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2012 DIGILAW 381 (HP)

Sunita Anand v. State of Himachal Pradesh

2012-07-10

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This petition under Article 227 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973, ( for short 'Code') has been filed for quashing FIR No.19 of 2011 dated 06.03.2011, registered against petitioner etc. under Sections 341, 506, 34 IPC at Police Station, East, Shimla, along with final report under Section 173 of the Code, summoning order dated 23.09.2011 issued by Judicial Magistrate 1st Class, (1), Shimla in Case No.1172 of 2011. 2. The facts, in brief, are that petitioner is daughter of Mrs. Sudesh Dogra and late Col.Suresh Chander Dogra, who were joint owners in possession of land measuring 595 square metres, mauza Brock Hurst, Chhota Shimla, on which there is building known as 'Torrentium Sartaj Manor'. On the death of Col. Suresh Chander Dogra, his wife Mrs. Sudesh Dogra came in possession of three flats No.1,8 and 9 in the building 'Torrentium Sartaj Manor'. Mrs. Sudesh Dogra had transferred Flat No.9 along with attic to Ms.Urvashi Dogra in the year 2008. 3. Ms. Urvashi Dogra executed gift deed in favour of petitioner of Flat No.9. The possession of Flat No.9 was also handed over to petitioner in the year 2009, mutation on the basis of gift was also attested. The petitioner has been in possession of Flat No.9 since then. The petitioner has also furnished the flat. 4. On 02.03.2011 Ms. Meera wife of Abbas, Caretaker, of 'Torrentium Sartaj Manor' informed petitioner at Delhi on telephone that she had seen Mrs. Sudesh Dogra and Ms. Urvashi Dogra at about 1.30 P.M., on 02.03.2011 taking out household articles from Flat No.9. The petitioner came to Shimla along with her sister Ms. Seema Sukanya Sahai and one Vishnu on 03.03.2011. The petitioner found locks of the Flat No.9 broken and changed since the locks did not open with the keys of petitioner. Ms. Urvashi Dogra was not present there at that time. The petitioner went to the Police Station, East, and informed the police. 5. The petitioner came along with police in Flat No.9. Mrs. Sudesh Dogra and Ms. Urvashi came out of the attic above the flat, produced some keys and opened the Flat in the presence of petitioner, her sister, Vishnu and police. The petitioner went to the Police Station, East, and informed the police. 5. The petitioner came along with police in Flat No.9. Mrs. Sudesh Dogra and Ms. Urvashi came out of the attic above the flat, produced some keys and opened the Flat in the presence of petitioner, her sister, Vishnu and police. The petitioner was surprised to see that costly items from the Flat had been removed/stolen by breaking into Flat in absence of petitioner and without her knowledge. Mrs. Sudesh Dogra and Ms. Urvashi ransacked Flat No.9, committed house breaking and theft of belongings of the petitioner. 6. The petitioner lodged a written complaint with the police on 03.03.2011, but the police was reluctant to register an FIR. However, with persuasion the police finally registered FIR No.18 dated 06.03.2011 against Smt. Sudesh Dogra and Ms. Urvashi Dogra for offences punishable under Sections 447, 380 and 448 IPC. 7. The respondent No.2 lodged cross FIR No.19 of 2011 on 06.03.2011 for offences punishable under Sections 341, 506 and 34 IPC on the basis of fictitious, nonexistent complaint dated 03.03.2006. The petitioner has reproduced the contents of the complaint of respondent No.2 in the petition. 8. It has been stated that FIR No. 19 of 2011 is a counterblast to FIR No.18 of 2011 lodged by petitioner against respondent No.2, who has cooked up a story and in order to harass and bully the petitioner, the respondent No.2 has lodged an FIR against petitioner for committing theft in the Flat. The learned JMIC (1) has summoned the petitioner vide order dated 23.09.2011. 