V. Rajan v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE ANANDA KUMAR MUKHERJEE CRR No. 6 of 2022 V. RAJAN ... PETITIONER

Versus

THE STATE ... OPPOSITE PARTY For the petitioner : Mr. Rakesh Pal Gobind, Advocate For the State : Mr. Sumit Karmakar, Advocate Heard on : 28.04.2022 Judgment on : 29.04.2022 ANANDA KUMAR MUKHERJEE, J.

1.

The petitioner filed this revisional application under Section 401 read with Section 482 of Criminal Procedure Code, 1973 praying for quashing of FIR No. 4 of 2022 of PS Nancowry under Section 447 of Indian Penal Code and Section 7 and 8 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Amendment Regulation, 2012 pending before learned Judicial Magistrate Car Nicobar.

2.

It is the case of the petitioner that he is a permanent Government servant, working in the Indian Reserve Battalion, Andaman and Nicobar Islands. The petitioner was born and

brought up and pursued his education at Kamorta (Nancowry). He is a permanent resident of Karmorta (Nancowry) village, under the jurisdiction of Nancowry Police Station. On 30.09.2002 the petitioner was selected for the post of a constable of Indian Reserve Battalion, Andaman and Nicobar Islands and was promoted to the post of Head Constable (GD) on 14.10.2008.

3.

During the service tenure of the petitioner there is no adverse finding against him anywhere in the islands. The petitioner was born at Karmorta where the petitioner's father permanently resides. The petitioner's father runs a vegetable shop in the market area of Sree Sree Radha Krishna Temple. One K.T.Rajan who had constructed a house near the shop has left the islands and handed over the shop to the petitioner's father Veera Pandian through Temple Committee of Sree Sree Radha Krishna Temple. The said house was thereafter allotted to petitioner's father by the Allotment order No. 59 dated 01.01.2019 for residential purpose on a monthly rent of Rs. 300/-. The father of the petitioner pays rent to the Temple Committee and the Central Public works Department. The allotment of land was made on 01.01.2019 for a period of five years with restriction that only semi permanent structure can be erected for residential purpose.

4.

It is the further case of the petitioner that his father is a resident of Kamorta island from the year 1963 and the petitioner is a resident of the said island since his birth. The petitioner has produce several documents in support of his birth in Kamorta, the land allotment certificate from the Temple Committee, certificates relating to his education under the Central Board of Secondary Education, Migration Certificate, Transfer Certificate and a Local Certificate in the name of the petitioner V. Rajan dated 03.12.2018 which shows that he belongs to category no. 2 i.e. a person who does not belong to any of the categories at (1) above, but who has had a minimum of 10 years continuous education in the Islands leading to acquiring of the minimum educational qualifications laid down for the post under the Andaman and Nicobar Administration to which appointment is sought.

5.

The contention of the petitioner is that he has been falsely implicated in a case registered against him on 19.02.2022 under Section 7 and 8 of Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Amendment Regulation, 2012 and Section 447 of Indian Penal Code on a false allegation that he has constructed a house at Kamorta island. It is further contended that the petitioner was posted temporarily on Indian Reserve Battalion Guard duty on Kamorta island in the year 2019-2020 and during his temporary posting the petitioner

used to visit the house of his father who is an old and aged person and used to spent time in his father's house on the Sree Sree Radha Krishna Temple Committee land.

6.

On 06.03.2021 a Memorandum was issued by the Commandant, IRBn, Andaman and Nicobar Islands with articles of charge along with list of document and witnesses with allegation upon the petitioner that while he was temporarily posted at IRBn Guard Kamorta in the year 2019 and 2020 he was residing with one married lady Smt. D. Shakuntala, Police Constable along with their respective children in his own semi RCC house, constructed by the petitioner in a tribal area which spread negative message to the tribal society and also violate the sanctity of the tribal community of that island.

