Dismissed

Hira Devi v. State of Hp

Himachal Pradesh HC25 Aug 2017CRMMO/229/2016

Case brief

AI extract

What is this about?

The High Court dismissed petitions seeking quashing of criminal complaints and FIRs alleging criminal intimidation and insult. The court held that since the FIRs had resulted in chargesheets based on investigation reports, quashing was impermissible as the court cannot undertake a pre-trial inquiry into evidence.

What did the court decide?

Petitions for quashing of complaints and FIRs were dismissed; pending applications disposed of.

Hira Devi Vs State of Hp — Criminal Trial and Appeal | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr. MMO No. 229 of 2016 alongwith Cr.MMO No. 249 of 2015 Judgment reserved on: 22.8.2017 Date of decision: August 25^th , 2017

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____________________________________________________________ 1. Cr.MMO No. 229 of 2016 Smt. Hira Devi and another …Petitioners. Versus State of H.P. and others …Respondents. 2. Cr.MMO No. 249 of 2015 Hira Devi and others …Petitioners. Versus State of H.P. and others …Respondents.

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Coram

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? No

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For the Petitioner(s) : Mr. Adarsh Sharma, Advocate. For the Respondent(s) : Ms. Meenakshi Sharma, Addl. A.G. with Mr. Neeraj K. Sharma, Dy. A.G. for respondent No.1. Mr. Rajiv Rai, Advocate, for respondents No. 2 and 3.

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Tarlok Singh Chauhan, Judge

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Since the facts in both these cases are common,

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therefore, they were taken up together for consideration and are being disposed of by common judgment.

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Cr.MMO No. 229 of 2016 has been filed by the accused/petitioners for quashing of complaint No. 16-3/2015 dated 16.1.2015 filed before the learned Judicial Magistrate 1^st Class, Ani, District Kullu, H.P.

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1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes

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under Sections 190 of Cr.P.C. for taking cognizance of offence under Section 500 read with Sections 147, 148, 149 and 506 IPC. Whereas, Cr.MMO No. 249 of 2015 has been filed by the accused/petitioners for quashing of FIR No. 6 of 2015 dated 20.1.2015 registered at Police Station, Brow, District Kullu and consequent proceedings pending before the learned Judicial magistrate 1^st Class, Anni, District Kullu H.P. being case No. 662/2 of 2015 under Sections 147, 148, 149, 451 and 506 IPC. 3. The common allegations in both these cases against the petitioners are that on 8.1.2015 at about 5.00 p.m. the meeting of the devotees of Devta Suryavanshi was being held in Village Bayal, Tehsil Nirmand, District Kullu, H.P. It was alleged that one Hari Singh and Dinesh who were present in the General House started shouting and calling the names and defamatory words against the complainant/respondents. It was further alleged that thereafter as per the plan and conspiracy and meetings of minds of the accused persons were joined by the petitioners and started uttering defamatory words against Yash Pal and Devinder Negi. On these allegations and other allegations a complaint came to be filed by the respondents before the learned Judicial Magistrate, Anni, District Kullu, on 16.1.2015. It is averred that the complaint had initially been preferred by both the respondents i.e. Yash Pal and Devinder Negi with the police and same was entered into daily diary. Therein, the petitioners have neither been attributed any role nor have been shown to be present on the spot of the

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occurrence and it is only latter that they have been roped because the counter complaint by the petitioners has culminated into FIR No. 4 of 2015 and the present proceedings are nothing but in the nature of counter-blast to the lodging of the FIR and, therefore, should be quashed and set-aside.

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Respondent No.1 has filed its reply wherein it has been averred that pursuant to the complaint lodged by respondents No. 2 and 3, proceedings under Section 107/150 Cr.P.C. stand initiated and are pending in the Court of SDM, Anni. Apart from this, it is further averred that complaint under Section 156(3) Cr.P.C. was filed by respondents No. 2 and 3 before the Court of learned Judicial magistrate 1^st Class, Anni to which the FIR No. 6 of 2015 dated 20.1.2015 under Sections 147, 148, 149, 451 and 506 IPC has been registered at Police Station, Brow and the same was investigated by ASI, Tilak Raj. During the course of the investigation, statements of various witnesses were recorded under Section 161 Cr.P.C. on 22.1.2015. Statements of as many as five witnesses were recorded on that date, who have categorically stated that petitioner No.2 alongwith other petitioners was very much present on the spot at the time of alleged occurrence and all the petitioners had formed an unlawful assembly and entered through the gate and threatened the respondents No. 2 and 3 with life.