9. The respondent No.2 had filed a Civil Suit against petitioner in the Court of learned Civil Judge (Junior Division), Court No.4, Shimla, but later on, that suit was withdrawn. The copy of plaint in that suit demonstrates that the entire story has been concocted by respondent No.2 for implicating the petitioner. The petitioner subsequently came to know that respondent No.2 had got the Flat transferred in her name by executing a gift deed on the basis of General Power of Attorney which did not contain the power to alienate. The petitioner has filed a civil suit for possession, declaration and permanent prohibitory injunction against respondent No.2 which is pending in the Court of learned Civil Judge(Senior Division), Shimla. 10. The petitioner has filed a civil suit for possession, declaration and permanent prohibitory injunction against respondent No.2 which is pending in the Court of learned Civil Judge(Senior Division), Shimla. 10. The respondent No.2 during pendency of the suit and despite stay order granted by the Court let out the Flat to another person in order to defeat the rights of the petitioner. The petitioner has also filed a complaint against respondent No.2.and Smt. Sudesh Dogra, but no action has been taken by the police. The petitioner has filed a complaint before learned JMIC (1), Shimla, but despite directions to the police to investigate into the matter and submit a report to the Court, no action has been taken by the police. 11. The allegations in FIR No.19 are false, no such incidence took place. There is no such complaint dated 03.03.2011 as referred in FIR No.19 of 2011. No medical has been conducted to substantiate the allegations levelled in the FIR. No offence is made out against the petitioner, even if the contents of the FIR are believed to be taken as it is. The FIR is liable to be quashed. It is nothing, but an abuse of process of the Court. 12. The complaint contains general allegations, no specific role for commission of offence has been assigned to any person in particular and, more specifically, to the petitioner. The complaint along with summons issued to the petitioner and all ensuing proceedings are liable to be quashed. The police have registered the FIR and put up the challan without there being an iota of evidence against the petitioner. 13. The petitioner is resident of Delhi and suffering from multiple ailments. She is unable to undertake frequent travel due to her heart condition. The continuance of proceedings against her on the basis of FIR would cause grave injustice to her and her family. 14. The Superintendent of Police, Shimla District, has filed short reply. It has been stated that respondent No.2 had lodged a report in the Police Station, East, stating that on 03.03.2011 petitioner along with Sukanya Sahai came to the house of respondent No.2 and tried to dispossess her from Flat No.9 and threatened her with dire consequences. It has been alleged that petitioner and Sukanya Sahai encircled respondent No.2 and pushed her down the stairs and kicked her. Mrs. It has been alleged that petitioner and Sukanya Sahai encircled respondent No.2 and pushed her down the stairs and kicked her. Mrs. Sudesh, mother of the complainant, came there and rescued her. On this, FIR No. 19 of 2011 was registered. 15. The mother of respondent No.2 is an eye witness. On completion of investigation chargesheet has been submitted in the Court. The trial Court came to the conclusion that a prima facie case under Sections 341, 506 IPC is made out and took cognizance. The trial Court issued process against the petitioner. The order issuing process against petitioner is legal and cannot be faulted with at this stage. The defence of the petitioner cannot be considered at the time of issuing of process. 16. The respondent No.2 has also filed reply and took preliminary objections of estoppel and that in pursuance of FIR No.19 of 2011, challan has been put up in the Court, therefore petition is not maintainable. On merits, it has been stated that Mrs. Sudesh Dogra came into possession of Flats No.1,8 and 9 in 'Torrentium Sartaj Manor'. The Flat No.9 was transferred by Mrs. Sudesh Dogra in favour of Ms.Urvashi Dogra. It has been denied that possession of Flat No.9 was handed over to petitioner in the year 2009. It has been denied that petitioner is in possession of the said Flat and same is under lock and key. It has also been denied that petitioner has fully furnished the Flat and stayed in the said Flat with her family. The articles in the Flat in question belong to respondent No.2. It has been denied that any alleged article of the petitioner has been removed from the Flat. It has been denied that FIR No.19 of 2011 is a counterblast to FIR No.18 of 2011. The submission has been made for rejection of the petition. 