Dismissed

Pratap Singh v. State of Haryana

Punjab & Haryana HC12 Nov 2013CRM-M/1093/2013

Case brief

AI extract

What is this about?

This order dismissed two petitions seeking discharge and quashing of criminal proceedings. The single-judge Bench held that quashing under Section 482 Cr.P.C. was inappropriate as the High Court cannot appreciate evidence at this stage. The Court left the doors open for the trial Court to alter charges under Section 216 or confer benefit under Section 221(2) based on evidence.

What did the court decide?

Petitions dismissed; petitioners directed to move trial Court for alteration of charges or lesser offence under Section 216/221(2) Cr.P.C.

Pratap Singh Vs State of Haryana — Civil Procedure and Limitation | Punjab & Haryana HC (2013)

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CRM M-1093 of 2013

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

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CHANDIGARH.

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Date of Decision: November 12, 2013

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CRM M- 1093 of 2013

Pratap Singh

…..Petitioner

Vs.

State of Haryana

…..Respondent

CRM M- 25360 of 2013

Mohan Lal Saini

…..Petitioner

Vs.

State of Haryana

…..Respondent

CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI.

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-.-

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Present:Mr.Rajesh Malik, , Advocate for the petitioner in CRM M-1093 of 2013.

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Mr.J.S. Bedi, Advocate for the petitioner in CRM M-25360 of 2013.

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Mr.R.D. Sharma, DAG, Haryana.

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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M.M.S. BEDI, J.

This order will dispose of two petitions bearing CRM M-1093 of 2013-Pratap Singh Vs. State of Haryana, hereinafter referred to as complainant or Pratap Singh C and CRM M-25360 of 2013-Mohan Lal Saini Vs. State of Haryana.

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Petitioner Pratap Singh C seeks setting aside of order dated December 19, 2012 (P-16) passed by the trial Court i.e. Additional Sessions Judge, Panipat, dismissing the application filed by him under Section 239 Cr.P.C. in FIR No. 656 of 2011 under Sections 384, 420, 467, 195-A, 376 IPC read with Sections 7, 13, 49 of the Prevention of Corruption Act and Section 3, 4 and 5 of the Immoral Traffic (Prevention) Act registered at Police Station Chandni Bhag, Panipat, claiming his discharge.

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Petitioner Mohan Lal Saini has sought the quashing of above said FIR qua him and the supplementary challan dated September 19, 2012 (annexure P-15) and all the criminal proceedings arising therefrom.

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Both the petitioners claim that they are entitled to the discharge and the criminal proceedings are liable to be quashed. During the pendency of the present petitions charges have been framed against the petitioners vide order dated September 24, 2013.

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Brief facts of the present case are that petitioner Pratap Singh C has been tried as an accused in the supplementary challan but originally the FIR was registered at his instance. Petitioner Pratap Singh C had lodged an

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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FIR alleging that he is running a factory under name and style of Partap Handloom employing number of male and female workers. On March 19, 2011 at about 10.30 a.m., petitioner Pratap Singh C received a missed phone call from mobile number 9812782155. When he replied back a girl’s voice revealed herself as Meenu and told him that two girls had filed an application against him in Sector 29 Police Station of having committed rape on them in the factory. The phone was disconnected. Said Meenu again gave a phone call to the petitioner asking him to see her for compromising the matter with the girls as she has got intimacy with the Incharge of the police post who would act as per her command. The petitioner explained that he had not committed any rape as such he was not to compromise the matter. Meenu had asked him if he had not received any phone call from the Incharge Police Post, the petitioner replied in negative. About 15/20 minutes after, the incharge Police Post gave a phone call to Pratap Singh C from mobile No. 9729999935 directing him to see him as he had received a compliant against him. The petitioner reached Police Post at 4.00 p.m. and met the incharge and asked him to show the complaint but no such complaint was shown to him. The Incharge told him that he would read the complaint and there is no need to show the same. A reference was made to the phone call from Sunita Sharma. The petitioner was directed to meet Sunita Sharma and to do as directed by her. It was assured that the matter would be settled and the complainant-petitioner should not worry. When the petitioner told that he had received a phone call from one Meenu