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5 I have heard learned counsel for the parties and gone through the records of the case carefully.

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Section 482 of the Code empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court and to quash the proceedings instituted on the complaint but such power should be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the compliant do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent power under section 482 of the Code.

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In State of Madhya Pradesh vs. Awadh Kishore Gupta, (2004) 1 SCC 691 , Hon’ble Supreme Court culled out the following principles for exercise of power under Section 482 of the Code:-

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“(i) To give effect to an order under the Code.

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(2) To prevent abuse of the process of court.

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(3) To otherwise secure the ends of justice.

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(4) Court does not function as a court of appeal or revision.

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(5) Inherent jurisdiction under Section 482 though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.

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(6) It would be an abuse of process of court to allow any action which would result in injustice.

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(7) In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts t abuse of the process of court.

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(8) When no offence is disclosed by the complaint, the court may examine the question of fact.

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(9) When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would not be sustained-That is the function of the trial Judge.

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(10) Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.

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(11) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed.

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(12) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. (13) When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance-It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person-The allegations of mala fides against the informant are of no consequence and cannot be itself be the basis for quashing the proceedings.”

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In Amit Kapoor versus Ramesh Chander and

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another , (2012) 9 SCC 460 , the Hon’ble Supreme Court laid down the principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing criminal proceedings, particularly, the charge either in exercise of jurisdiction under Section 397 or Section 482 and same are summarized as follows:-

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“1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie

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establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

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The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

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Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

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Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

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The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

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The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

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Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

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Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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It is neither necessary nor is the court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

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Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

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In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

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Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

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{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v.O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v.s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v.

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State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.

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These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down ,the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance of the requirements of the offence.”

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In C .P. Subhash vs. Inspector of Police Chennai and others (2013) 11 SCC 599 , it was once again reiterated by the Hon’ble Supreme Court that where complaint prima facie makes out commission of offence, High Court in ordinary course should not invoke its powers to quash such proceedings, except in rare and compelling circumstances and it was observed as under:-

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“[7] The legal position regarding the exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances enumerated in the decision of

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this Court in State of Haryana and Ors. v Ch. Bhajan Lal and Others, 1992 Supp1 SCC 335. 8. Reference may also be made to the decision of this Court in Rajesh Bajaj v. State, NCT of Delhi, 1999 3 SCC 259where this Court observed:

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"...If factual foundation for the offence has been laid down in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence."

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To the same effect is the decision of this Court in State of Madhya Pradesh v. Awadh Kishore Gupta, 2004 1 SCC 691where this Court said:

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“11...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the

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complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code "

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Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr., 2009 3 SCC 78and Harshendra Kumar D. v. Rebatilata Koley etc., 2011 3 SCC 351reiterate the above legal position.”

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10 Thus, what can be considered to be settled on the basis of the exposition of law by the Hon’ble Supreme Court is that while exercising its jurisdiction under Section 482 of the Code, High Court has to be both cautious as also circumspect. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint/FIR/charge-sheet etc. discloses a criminal offence or not depends upon the nature of facts alleged therein.

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Reverting back to the facts, it would be noticed that the official respondents i.e. respondent No.1 in its reply has categorically stated that during the course of investigation, the witnesses examined under Section 161 Cr.P.C. had categorically deposed about the presence of all the petitioners. There is nothing on record to contradict this version. The only argument addressed by Sh. Adarsh Sharma, Advocate, is that the present

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proceedings are only by way of counter-blast to FIR No. 4 of 2015 which has been lodged by the petitioners against the respondents.

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However, I really do not find any substance in this contention as the conduct and impartiality of the Investigating Agency in this case cannot be doubted as the Investigating Agency has after taking into consideration the complaints of both the contesting parties, lodged separate FIRs. Moreover, merely because an FIR is registered first in point of time, the same cannot be presumed to be more genuine than the FIR recorded later in point of time. If that parameter is to be applied, then it would be noticed that it was at the instance of respondents No. 2 and 3 that the Investigating Agency recorded a G.D. entry wherein it is specifically stated that Hari Singh and Dinesh Kumar, who are the accused alongwith the present petitioners, though present on the spot, did not present any complaint to the Police on 8.1.2015. It is further not in dispute that it is only on 9.1.2015 that the accused Hari Singh presented a complaint which ultimately has culminated into FIR No. 4 of 2015.

