Ramesh Sathia v. State of Rajasthan — 1996 DIGILAW 756 (RAJ)

Honble KHAN, J. – This petition under Section 482 Cr.P.C. is directed against the order dated 16.1.1993 whereby the learned Additional Munsif and Judicial Magistrate No. 12, Jaipur City, Jaipur took cognizance of the offences under Section 147, 323 and 451 IPC against the petitioner on the complaint filed by the non- petitioner No.2, Raman Sachdev. (2). The relevant facts of the case are these :– The petitioner is a Doctor by profession and is a tenant in the Eastern side of Plot No. 40, Hospital Road, C-Scheme Jaipur which belongs to non-petitioner No.2, Raman Sachdev. The case of the petitioner is that the non-petitioner was bent upon in getting the premises vacated from the petitioner by hook or crook, therefore, during the mid-night of December, 29 and 30, 1992 at about 12.30 A.M., when the petitioner was sleeping in his house, the non-petitioner Sach Dev along with his two friends rang the door bell of the portion of the house wherein the petitioner was residing. The petitioner wake up, but on seeing the non- petitioners and his friends standing outside of the door, he refused to open the door as they were dru- nk. It is alleged that the non-petitioner and his friends broke open the door and entered into the house of the petitioner and started manhandling him. On the alarm raised by the petitioner, his brother came to his rescue, but the non-petitioner and his friends became violent, whereupon the petitioner had to run towards hospital and he lodged a F.I.R. at Police Station Ashok Nagar, Jaipur at 1.30 A.M. on 30.12.92 vide (Annexure-1 of the present petition). It is stated that the police authorities immediately took action and apprehended the non-petitioner No.2, Ram Sachdev and his friend Surendra Singh during the very night and got them examined at the S.M.S. Hospital for proof of consumption of Alchohal. The test of the non-petitioner No.2 and his friend Surendra Singh gave positive result regarding intoxication vide Annexure- 2 and 3. Since the police had already registered a case against the non- petitioner for offences under Section 323 and 457 read with Section 34 of IPC, the non-petitioner No.2 and his friend Surendra Singh were charge-sheeted in the Court. (3). The test of the non-petitioner No.2 and his friend Surendra Singh gave positive result regarding intoxication vide Annexure- 2 and 3. Since the police had already registered a case against the non- petitioner for offences under Section 323 and 457 read with Section 34 of IPC, the non-petitioner No.2 and his friend Surendra Singh were charge-sheeted in the Court. (3). It is in the above background that it has been pleaded that as a counter- blast to the F.I.R. which was lodged by the petitioner against the non-petitioner No.2 and his friends, the non- petitioner No.2 lodged a complaint on 5.1.1993 against the petitioner in the court of Additional Munsif and Judicial Magistrate No.12, Jaipur City, Jaipur (Annexure-4) herein, whereupon the learned Magistrate, after conducting necessary enquiry under Section 200/202 Cr.P.C., took cognizance of the offen- ce under Sections 147, 323 and 451 IPC against the petitioner and some others. The case of the petitioner is that the complaint filed by the non-petitioner No.2 Ram Sachdev was totally false and frivolous and had been filed only as a counter-blast to the case got registered by the petitioner against Surendra Singh and Ram Sachdev. By this petition, the petitioner submits that the order of the learned Magi- strate Dated 16.1.1993 taking cognizance of the offence under Sections 147, 323 and 451 IPC against the petitioner and his man on the basis of the complaint filed by non-petitioner No.2 Ram Sachdev was abuse of the process of Court and was, therefore, required to be set-aside and the proceedings should be quashed. (4). The learned counsel for the petitioner has vehemently urged that the aver- ments made in the complaint filed by the petitioner and the statement recorded under Section 200/202 Cr.P.C. are required to be read in the context of the facts and circumstances attending on the commission of the alleged offences. It was submitted that a bare glance at the averments made in the complaint and the statements recorded under Section 200/202 Cr.P.C. would amply show that the occurrence had taken place during the hours of the night and the petitioner had lodged the F.I.R. with the police station concerned, within a minutes after taking place of the occurrence whereupon the police had apprehended non- petitioner No. 2. It was also pointed out that on examination of non-petitioner No.2 Ram Sachdev and his friend Surendra Singh, they were found intoxicated. It was also pointed out that on examination of non-petitioner No.2 Ram Sachdev and his friend Surendra Singh, they were found intoxicated. It was submitted that the complaint by the non-petitioner was filed as late as after 5 days of the occurrence and false version therein was given to the effect that out of fear, non-petitioner No.2 could not file the complaint earlier. It was thus, submitted that in the facts and cir- cumstances of the case, there should have no difficulty in arriving at the