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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and he did not know any Sunita Sharma, then Incharge Police Post told him that Meenu is also Sunita Sharma and she was talking to him by changing her name. On March 20, 2011, the petitioner talked to Sunita Sharma @ Meenu and she had asked him to meet her in order to get the matter compromised. Petitioner was threatened that in case he tried to be smart he was to meet the same fate which Parshotam Sharma had met. His as well as the life of his family members would be jeopardized and they would be involved in false cases as she had intimacy with police officials. The petitioner was asked to meet Sunita Sharma @ Meenu at Palika Bazaar, Panipat. The petitioner Pratap Singh C told her that he was at Delhi and would send his man i.e. petitioner Mohan Lal Saini to meet her. Petitioner Pratap Singh C sent Mohan Lal Saini-petitioner to meet Sunita Sharma @ Meenu at Palika Bazaar but he did not find Sunita Sharma there. As Mohan Lal Saini could not find Sunita Sharma, he called petitioner Pratap Singh C. Thereafter Sunita Sharma gave a phone call to petitioner- complainant Pratap Singh to come to Civil Hospital as such Mohan Lal Saini was sent to Civil Hospital, Panipat where Sunita Sharma, Saroj Taluja and Saina Mirza met him and told him to come to the house of Saroj Taluja at Model Town in the evening at 8.00 p.m. where his fate was to be decided. On March 20, 2011, Mohan Lal Saini reached the house of Saroj Taluja at 8.00 p.m. where Sunita Sharma threatened Mohan Lal and demanded a sum of Rs.5 lacs. At that time, a compromise was effected at the house of Saroj Taluja for a sum of Rs.1.50 lacs. Thereafter Mohan Lal Saini told petitioner Pratap Singh C

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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that a compromise had been effected as such he should arrange a sum of Rs.1.50 lacs by March 21, 2011. Mohan Lal Saini told the complainant to settle the matter because he himself was terrified as accused had threatened him to arrange money soon otherwise he would be implicated in false case. Sum of Rs.1.50 lacs were arranged and handed over in presence of petitioner Pratap Singh C, Mohan Lal Saini, Sunita Sharma and Incharge Police Post, namely, Partap Sharma, hereinafter referred to as Partap Sharma, accused. After receiving the money, Sunita Sharma told that compromise would be given later on as the girls were to be called to get their signatures. The petitioner- complainant Pratap Singh C was asked to not to disclose this fact to anybody otherwise he would be implicated in the case under Section 376 IPC. On March 22, 2011, when the petitioner complainant Pratap Singh C reached the Police Post in order to take photocopy of the compromise, the incharge told him that Rs.1.50 lacs had been taken by two girls and he and Sunita Sharma have not got anything. Petitioner complainant Pratap Singh C was told that copy of the compromise would be given but he will have to shell further sum of Rs.1.50 lacs otherwise he would be involved in a case under Section 376 IPC. The Incharge Police Post and Sunita Sharma had once again effected a compromise in a further sum of Rs.1 lac in the evening and consequently on March 23, 2011, Rs.1 lac was withdrawn from State Bank of Patiala and the money was handed over to Incharge Police Post and Sunita Sharma but no copy of the compromise was given. On the basis of the above said

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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information, the FIR was registered on the basis of investigation conducted by Sh.Varinder Singh, DSP, under Section 384 IPC read with Sections 7 and 13 of the Prevention of Corruption Act against SI Partap Sharma, accused, the then Incharge Police Post of Sector 29, Panipat, Shalu, Sunita Sharma, Sania Mirza and Saroj Taluja for extracting ransom under the threat of implication in false case. During the course of further investigation, statements of Nazis and Suman @ Shalu were recorded under Section 161 Cr.P.C. and 164 Cr.P.C. In the said statements it was mentioned that Kamla, Poonam and Jyoti had sent Nazis and Suman at the factory of Pratap Singh C at Sector 29, where Pratap Singh C and Mohan Lal Saini and another unknown person had committed bad act upon them. The call details of various mobile numbers were collected during investigation. During further investigation, it transpired that Poonam and Kamla used to trap helpless girls like Nazis and Sunita and used them. It was further specified in the police report that accused Poonam have been running said immoral business conniving with Sunita Sharma, Kamla and Jyoti. They used to trap poor and helpless girls and misused them for prostitution purpose.

