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2009 DIGILAW 492 (UTT)

Devendra and others v. State of Uttarakhand

2009-09-24

B.C.KANDPAL

body2009
Judgment This petition under Section 482 Cr.P.C. has been filed by the petitioners, who are facing the trial in Criminal Case No. 5014 of 2007 arising out of Case Crime No. 5/ 2006, under Sections 147, 148,504,506,307,427 and 452I.P.C., pending before the court of Judicial Magistrate, Roorkee, Haridwar, for quashing the proceedings of the aforesaid case. 2. Brief facts of the case are that an F.I.R. was lodged on 11-01-2006 (contained in annexure-1 to the petition) by complainant/respondent no. 2 stating therein that accused persons came in the office and started abusing the complainant. It is also alleged that accused persons also fired but it could not hit anyone. on the basis of the First Information Report a charge sheet was submitted- by the police under Sections 147, 148, 504, 506, 307, 427, 452 I.P.C. on 21-02-2006. The Magistrate on the basis of the aforesaid charge sheet summoned the petitioners under Sections 147, 148, 504,506,307,427, 452 I.P.C vide order dated 30-32006 (contained in Annexure-4 to the petition). The record further reveals that thereafter the S.H.O. concerned moved an application for further investigation under Section 173 (8) Cr.P.C. on 5-4-2006 which was allowed by the Magistrate concerned on the same day. The Investigating Officer thereafter submitted the supplementary charge sheet under Sections 147,148,504, 506,427 I.P.C. and on the basis of this charge sheet the Magistrate vide order dated 11-9- 2007 took the cognizance and summoned the petitioners/accused persons under Sections 147,148,427,504,506,I.P.C. 3. Further, on 15-11-2007 when one of the accused persons, Rajesh moved an application for surrender, the Magistrate on the same day passed an order that as the cognizance on the previous day i.e. 30-3-2006 was taken under Sections 147, 148,504,506,307, 427and 452 I.P.C., therefore, the accused be taken into custody for the offence under Sections 147, 148,307,427,452,504,506 I.P.C. 4. Feeling aggrieved by the aforesaid order the petitioners have preferred the present petition before this Court for quashing the proceedings of the aforesaid criminal case. 5. Heard Sri Vivek Shukla, learned counsel for the petitioners, Sri S.S. Adhikari, learned A.G.A. for respondent no. 1, Sri Rajendra Singh, learned counsel for respondent no. 2 and perused the record. 6. Feeling aggrieved by the aforesaid order the petitioners have preferred the present petition before this Court for quashing the proceedings of the aforesaid criminal case. 5. Heard Sri Vivek Shukla, learned counsel for the petitioners, Sri S.S. Adhikari, learned A.G.A. for respondent no. 1, Sri Rajendra Singh, learned counsel for respondent no. 2 and perused the record. 6. The learned C.J.M. while passing the impugned order dated 15-11-2007 ignored this aspect that vide order dated 11-09-2007 the same Chief Judicial Magistrate took cognizance against the petitioners under Sections 147, 148,427,504,506 I.P.C. It is surprised to note here that learned Chief Judicial Magistrate while passing the impugned order and taking the cognizance against the petitioners for additional offence under Sections 307 and 452 I.P.C. did not care to look into the documents available on record. The learned Magistrate has not recorded even a single reasoning in the order that as to on what basis he reached the conclusion that offence under Sections 307 and 452 I.P.C. is prima facie made out against the petitioners for taking the cognizance. The First Information Report, which has been lodged by the respondent no. 2, itself indicates that offence under Section 307 I.P.C. in this case appears to be absolutely doubtful for the reason that in the alleged incident no one sustained any injury and further it is very clear from the perusal of the record that offence under Section 452 I.P.C. is also not made out. The place where the offence is alleged to have taken place is a public office and not a residential accommodation occupied either by the claimant/complainant or by any other person. 7. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence. 8. The Hon'ble Apex Court in R. Kalyani vs. Janak C. Mehta, reported in (2009) 1 SCC 516, has laid down the law in the following terms: "16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. 8. The Hon'ble Apex Court in R. Kalyani vs. Janak C. Mehta, reported in (2009) 1 SCC 516, has laid down the law in the following terms: "16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The court, while exercising its inherent jurisdiction, although would not interfere with .a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint." 9. This Court, while exercising its inherent jurisdiction, although would not interfere with a genuine compliant keeping in view the purport and object for which the provisions of Section 482 Cr.P.C. has been introduced, but at the same time the Court would not hesitate to exercise its jurisdiction in appropriate cases and one of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint/F.I.R. 10. In my opinion, as I have already expressed my views that prima facie case for commission of offences under Sections 307 and 452 I.P.C. is not made out. The learned C.J.M. while passing the impugned order dated 15-11-2007 has committed gross illegality apparent on the face of the record which has caused the fragrant injustice to the petitioners" It is a clear-cut case of abuse of the process of the court and I think that under the aforesaid circumstances, in case, if the trial to proceed against the petitioners for the offences under Section 307 and 452 I.P.C. would be permitted to be continued, the same would be a futile exercise. 11. As far as other offences and concerned, I am not supposed to embark upon an enquiry with regard to correctness of the allegations leveled in the First Information Report and the charge sheet filed by the police. It is subject matter of the evidence to be adduced before the trial court. 11. As far as other offences and concerned, I am not supposed to embark upon an enquiry with regard to correctness of the allegations leveled in the First Information Report and the charge sheet filed by the police. It is subject matter of the evidence to be adduced before the trial court. Any judgment rendered by me at this stage would amount to a judgment without assessment of the evidence. I am not supposed to act as a trial judge while exercising the jurisdiction under Section 482 Cr.P.C. Therefore, to my mind, the trial against the petitioners 147, 148,427, 504, 506 I.P.C. is to be continued, but in any case if the trial is permitted to be continued against the petitioners under Sections 307, 452 I.P.C., then the same would amount to abuse of the process of the court. 12. I, therefore, partly allow this petition and set aside the order dated 15-11-2007 passed by the Magistrate concerned to proceed against the petitioners for the offences under Sections 307 and 452 I.P.C. I further direct the Magistrate concerned to proceed against the petitioners with the offences under Sections 147, 148,427,504,506 I.P.C. on the basis of cognizance order dated 11-09-2007. However, the trial against the petitioners for the offences under Sections 307, 452 I.P.C., is hereby quashed.