat and Others, , while considering the vicarious liability, it was held as follows:

" Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz. as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability." 8. In the case of S.K. Alagh Vs. State of U.P. and Others, , it was once again reiterated by the Hon''ble Supreme Court that in absence of any provision laid down under the Statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself.

In the case of Munivel Vs. State of Tamil Nadu, , while considering the Section 149 of the Indian Penal Code, it was held as follows:

"Section 149 of the Indian Penal Code provides for vicarious liability. If an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof or such as the members of that assembly knew that the offence to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was member would be guilt of the offence committed. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. Whether a member of such unlawful assembly was aware as regard likelihood of commission of another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in that behalf. [See Rajendra Shantaram Todankar Vs. State of Maharashtra and Others, " 10. In the case of "All Cargo Movers (I) Pvt. Ltd. and ors. Vs. Dhanesh Badamal Jain and anr." (supra) reported in (2008) 1 JLJR 51 (SC), it was held by the Hon''ble Supreme Court that "it is one thing to say that the Court at this juncture would not consider the defence of the accused, but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged when it is found to be mala-fide or otherwise an abuse of the process of the Court. Superior courts while exercising this power should also strive to serve the ends of justice."

The learned counsel for the petitioner in the context of the aforesaid judgments have thrived to impress upon the court that the allegations made against the petitioners more specifically against petitioner Nos. 1, 2 and 3 was a counter blast to the case instituted by the petitioner No. 3 on 06.03.2007 in Sidhgora Police Station for encroaching upon the land of the company and for which B.P.L.E. Case No. 8 of 2007 was also initiated. The factual aspects with respect to the demolition of the wall/house of the complainant - opposite party No. 2 appears to be disputed, but the fact remains that the complainant has alleged that on 30-31st March 2007, the wall of his house was demolished and household articles were taken away by the petitioner Nos. 1, 2 and 3. Whereas, the police report suggest that the house was itself demolished which report was not taken into consideration by the learned Sub-Divisional Magistrate, Dhalbhum, Jamshedpur. However, with respect to the allegations against the petitioner Nos. 4 and 5, the complaint petition merely discloses that it was the petitioner No. 1, 2 and 3 who had stated that they were complying the orders of the accused Nos. 4 and 5 (petitioner Nos. 4 and 5). This in my view has been deliberately inserted in the complaint petition by the complainant in order to entangle the higher officials of the company in the criminal case. It cannot be by any stretch of imagination be said that the petitioner Nos. 4 and 5 were personally liable for the alleged incident which had taken place on 30-31st March 2007. In absence of any vicarious liability and in absence of any allegations against the petitioner Nos. 4 and 5, the criminal proceeding against them cannot be allowed to be continued. However, as discussed above, since there is a specific allegation made out in the complaint petition against the petitioner Nos. 1, 2, and 3, and in view of the disputed question of fact with respect to the demolition of the wall/house of the complainant - opposite party No. 2, no interference is warranted in the case of petitioner Nos. 1, 2 and 3.

Accordingly, the entire criminal proceedings including the order dated 04.01.2008 passed by the Judicial Magistrate, Jamshedpur in connection with C/1 Case No. 509 of 2007 is quashed, so far as petitioner Nos. 4 and 5 are concerned. As regards petitioner Nos. 1, 2 and 3, there being no merit in this application, the same is hereby dismissed.

This application is allowed in part.