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Petitioner Pratap Singh C filed an application for his discharge on the following grounds:-

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i) The proceedings against him as an accused are not permissible as he himself is a complainant. He cannot be charged and tried alongwith accused Pratap Sharma A and others. The proceedings are

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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contrary to Section 223 of Cr.P.C. as the allegations against petitioner Pratap Singh C cannot be said to be part of the same transaction of which the main accused Partap Sharma, accused and others are being tried. As the case of the prosecution, day, time and mode of extortion and the counter-case of alleged rape against the petitioners are pertaining to distinct incidents and offences and even facts are different, as such the two offences cannot be clubbed together forming part of the same transaction. It was urged that the offence under Sections 384, 420 IPC and its variants and offences under Immoral Traffic (Prevention) Act are distinct from offences under Section 376 (2) (g) IPC.

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ii)

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The police had authority to register two separate FIRs in case the prosecution wanted to try the petitioners in a case of extortions against the main accused. The petitioners had been discharged by the police at initial stage on the same set of allegations but supplementary challan has been filed disclosing the name of the complainant on the basis of an inquiry/ investigation by DSP

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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Pardeep Singh who was entrusted with investigation. On the basis of unfair investigation of such investigating officer, petitioner Pratap

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Singh C has been implicated on account of collusion of investigating officer with main accused SI Partap Sharma accused.

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The application filed by Pratap Singh C for discharge has been dismissed vide order dated December 19, 2012 resulting in filing of the present petition bearing CRM M-1093 of 2013.

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Counsel for petitioner Pratap Singh C has submitted that the allegations against the petitioner were initially looked into and a closure report dated November 9, 2011 had been submitted. After closure report, supplementary challan was filed against Pratap Singh C after recording the statement of Suman on September 7, 2012.

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So far as petitioner Mohan Lal Saini is concerned, he has approached this Court invoking the inherent jurisdiction under Section 482 Cr.P.C. for quashing of proceedings, inter-alia on the ground that the prosecution against him suffer from the vice of malafide of main accused SI Partap Sharma, accused. Counsel for the petitioner has argued that at the instance of complainant, Pratap Singh C, SI Pratap Sharma, accused, Shalu, Sunita Sharma, Sania Mirza and Saroj Taluja were made accused for offence under Section 384 IPC, Sections 7, 9 and 13 of the Prevention of Corruption Act and report under Section 173 (2) Cr.P.C. was submitted on November

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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13, 2011 and supplementary challan was subsequently presented adding offence under Sections 376 (2) (g), 195A, 216 IPC read with Sections 7/13 of the Prevention of Corruption Act and Sections 4 and 5 of Immoral Traffic (Prevention) Act was submitted against Pratap Singh C on April 27, 2012. Copy of the original challan has been placed on record as annexure P-13 and supplementary challan has been appended as annexure P-14. The second supplementary challan was filed on September 19, 2012 against petitioner Mohan Lal Saini and Sunita Sharma @ Meenu. Copy of the supplementary challan has been placed on record as annexure P-15.