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In addition to the aforesaid, it would also be noticed that in Cr.MMO No. 249 of 2015, the petitioners have only prayed for quashing of FIR No. 6 of 2015 dated 20.1.2015 and the consequent proceedings before the learned Judicial Magistrate 1^st Class, Anni, whereas they have not questioned the final report presented before the learned Magistrate under

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Section 173 Cr.P.C. that was presented after thorough investigation and, therefore, in absence of any challenge to the final report, the FIR cannot be quashed as held by this Court in Cr.MMO No. 183 of 2014 titled Nancy Bhatt and another vs. State of H.P. and another , decided on 6.4.2015 wherein it was observed as follows:

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“2. A preliminary objection has been raised by the respondents that once the FIR has culminated in charge-sheet, the present petition has been rendered infructuous, because it is not the FIR but the chargesheet which forms the basis of criminal trial.

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3. I have heard learned counsel for the parties and gone through the records of the case carefully. 4. In State of Punjab vs. Dharam Vir Singh Jethi 1994 SCC (Cri.) 500 , the Hon’ble Supreme Court held that when the chargesheet was submitted, quashing of FIR is not permissible since it would be open to the Court to refuse to frame charge. It was observed as under:

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“2. Heard learned counsel for the State as well as the contesting respondent. We are afraid that the High Court was not right in quashing the First Information Report on the plea that the said respondent had no role to play and was never the custodian of the paddy in question. In fact it was averred in the counter-affidavit filed in the High Court that the said respondent had acted in collusion with Kashmira Singh resulting in the latter misappropriating the paddy in question. At the relevant point of time the respondent concerned, it is alleged, was in overall charge of the Government Seed Farm, Trehan. This allegation forms the basis of the involvement of the respondent concerned. The High Court was, therefore, wrong in saying that the respondent concerned had no role to play. A specific role is assigned to him, it may be

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proved or may fail. In any case, pursuant to the First Information Report the investigation was undertaken and a charge sheet or a police report under Section 173(2) of the Code of Criminal Procedure was filed in the court. If the investigation papers annexed to the charge sheet do not disclose the commission of any crime by the respondent concerned, it would be open to the court to refuse to frame a charge, but quashing of the First Information Report was not permissible.

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5. In Vineet Narain and others vs. Union of India and another (1996) 2 SCC 199, the Supreme Court after refusing to quash the FIR, held that when a chargesheet was filed in the competent Court, it is that Court alone which will then deal with the case on merits, in accordance with law.

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6. This legal position has been reiterated in number of cases. (See: Anukul Chandra Pradhan vs. Union of India and others (1996) 6 SCC 354 and Jakia Nasim Ahesan and another vs. State of Gujarat and others (2011) 12 SCC 302).

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7. Admittedly the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the Code of Criminal Procedure (for short ‘Code’). The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police. Investigation is the exclusive domain of the police. Ordinarily, it is only when the charge sheet is filed that the Court is empowered either to take cognizance and to frame charge or to refuse to do the same.

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8. The FIR is the sheet anchor on the basis of which the investigation ensues. However, once the FIR on the basis of which the investigation was initiated has culminated into a chargesheet, the FIR

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does not remain the sheet anchor because the same alone then cannot be read and has to be read along with the material gathered by the investigating agency during the course of the investigation.

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9. It would, therefore, not be permissible for this Court to quash the FIR or else that would amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case. Further, adverting to those facts and giving findings on merits would otherwise result in the grossest error of law because this Court in exercise of its jurisdiction under Section 482 of the Code cannot undertake pretrial of a criminal case.”

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In view of the aforesaid detailed discussion, I find no merit in these petitions and the same are accordingly dismissed. Pending applications, if any, also stand disposed of.

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August 25^th , 2017 (GR)

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(Tarlok Singh Chauhan) Judge.

Hira Devi v. State of Hp

Case brief

What is this about?

What did the court decide?

Hira Devi v. State of Hp

Case brief

What is this about?

What did the court decide?

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