conclusion that the complaint filed by non- petitioner No.2 against the petitioner was not only false and vaxatious but also malicious was filed as a counter blast to the step taken by the petitioner against the non-petitioner only to harass and humuliate him. (5). The learned counsel for the non-petitioner No.2, opposing the petition ve- hemently urged that the genuinene and validity of the order passed by the Magistrate should be judged on the basis of the averments made in the complaint and the statements made by the witnesses on being examined under Section 202 Cr.P.C. It was further pointed out that while passing the impugned order, the learned Magistrate had no opportunity for going through medical examination re- ports of the non-petitioner and Surendra Singh (Annexure 2 & 3) as also the F.I.R. filed by the petitioner and, therefore, those documents should not be considered while examining the legality and validity of the order made by the learned Magistrate. It was further submitted that at the stage of initiation of the criminal proceedings this court should be slow to exercise its powers under Section 482 Cr.P.C. and unless the version made in the FIR/complaint is found to be disclosing no offence at all, the proceedings should not be quashed. In support of such contention reliance was placed by the learned counsel on the Supreme Court decision in the case of Smt. Chand Dhawan vs. Jawahar Lal & Ors. (1). (6). It is the settled law that powers of this Court under Section 482 Cr. P. C. should be exercised sparingly in exceptional cases. It is also well settled that the criminal proceedings, commenced either on the basis of the FIR lodged by aggrieved party or on the basis of the complaint filed in a court of law, should not ordinarily be quashed in their inception. P. C. should be exercised sparingly in exceptional cases. It is also well settled that the criminal proceedings, commenced either on the basis of the FIR lodged by aggrieved party or on the basis of the complaint filed in a court of law, should not ordinarily be quashed in their inception. It is also well settled that if the version given in the F.I.R. and/or the complaint discloses the commission of the offence, further proceedings in the case should not ordinarily be quashed. Here it may be pointed out that there is a clear distinction between the powers of the Court under Section 397 Cr.P.C. and those under Section 482 Cr.P.C. Whereas in exercise of the powers under Section 397 Cr.P.C., the High Court or Sessions Court is concerned with the examination of the legality and validity of the order made by the inferior court as also the regularity of the proceedings taken by them, the object of the powers under Section 482 Cr.P.C., is altogether different. In exercise of the powers under Section 482 Cr.P.C. the court is concerned with the examination of the alleged abuse of the process of the court and the failure of the ends of justice. If in a given case it is noticed that an order, which may be legal, leads to injustice or otherwise amounts to abuse of the process of the Court even that order can also be quashed in exercise of the powers under Section 482 Cr.P.C. The validity and legality of the order passed by the inferior court is not to be examined in the exercise of the powers under Section 482 Cr.P.C. The case has to be approached from the angle of examining the abuse of the process of the court and failure of the ends of justice. In view of such distinction between the two provisions of the Cr.P.C. 1973, the arguments of the learned counsel for the non-petitioner that the material which has been placed before this court was not there before the learned Magistrate and therefore, the order passed by him should not be disturbed carries no weight for the obvious reason that in exercise of its powers under Section 482 Cr.P.C., this court has to find out as to whether the proceedings being taken by the inferior court amount to abuse of the process of the Court or pertuate injustice to any party. (7). (7). In the instant case, the argument advanced by the learned counsel for the petitioner and which is to the effect that the commission of the offences alleged to have been committed by the petitioner qua the non-petitioner No.2 must be appreciated in the background and in the light of the circumstances attending upon the commission of such offences is appealing. When the case is approached from that angle, it becomes crystal clear that the incident had taken place in the dead hours of the night. The version advanced by the petitioner was that the non-petitioner and his friend has broken open the door of his residential portion and threatened his life whereupon he had rushed for police help and had obtained the same. The version given by the non- petitioner of the incident, however, is that when he and his friends were sitting in their house, the petitioner and his friends had reached there and had tried to assault them. The subsequent conduct of the parties is required to be taken into account in appreciating the versions advanced by them. Whereas the petitioner had immediately rushed to the police station and the police had apprehended the non-petitioner during