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Mr. J.S. Bedi, Advocate appearing for petitioner Mohan Lal Saini has vehemently contended that an application annexure P-1 was obtained from one Shalu resident of Sanjay Colony, addressed to the Police Post, Sector 29, Panipat, alleging that she was called in the afternoon on March 18, 2011 in the Pratap Factory for getting work by the owner of the factory Pratap Singh C. He committed bad act with her on the wooden bed placed in the adjoining room in his office. Mr. Bedi has argued that the thumb impression of Suman @ Shalu existing on the compliant dated March 19, 2011 has not been matched with thumb impression of Suman @ Shalu daughter of Ashok. The complaint dated March 19, 2011 made by Shalu daughter of Pardeep is fake and the complaint is a procured document. Mr. Bedi has vehemently urged that even if the statements of Shalu @ Nazis and Suman @ Shalu dated September 2, 2011 and September 7, 2011 are believed to be correct, no offence is made out as the allegations of time,

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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date and place of occurrence are vague. Referring to the statements of Shalu @ Nazis under Sections 161 and 164 Cr.P.C., it was argued that they do not name the petitioner to have committed any offence. It was highlighted by the counsel for the petitioner that these girls have performed a number of scandals of similar nature. A great emphasis was laid on the fact that Sunita Sharma @ Meenu has been running the business of blackmailing well to do of individuals and that she has got lodged similar case in Haridwar bearing FIR No. 19/2011 dated June 12, 2011 under Sections 471, 506, 120-B IPC against Ram Saroop Brahamchari. As in the present case affidavits of two girls Richa and Kamlesh were filed stating that Sunita Sharma @ Meenu has blackmailed them and asked them to file a false complaint against the accused. Reliance has been made on the affidavits of two ladies dated July 1, 2011 annexures P-18 and P-19.

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With the assistance of learned counsel for the petitioners, I have gone through the statement of Suman @ Shalu daughter of Ashok who has stated in her statement under Section 161 Cr.P.C. that Poonam and Kamla had sent her alongwith Nazis @ Shalu to Sector 29, Panipat by saying that Pratap Singh C will provide them work. Both Suman and Nazis had gone to the factory of Pratap Singh C where petitioner Mohan Lal Saini and one another person was present. All of them were sitting in the office with black glass. Both the petitioners alongwith third person turn-wise committed bad act with Suman as well as with Nazis. The accused Pratap Singh C had given Rs.900 which was equally shared by Suman and Nazis.

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Gupta Sanjay 2013.11.18 13:04 I attest to the accuracy and integrity of this document High Court Chandigarh

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CRM M-1093 of 2013

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Suman had told Kamla that petitioners had committed bad act with them. SI Partap Sharma accused, Incharge of Police Post had written the complaint against the factory owner.

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A perusal of statement of Suman under Section 161 Cr.P.C. indicates that prima facie she attributes bad act against the petitioners and also levels allegations against Kamla, Poonam and Sunita Sharma alleging that they induced the poor girls into prostitution and get hefty amount themselves by paying only 2000 to 3000 to the girls. They used to give bate of money to the poor girls and misused them.

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It was urged that even if the allegations are presumed to be correct, no offence will be made out against petitioner Mohan Lal Saini as admittedly the above said girls have received money in return of the alleged bad act. It may be at the most a case of Immoral Traffic (Prevention) Act but no offence under Section 376 (2) (g) is made out against the petitioners.

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It was also urged that no offence is made out against Mohan Lal Saini even if all the allegations in the supplementary challan is admitted. It was argued that continuation of criminal proceedings against the petitioners is an abuse of the process of the Court.

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I have considered the contention of learned counsel for the petitioners as well as learned counsel for the State and carefully gone through the entire record and the reports under Sections 173 (2) and 173 (8) Cr.P.C. Learned counsel for the petitioners have submitted that in case the petitioners for any reason had to be tried for any act or omission, a separate

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FIR should have been registered and that the application filed by Pratap Singh C for discharge ought to have been allowed by the trial Court.

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So far as petitioner Mohan Lal Saini is concerned, he claims that no offence is made out against him even if all the allegations are presumed to be correct. Both the petitioners claimed that their trial alongwith the main accused is violative of Section 223 Cr.P.C. as the petitioners have not committed same offence as committed by the main accused SI Partap Sharma accused, Meenu, Sunita Sharma, Suman etc. and that the offences alleged against the petitioners are not in the course of same transaction of extortion by the SI Partap Sharma, accused, Sunita Sharma and other girls in connivance with each other.