It is contended by the petitioner that in the Department Proceeding which was initiated against him has been concluded and a punishment has been imposed upon him by the Disciplinary Authority whereby he has been reverted from the post of Head Constable to the rank of a Constable (GD) for a period of two years with immediate effect and his increment of pay has been stopped during this period of reduction of rank and on expiry of this period the reduction will have the effect of postponing his future increments of pay.

continuing the proceeding against him under Section 447 of the Indian Penal code, read with Section 7 and 8 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Amendment Regulation, 2012. The petitioner urged that a person cannot be punished for the same offence twice which is a violation of Article 20 of the Constitution of India. Petitioner has sought for quashing of the FIR and all other proceeding which arising thereof.

7.

Learned advocate for the state strongly opposed the prayer and submitted that the petitioner during his posting at Kamorta has demolished the old structure in the Temple Committee premise and has constructed a new house. Furthermore, the petitioner has encroached a part of footpath which is a tribal area and thereby violated provision under Section 7 and 8 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Amendment Regulation, 2012. 8.

It is argued that there is sufficient materials in the FIR and after completion of investigation police has already submitted charge sheet against the petitioner on 18.04.2022. Learned advocate for the State contended that the revisional application is without merit and the same is liable to be dismissed.

9.

Having considered the arguments advanced by the learned advocates for the petitioners as well as for the State and on considering the materials and the documents filed by the petitioner together with the contents of the Case Diary, specially the statement of witnesses namely V. Goraiah, Arokiya Alphones, Aslam Majid , Madi Alagan, Vigneshwaran, Razak ali and Veera Pandian. Admittedly the petitioner was temporarily posted at Kamorta in the year 2019 to 2020. The allegation against him is that he has constructed a house on the tribal land and he has encroached portion of the tribal land without any prior sanction from the authority which given rise to this case. Head Constable 261 Mr. P.K.Das has lodged a complaint on the basis of which FIR has been drawn up. It is undisputed that the petitioner hails from Kamorta island and has attended his school in that local area. The dispute in this case revolves around the allegation that the petitioner has encroached tribal land and constructed a house over the Temple Committee land. 10.

Learned advocate for the petitioner referred to the Allotment order No. 59 dated 01.01.2019 (Annexure P3) and submitted that the land was allotted to his father Veera Pandian for five years and the house belongs to his father, but to harass the petitioner it has been falsely alleged that the house has been constructed by him on the Tribal land in the Temple Premises. It is also argued that 60 Sq.mtrs of land has been allotted to his

father for residential purpose where he can construct a semi permanent structure and the present structure which stand on the land is a semi permanent structure. Therefore, there has been no violation of any regulation as alleged in the FIR. 11.

In my considered view the allegation made against the petitioner in the FIR and the submission made on behalf of the State to counter such story are matters based on facts which can only be considered at the time when evidence is adduced. Since the matter rests in the realm of evidence, it cannot be decided at this stage while considering the application under Section 482 of Cr.P.C as to whether the defence raised by the petitioner are wholly correct and acceptable. 12.

It is hereby made clear that prima facie materials in the Case Diary attract the provision under Section 7 and 8 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Amendment Regulation, 2012 as well as Section 447 of the Indian Penal Code against the petitioner, as such this is not an appropriate case to relieve the petitioner from the criminal proceeding against him. It is a well established principle of law that a Departmental Proceeding and a criminal proceeding may arise out of the same wrong and one does not create an embargo for the other. The nature of proceedings and object being different, the rule of double jeopardy will not be attracted to such cases.

13.

Under such facts and circumstance I am not convinced to hold that the allegations against the petitioner are wholly unfounded.

14.

I find no merit in the revisional application and the same is accordingly dismissed.

15.

Let the Case Diary be returned to learned advocate for the State. A copy of the judgement be sent to learned Judicial Magistrate, Car Nicobar for information.

16.

Urgent certificate copies of this judgement, if applied for, may be supplied to the parties upon compliance of usual formalities.

(ANANDA KUMAR MUKHERJEE, J.)