the very night and got him and his friend examined and on such examination they were found drunk, no such natural circumstances supporting the version of the non-petitioner are found existing. Then again whereas the petitioner had acted and behaved in a normal way in approaching the police in dead hours of the night, the non- petitioner had waited for 5 days to file the complaint. The non- petitioner had no doubt stated that out of fear of the police he could not lodge the F.I.R. and/or file a complaint but such state- ment was hardly convincing. In the background of the relationship between the parties, the time and place of the occurrence, the normal conduct and behaviour of both the parties, the irresistable conclusion is that the non-petitioner had filed the complaint as a counter blast to the F.I.R. lodged by the petitioner against him and therefore, the complaint filed by him was totally vexatious, frivolous and mali- cious and amounts to abuse of the process of the court of the learned Magistrate. (8). Day in and day out, it is experienced that criminal courts are being used as a forum of harassment to innocent persons. (8). Day in and day out, it is experienced that criminal courts are being used as a forum of harassment to innocent persons. This court, more often that not, comes across such cases which are on the face of them totally false, consuming precious time of the court and falling heavily on the resources of the parties. Under such circumstances, it is not only desirable but expedient in the interest of justice that the increasing evil of lodging false cases and making false and vexatious accusations and thus abusing the process of the court must be nipped in the bud. The instant case is one of such cases. Such complaints/cases are required to be dealt with a firm hand and dismissed with compensatory costs under Section 250 Cr.P.C. (9). At this stage a reference to the cases cited by the parties may be made. (10). In the case of Smt. Chand Dhawan vs. Jawahar Lal and Ors. (supra), Magistrate had taken cognizance of the offence of bygamy. While exercising its powers under Section 482 Cr.P.C., the High Court had relied upon the material not amounting to legal proof. It was under such circumstances, the Apex Court had held that criminal proceedings can be quashed only when the allegations in the complaint do not prima facie constitute the offence against any person or there is abuse of the process of the Court. When prima facie an offence is found to have been committed, quashing of the proceedings under Section 482 Cr.P.C. would not be justified. There is no dispute to this proposition. In the case before me there are no such circumstances. This court has arrived at the positive conclusion that the initiation of the proceedings on the basis of complaint filed by the non-petitioner No.2 was a clear instance of the abuse of the process of the court. Moreover, as explained in earlier part of this order only such evidence which amounts to legal proof in the facts and circumstances of this case has been taken into consideration. The ratio decidendi of this case does not help the case of the non-petitioner. (11). The ratio in the decision of Bhaskar Chattoraj vs. State of West Bengal (2) and State of Haryana & Ors. vs. Bhajan Lal & Ors. (3), go to support the views expressed and conclusion arrived at by me above. The ratio decidendi of this case does not help the case of the non-petitioner. (11). The ratio in the decision of Bhaskar Chattoraj vs. State of West Bengal (2) and State of Haryana & Ors. vs. Bhajan Lal & Ors. (3), go to support the views expressed and conclusion arrived at by me above. In the later case, the Appex Court has laid down certain principles by following which, the court may arrive at the conclusion as to whether a particular case was fit for exercising the powers under Section 482 Cr.P.C. One of such principles is that if the prosecution is found to be malicious, which is the position in the instant case, the proceedings would amount to abuse of the process of the Court. The principles laid down in the above cases were reiterated in the cases of Mrs. Rupan Deol Bajaj & Anr. vs. Kanwar Pal Singh Gill & Anr. (4). (12). It is thus well established that where a complaint is found to have been filed out of malice and is on the face of it false and vexatious, cognizance taken on the basis of such complaint amounts to the abuse of the process of the court and such abuse is required to be prevented. (13). In the instant case, this court is not in the least doubt that the complaint filed by the non-petitioner No.2 was totally false and concocted and a malicious attempt on the part of the non- petitioner to falsely prosecute and harass the petitioner in answer to the case got registered by him against the non- petitioner. (14). In the result, the petition is allowed. The order of the learned Magistrate dated 16.1.1993 taking cognizance of offence under Sections 147, 323 and 451 IPC on the basis of complaint No. 115/93 filed by non-petitioner No.2 Raman Sachdev against the petitioner & Ors. and pending in the Court of Addl. Munsif and Judicial Magistrate No.12 is hereby set-aside and the proceedings quashed.