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In nutshell the story of the prosecution as per Pratap Singh C is that the main accused SI Partap Sharma accused, in connivance with lady Sunita Sharma, Sania Mirza, Kamla, Jyoti and Poonam hatched a conspiracy to extort money from petitioner Pratap Singh C by sending girls. Thereafter an attempt was made to extort money from the complainant Pratap Singh C by threatening to involve him in a case of committing sex against the consent of the girls. The complainant and his witness Mohan Lal Saini have been involved in the case of rape on the allegations that they had committed rape against the wishes of Nazis @ Shalu and Suman @ Shalu. Charges have been framed on the basis of information of Pratap Singh C after investigation against Jyoti, Kamla, Poonam, Sania Mirza and SI Partap Sharma A. On the basis of investigation of DSP Pardeep Singh, HPS, at the

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same time, a challan has been presented against complainant Partap Singh C and Mohan Lal Saini on the allegations that they have committed sexual offence against the wishes of Nazis and Suman. Nazis and Suman have allegedly made statements during the course of investigation having been sexually exploited by the accused Sunita and others and having been subject to sexual inter-course by petitioners. However, some admissions have been made by the victims that they had received money for the act committed by the petitioners against their wishes. Section 223 Cr.P.C. permits different persons to be charged and tried together if the persons are accused of same offence committed in the course of same transaction. In the petition under Section 482 Cr.P.C. filed before this Court, this Court has been required to form an opinion whether there is a connection between the series of acts which could be regarded as forming part of same transaction. A wrongful act has been attributed to the petitioners. The said act was allegedly masterminded and designed by the main accused SI Partap Sharma, accused, Sunita by using the innocent girls by sending them for exploitation to the petitioners.

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In State of Andhra Pradesh Vs. Cheemalapati Ganaswara Rao and another , AIR 1963 SC 1850, it was observed that what is meant by “same transaction” is not defined anywhere in the Code. Indeed it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to

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undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of the words “so connected together as to from” in clause (a), (c) (sic) and (d) of Section 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stands out independently, they would not form part of the same transaction but would constitute a different transaction or transactions.”

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It is not out of place to observe here that the trial Court has framed charges against the petitioners as well as the other accused on September 24, 2013. Though 12 charges have been framed to the effect that SI Partap Sharma accused, Saina Mirza, Poonam, Jyoti, Kamla and

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Sunita Sharma had hatched a criminal conspiracy to do an illegal act by which they used Suman @ Shalu and Nazis by procuring them and sending them in the factory of Partap Singh C for prostitution as such they committed offence punishable under Section 5 of Immoral Traffic (Prevention) Act, 1956, one of the charges against the petitioners is that they had alongwith one another person committed gang-rape upon Suman and Nazis. The petitioners have raised a defence that no offence under Section 376 IPC is made out as Suman @ Shalu and Nazis have been introduced during the course of investigation to raise allegations of rape to discourage the petitioners to pursue the allegations of extortion against SI Partap Sharma, accused and other girls. It is also their defence that for commission of sexual offence for an act committed voluntarily by Suman and Nazis on receipt of money, the petitioners cannot be said to have committed rape.

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In peculiar circumstances of this case, it is, at present a difficult task to form an opinion whether the series of acts which constitute a transaction are connected to each other or they stand independently not forming part of same transaction. It will only be possible to determine the same on appreciation of evidence which is produced in the Court.

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I have also considered the contention of learned counsel for the petitioners that there should have been a separate FIR against the petitioners different from the earlier one registered at the instance of petitioner Partap Singh C. In this context again, it will be required to determine whether the act attributed to the petitioners is amongst one of the series of the acts

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forming part of the same transaction in which the main accused are being tried. The question whether there can be one FIR or more than one FIRs in relation to the same incidents or different incidents came up for consideration in Anju Chaudhary Vs. State of UP and another , 2013 (1) RCR (Crl.) 686, wherein it was observed as follows:-

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“ 40. It is true that law recognizes common trial or a

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common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 of the Code. There cannot be any straight jacket formula, but this question has to be answered on the facts of each case. This Court in the case of Mohan Baitha v. State of Bihar [ 2001 (2) RCR (Criminal) 381 : (2001) 4 SCC 350], held that the expression ‘same transaction’ from its very nature is incapable of exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. 41. It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute

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the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.

