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2002 DIGILAW 72 (UTT)

Devendra Singh @ Mama v. State of Uttranchal

2002-09-02

IRSHAD HUSSAIN

body2002
JUDGMENT IRSHAD HUSSAIN, J.- This criminal petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for the short "Cr.P.C.") to quash the proceedings before the Chief Judicial Magistrate, Nainital, in criminal case no. 145 of 2000 State Vs. Devendra Singh alias Mama under Section 307 and 504 of Indian Penal Code, 1860 (for the short IPC). 2. The brief facts are that on 27.06.1999 the complainant respondent no.1 Deepak Sisodea lodged a report at police station, Haldwani with the allegation that he was fired at by the miscreant (petitioner) who was referred to as a relation of a wine contractor at about 8.00 a.m. on 27.6.1999 near Saladi on way to Bhimtal. The complainant got hurt by firearm in the leg and had to be rushed to the hospital from where the complainant went to lodge the report. A case was accordingly registered and investigation was taken up but the police submitted final report. The complainant filed protest petition before the Chief Judicial Magistrate, Nainital who adopted the procedure as prescribed under Chapter XV of Cr. Pc. as applicable to the complaint case and recorded the statement of the complainant u/s 200 Cr.PC. and evidence of witnesses Dr. Vimal Pant constable Rajendra Prasad, The Prashant Nigam and eye-witness Pappu alias Gajendra Singh u/s 202 Cr.PC. The learned C.J.M. was, on the basis of material on record, of the opinion that there were sufficient grounds for proceeding against the accused petitioner and thereby took cognizance of an offence punishable under Sections 307 and 504 of IPC and directed issue of process as contemplated by the provisions of Section 204 Cr. Pc. As mentioned above, the present petition has been filed to quash the pending criminal proceedings. 3. Heard Sri Rajendra Dobhal and Sri Pankaj Miglani, counsel for the petitioner, and A.G.A. and Sri J.C. Joshi for the respondents. 4. The learned counsel for the petitioner submitted that there is no evidence to prima facie make out a case of offences punishable under Sections 307 and 504 of IPC against the petitioner because on investigation no reliable evidence in regard to the incident 'Was put forward by the complainant and this was also true in respect of the evidence produced before the learned Magistrate under Sections 200 and 202 of Cr. Pc. Pc. It was also argued that the FIR itself, even if taken at its face value and accepted in its entirety, does not prima facie constitute any cognizable offence and therefore, the summoning order passed by the learned Magistrate and the criminal proceedings thereby initiated deserve to be quashed by the court by invoking the power under its inherent jurisdiction. In support of the submissions reliance was placed on the following three reported decisions of the apex court. 1. B.R. Bajaj Vs. State of Punjab and others, 1996 - S.C. Cr. R. page 269. 2. M/s Pepsi Foods Ltd. & Another Versus Spl. Judicial Magistrate & others. 3. Mr. K. Ramakrishna & Ors. Versus State of Bihar & Ors, 2000(2) Supreme (Cr,) 294. ; 2001 J.Cr.C. 27 (SC) 5. On the other hand of behalf on the respondents stress was laid that it is well settled that when exercising jurisdiction under Section 482 Cr. pc., the High Court would not ordinarily embark upon the inquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the allegations would not be sustained and in support thereof reliance was placed on the decision in the leading case of State of Haryana and others versus Bhajan Lal and others, 1992 Supp (1) SCC 335. 6. Having considered the submissions in the light of the legal aspects of the case, it may be pointed out at the outset that the submissions of the learned counsel for the petitioner have no force and that the petition is liable to be dismissed. The reasons are that the allegations made in the FIR dated 27.6.1999 annexure 1, are inherently probable as these are manifestly supported by the statement of the complainant recorded u/s 200 Cr. PC. as well as the evidence of other witnesses mentioned above and recorded U/S 202 Cr. Pc. and the medical evidence on record. In Bhajan Lal's case (supra) the Apex court has held that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. PC. as well as the evidence of other witnesses mentioned above and recorded U/S 202 Cr. Pc. and the medical evidence on record. In Bhajan Lal's case (supra) the Apex court has held that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. There can be no doubt that the present case is not rarest of the rare cases because seven categories of cases were stated by the Apex court by way of illustration and wherein the extra ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr. Pc. can be exercised by the High Court either to prevent abuse of process of any court or otherwise to secure the ends of justice and out of these two categories are relevant for purpose of the present case, viz. "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) ........................... (3) Where the uncontroversial allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused." 7. It need to be mentioned that in the first information report, there are specific allegations of assault and use of firearm by the petitioner and those allegations were corroborated by the complainant in his statement under Section 200 Cr.PC. which were also supported by the evidence produced under Section 202 Cr.PC. and thus, it is obvious that not only the FIR but also the evidence collected by the learned Magistrate in support of the allegations prima facie constitute a cognizable offence and make out a case against the accused-petitioner. In other words, it cannot be said that no prima facie case was made out against the accused-petitioner and also that the FIR and the evidence do not disclose a cognizable offence against him. At this stage whatever appears on the face of the complaint shall be taken into consideration without any enquiry about the reliability of the evidence. In other words, it cannot be said that no prima facie case was made out against the accused-petitioner and also that the FIR and the evidence do not disclose a cognizable offence against him. At this stage whatever appears on the face of the complaint shall be taken into consideration without any enquiry about the reliability of the evidence. In view of this, the present case does not fall in any of the seven categories and particularly the above mentioned relevant two categories of the cases, and considering the settled legal position as laid down by the Apex court in Bhajan Lal's case (supra) no interference is warranted for quashing of the criminal proceedings against the petitioner. Here, it also need to be mentioned that in the three reported cases referred to on behalf of the petitioner, the legal proposition contrary to Bhajan Lal's case has not been laid down and these cases in no way support the contention of the petitioner that the criminal proceedings pending against him require to be quashed. Considering this, there appears no need to enter into the detail discussion about the facts of those cases. 8. For the above reasons, the petition is hereby dismissed.