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2007 DIGILAW 1834 (PNJ)

Surinder Kamboj v. State Of Punjab

2007-10-11

RANJIT SINGH

body2007
Judgment Ranjit Singh, J. 1. The petitioners, three in number, have prayed for cancellation of an FIR No. 95 dated 27.10.2002 registered against them under Sections 376/342/506/148/149 IPC and under Sections 25/27 of the Arms Act. The FIR, copy of which is at Annexure P-1, is lodged by respondent No. 2-Lallo Bai @ Raj Rani, resident of Basti Lallawali, Jalalabad, Tehsil Jalalabad, Distt. Ferozepur. 2. Petitioner No. 1 claims to be Vice President of District B.J.P. and Ex- Chairman of the Land Mortgage Bank, Jalalabad. Petitioner No. 2 is his cousin and Lambardar and petitioner No. 2 is a political supporter of petitioner No. 1. 3. The impugned FIR is statedly lodged by respondent No. 2-Lallo Bai alias Raj Rani at the instance of the then sitting MLA from Jalalabad, namely Shri Hans Raj Joshan. It is disclosed that petitioner No. 2 had filed one FIR No. 101 dated 27.10.1999 under Section 307 against Hukam Chand and Sher Chand, brothers of Hans Raj Joshan. To get even with the petitioner, the present FIR has been filed by respondent No. 2 at the backing of the MLA. 4. It is noticed that earlier the respondent No. 2 made a complaint to Punjab Human Rights Commission, which was referred to the ADGP, Crime for investigation. The ADGP, Crime deputed Shri Didar Singh, DSP to investigate the matter. After thorough investigation duly supervised by ADGP, Crime, it was found that the complainant had falsely implicated the accused persons due to political rivalry and accordingly no offence was made out against the petitioners. Noticeably, the prosecutrix also appeared in person before the Human Rights Commission and made a statement that she was not interested in pursuing the complaint filed by her and sought its dismissal. The complaint, as such, was dismissed as withdrawn. Copy of this order dated 1.4.2003 is annexed with the petition as Annexure P-2. While dismissing the complaint it is observed by the Commission that the enquiry report corroborated the statement of the complainant. 5. This enquiry report was then communicated by the ADGP Crime attached with the Human Rights Commission, to the SSP, Ferozepur for cancellation of the FIR registered against the petitioners at the instance of respondent No. 2. While dismissing the complaint it is observed by the Commission that the enquiry report corroborated the statement of the complainant. 5. This enquiry report was then communicated by the ADGP Crime attached with the Human Rights Commission, to the SSP, Ferozepur for cancellation of the FIR registered against the petitioners at the instance of respondent No. 2. In this communication, reference is made to the affidavit given by the prosecutrix as well as the statement made by her before the Human Rights Commission while recommending cancellation of the FIR. The SSP, Ferozepur, however, did not act in the matter to cancel the FIR despite reminders by ADGP, Human Rights Commission. Even the petitioners had filed application before the SSP, Ferozepur on 10.5.2003, seeking cancellation of the FIR. Still no action followed at the level of the SSP. 6. Strange it may be to notice that prosecutrix appears to have had a change of mind and filed Crl. Misc. No. 53711-M of 2002 praying for proper investigation of the FIR which was pending cancellation on the basis of her stand. This Court, being unaware of the background as noticed above, issued notice of motion in the said petition. This, however, was ultimately got dismissed as withdrawn on 9.5.2003 in view of the affidavit filed by respondent No. 2, copy of which is at Annexure P-7. This affidavit was placed on record of Crl. Misc. No. 53711-M of 2002 by moving a proper Application Crl. Misc. No. 12766 of 2003. In the affidavit, the prosecutrix had deposed that her thumb impression was obtained on the complaint against the petitioner while she was not in her full senses due to some intoxicant given to her in "Pakoras". She even made a statement before Illaqa Magistrate, copy annexed as P-6 stating that she was taken to hospital and got medically examined and her thumb impression obtained on plain paper. She filed a complaint against Angrej Singh Toonda, Shamsher Singh and Manjit Kaur wife of Angrej Singh under Sections 506 and 323 IPC. Manjit Kaur is stated to be an eye-witness of the present occurrence of rape as alleged by the prosecutrix. In this background, Criminal Misc. No. 53711-M of 2002 was got dismissed as withdrawn on 9.5.2003. She filed a complaint against Angrej Singh Toonda, Shamsher Singh and Manjit Kaur wife of Angrej Singh under Sections 506 and 323 IPC. Manjit Kaur is stated to be an eye-witness of the present occurrence of rape as alleged by the prosecutrix. In this background, Criminal Misc. No. 53711-M of 2002 was got dismissed as withdrawn on 9.5.2003. Averment further is made in the petition that this application against the petitioners was falsely made and in fact some other persons were responsible for commission of an offence. It is thus stressed that the allegation against the petitioners is false. 