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Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different

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offences “committed in the course of the same transaction”.

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Since the provisions of Section 482 Cr.P.C. have been invoked for quashing of criminal proceedings including the challan presented against the petitioners on the basis of legal irregularity and on the ground that no offence is made out against the petitioners besides the allegations of malafide, it is pertinent to refer to judgment of State of Madhya Pradesh Vs. Surendra Kori , (2012) 10 SCC 155, wherein it has been observed that inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. High Court 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 that it is for the trial Judge to hold on appreciation of evidence that the accusation against an accused is sustainable or not. The relevant portion of the judgment is reproduced as follows:-

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“13. The High Court in exercise of its powers under Section 482 CrPC does not function as a Court of Appeal or Revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should

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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 wide magnitude and cannot be seen in their true perspective without sufficient material. In M.M.T.C. and Another v. Medchl Chemicals & Pharma (P) Ltd. and Another (2002) 1 SCC 234, this Court held as follows:

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“The law is well settled that the power of

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quashing criminal proceedings should be exercised very stringently and with

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circumspection. It is settled law that at this stage, the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice…..”

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In State of Orissa and Another v. Saroj Kumar

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Sahoo (2005) 13 SCC 540, this Court held as follows:

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“Exercise of power under Section 482 of the. Cr.P.C. in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in

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their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliauid alicui concedit, concedered videtur et id sine guo resipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section 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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This Court, again, in Eicher Tractors Ltd. v. Harihar Singh (2006) 12 SCC 763, held as follows:

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“When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge.”

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CRM M-1093 of 2013

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[22]

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The Apex Court in Padal Venkata Rama Reddy @ Ramu Vs. Kovvuri Satyanarayana Reddy and others , (2011) 12 SCC 437, had set aside the orders of High Court where criminal proceedings have been quashed on assumption that ingredients of offence alleged by the prosecution against the accused had not been made out. Observing that inherent powers under Section 482 Cr.P.C. could be exercised only when other remedy was not available to the litigant and not in a situation when a specific remedy was provided in a statute. Inherent powers could be exercised to abuse the process of Court where Court finds that ends of justice would be met by quashing proceedings. A word of caution was issued in the said judgment to the effect that exercising jurisdiction under Section 482 Cr.P.C., High Court would not ordinarily embark upon an enquiry whether evidence in question was reliable or not or whether on reasonable appreciation of it accusation would not be sustainable. It was observed in the said judgment that High Court had exceeded its power in quashing criminal proceedings on erroneous assumption that ingredients of offence alleged by the prosecution had not been made out.

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In Rajiv Thapar and others Vs. Madan Lal Kapoor , (2013) 3 SCC 330, it was observed that though the Apex Court had quashed the proceedings but it was observed that the High Court in exercise of its jurisdiction under Section 482 Cr.P.C. must make just and rightful choice as neither truthfulness of allegations levelled by complainant can be evaluated nor can weight of defence evidence be determined. Where allegations

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CRM M-1093 of 2013

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[23]

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bring out all ingredients of charge levelled and material placed before Court prima facie shows truthfulness of allegations, trial must proceed even when accused is successful in raising some suspicion or doubt in raising some allegations.