7. Normally, it may not be open to go in to the veracity of allegation while exercising jurisdiction under Section 482 Cr.P.C. It is the job of the trial Court to go into these aspects on the basis of evidence that the parties may lead. No prayer for quashing the FIR on merit is made but the quashing is being sought only on the basis of a compromise reached between the petitioners and respondent No. 2. In support of his plea, the counsel would refer to the conduct of respondent No. 2 where she has taken stand not to press these allegations against the petitioners at more than one forum. Before the Human Rights Commission she withdrew the complaint disclosing that she was asked to make these allegations. It is also not denied that Human Rights Commission had sent communication to SSP, Ferozepur for cancellation of this FIR. For reasons undisclosed, the SSP, Ferozepur did not take any action to cancel this FIR. Finding that the prosecutrix had been taking different stands at different times, it was considered appropriate to summon respondent No. 2 Lallo Bai alias Raj Rani so as to clearly understand her present stance specially so when her Crl. Misc. No. 25027 of 2003 for proper investigation into the FIR was pending. In fact Mr. Sidhu, counsel appearing for the prosecutrix, had made a statement before the Court on November 13, 2006 that the prosecutrix (respondent No. 2) did not wish to press this petition and she would have no objection in case the FIR registered at her instance is quashed. The prosecutrix accordingly appeared before this Court on 23.2.2007 and made a statement before the Court that she would not have any objection if the present FIR registered at her instance is ordered to be quashed. 8. The prosecutrix accordingly appeared before this Court on 23.2.2007 and made a statement before the Court that she would not have any objection if the present FIR registered at her instance is ordered to be quashed. 8. While adjourning the case for further proceedings and arguments her presence was dispensed with. She is duly represented before the Court and now continues to stick to her stand that she has reached compromise and that she is not interested in pursuing this prosecution against the petitioners. 9. Normally courts may be reluctant to cut short prosecution in such like cases and quash FIR on the basis of compromise, but this case appears to be different and strange in nature. The prosecutrix apparently has blown hot and cold at different stages of the case. She first approached Human Rights Commission but then withdrew her complaint when it was found not substantiated on enquiry. She then approached this Court for proper enquiry into the FIR but again made a sommersault by moving application for withdrawing her petition at subsequent stage. She seems to be somewhat consistent now and does not wish to prosecute this FIR registered at her instance. This matter was enquired into under the directions of Human Rights Commission. This independent probe has revealed that the allegations are not substantiated. It appears that the prosecutrix has been playing into the hands of some persons and has been used as pawn in some political game. This perhaps is the only explanation for her changing stances at different stages of the pendency of this case. The fact remains that now the prosecutrix is no more interested in prosecuting this FIR against the petitioners. The proceedings against the petitioners would thus appear to be an abuse of process of Court. 10. In view of the investigation that has been held so far and the fact that the prosecutrix now is only likely to support the case of prosecution, the proceedings even if allowed to continue would be an exercise in futility. There may have been some difficulty in quashing of the FIR earlier in view of the law laid down in Dharambir v. State of Haryana, 2005(3) RCR(Criminal) 426 but that view can no more be considered valid in terms of the decision of Kulwinder Singh v. State of Punjab, 2007(3) RCR(Criminal) 1052 (P&H). There may have been some difficulty in quashing of the FIR earlier in view of the law laid down in Dharambir v. State of Haryana, 2005(3) RCR(Criminal) 426 but that view can no more be considered valid in terms of the decision of Kulwinder Singh v. State of Punjab, 2007(3) RCR(Criminal) 1052 (P&H). As per the ratio of law laid down by Five Judges Bench of this Court in Kulwinder Singhs case (supra), there is apparently no impediment before the Court to quash the FIR in criminal case on the basis of compromise. As held by the Court in this case, there is no embargo or any other curtailment which can whittle down the power under Section 482 Cr.P.C. Such powers are not having any fetter and are not eclipsed by any contingencies and are not to be made diminutive in sense and substance as has been observed in the case of Kulwinder Singh (supra). Only caution that may need to be kept in view by the Court can be noticed in para 32 of the judgment, which is :- "The power under Section 482 of the Cr.P.C. is to be exercised Ex- Debitia Justitie to prevent an abuse of process of Court. There can neither be an exhaustive list not the defined parameters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery." 11. There is nothing to suggest that compromise in this case is abhorrent to lawful composition of the society or would promote savagery. There is nothing to suggest that compromise in this case is abhorrent to lawful composition of the society or would promote savagery. Considering the facts as noticed in detail, it will be futile to allow this prosecution to continue and if allowed to continue, it may lead to abuse of the process of Court. 12. In the totality of facts and circumstances of this case, the present petition is allowed and FIR and all other subsequent proceedings arisen therefrom are hereby quashed.