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In the exercise of jurisdiction under Section 482 Cr.P.C., this Court has been called upon to appreciate the fact that there are legal infirmities while launching prosecution against the petitioners. On the basis of the statements made by Shalu @ Nazis under Section 164 Cr.P.C. on September 2, 2011 and the statement made by Suman @ Shalu under Section 161 Cr.P.C., the Court has been called upon to appreciate whether offence under Section 376 IPC is made out or it is only an offence under Immoral Traffic (Prevention) Act, 1956 against the petitioners; whether acts of the petitioners can be considered to be part of the same transaction of the conspiracy and offences of the main accused; whether acts alleged against the petitioners form part of the series of the acts or are connected in any manner with the offences committed by the main accused or whether the petitioners have committed any offence in the doubtful circumstances; whether the prosecution against the petitioners is malafide in order to pressurize them to refrain themselves from pursuing the case against main accused Partap Sharma, SI and Sunita etc., are to be considered on appreciation of evidence. If there is any material irregularity in the trial and investigation and whether the trial would be vitiated is also required to be seen by the trial Court. In these circumstances, it will not be appropriate for

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CRM M-1093 of 2013

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[24]

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this Court to exercise jurisdiction under Section 482 Cr.P.C. to quash the proceedings against the petitioners on appreciation of the material gathered by the prosecution during the course of investigation/ further investigation. No doubt, prima facie the involvement of the petitioners in the case suffers from number of inherent weaknesses and apparent irregularities. The probability of prosecution having launched against the petitioners, being malafide, can also not be ruled out but I am not inclined to exercise inherent jurisdiction at this stage to quash the proceedings against the petitioners.

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I have also considered the circumstances of the present case in context to the provisions of Code of Criminal Procedure. Section 221 of Cr.P.C. deals with situation when it is doubtful as and when offence has been committed. It enables a Court to frame charges where it is doubtful as to what offence has been committed. Section 221 provides that if a single act or series of acts is of such a nature that it is doubtful of several offences, the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once. It enables a Court to charge an accused in the alternative with having committed some one of the said offences. Section 221 (2) provides that if accused is charged with one offence and it appears in evidence that he committed different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. It is always open to a Trial Court to convict a person for lesser offence than the offence for which he

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CRM M-1093 of 2013

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[25]

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was charged. Section 216 Cr.P.C. enables a Court to alter or add any charge at any time before judgment is pronounced. In case the evidence produced by the prosecution falls short of, the parameters required for conviction under Section 376 IPC, it will always be open to the petitioners to move an application for alteration of charges or seek for lesser offence or acquittal as the circumstances so warrant at an opportune time.

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In view of the abovesaid circumstances, I do not find any ground to quash criminal proceedings against the petitioners, however, in the exercise of inherent jurisdiction in the interest of justice and to prevent abuse of process of law while dismissing the petitions, it is ordered that in the exercise of powers under Section 482 Cr.P.C. it will not be appropriate at this stage to enter into the niceties of the trial to appreciate the prima facie evidence in the report under Section 173 (2) Cr.P.C. or in the supplementary report under Section 173 (8) Cr.P.C. but the doors of the Court will not be shut for the petitioners to file an application before the trial Court for alteration of charge under Section 216 Cr.P.C. or to seek the benefit of Section 221 (2) Cr.P.C. in case the evidence of Sunita @ Shalu and Nazis and the investigation officer warrants the alteration of charge under Section 216 Cr.P.C. or benefit of Section 221 (2) Cr.P.C. to the petitioners for an action commensurate with the evidence produced. It will also be open to the trial Court to grant the benefit of doubt to the petitioners and compensation in accordance with the provisions of law. It is also observed that in case the petitioners move an application for exemption from personal

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CRM M-1093 of 2013

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[26]

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appearance on the dates when no evidence is to be produced against them, the trial Court shall allow the said application subject to any conditions imposed upon the petitioners when no prosecution witness is to be examined in context to the specific charges framed against the petitioners. The trial Court shall make earnest endeavour that separate dates are fixed for the witnesses to be examined against the petitioners different from the dates for examination of the witnesses against the other main accused i.e. SI Partap Sharma accused and others.

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In view of the above both the petitions are dismissed. Nothing mentioned in this order will prejudice the rights of the parties during trial.

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November 12, 2013 (M.M.S.BEDI) sanjay JUDGE

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Pratap Singh v. State of Haryana

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Pratap Singh v. State of Haryana

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