17. Heard. The articles in the Flat in question belong to respondent No.2. It has been denied that any alleged article of the petitioner has been removed from the Flat. It has been denied that FIR No.19 of 2011 is a counterblast to FIR No.18 of 2011. The submission has been made for rejection of the petition. 17. Heard. The petitioner has placed on record a copy of complaint dated 03.03.2011 of petitioner addressed to Station House Officer, Police Station, East, Chhota Shimla, a copy of FIR No.18 dated 06.03.2011, Police Station, Shimla East, showing petitioner as complainant, a copy of FIR No.19 dated 06.03.2011, Police Station, Shimla East, registered at the instance of respondent No.2, a copy of order dated 23.09.2011 of learned Judicial Magistrate 1st Class, Court No.1, Shimla, issuing process for offences punishable under Sections 341, 506 read with Section 34 IPC in Case No. 1172 of 2011, State v. Sunita Anand, a copy of plaint in Civil Suit No.32/1 of 2011 titled Ms. Urvashi Dogra v. Ms. Sunita Anand etc. and a copy of plaint in another Civil Suit titled Ms. Sunita Anand v. Ms. Urvashi Dogra. 18. In FIR No.19 dated 06.03.2011, the respondent has given reference of her complaint dated 03.03.2011 lodged by her against petitioner and Sukanya Sahai when they allegedly came in Flat No.9 to oust respondent No.2 and made attempts to dispossess respondent No.2 from Flat No.9. In the FIR, it has been alleged that petitioner and Sukanya Sahai threatened respondent No.2, gave beatings and broke her finger nail of left hand. The respondent No.2 in the FIR has stated that she is owner in possession of Flat No.9 and had legal registered papers in her name. The respondent No.2 has stated that on 06.03.2011 when she was coming down the staircase of Flat No.9 at about 11.00 A.M., petitioner and Sukanya Sahai encircled respondent No.2, pushed her, pulled her hair and kicked her. The respondent No.2 cried for help. Mrs. Sudesh Dogra,mother of respondent No.2, came to the rescue of respondent No.2. The petitioner and Sukanya Sahai abused Mrs. Sudesh Dogra and also stopped her. The petitioner and Sukanya Sahai thereafter ran away from the scene. The petitioner and Sukanya Sahai threatened respondent No.2 time and again and physically assaulted respondent No.2. 19. The respondent No.2 cried for help. Mrs. Sudesh Dogra,mother of respondent No.2, came to the rescue of respondent No.2. The petitioner and Sukanya Sahai abused Mrs. Sudesh Dogra and also stopped her. The petitioner and Sukanya Sahai thereafter ran away from the scene. The petitioner and Sukanya Sahai threatened respondent No.2 time and again and physically assaulted respondent No.2. 19. The petitioner has asserted her title over Flat No.9, whereas, respondent No.2 has asserted her title over Flat No.9 'Torrentium Sartaj Manor'. The learned Judicial Magistrate after going through the case, prima facie, recorded her satisfaction for summoning petitioner for offences punishable under Sections 341, 506 read with Section 34 IPC. The Section 341 IPC provides punishment for wrongful restraint which has been defined in Section 339 IPC. According to Section 339, whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully restraint to that person. The Section 506 IPC provides punishment for criminal intimidation. The Section 503 IPC defines criminal intimidation to the effect whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. The Section 34 IPC is with respect to acts done by several persons in furtherance of common intention. The allegations in the FIR against the petitioner are along with Sukanya Sahai. The contention that FIR No.19 of 2011 has been lodged by respondent No.2 in counterblast to FIR No.18 of 2011 is defence of petitioner which will be considered at the appropriate stage by the learned Judicial Magistrate. In the teeth of allegations in FIR No.19 of 2011, it cannot be said that prima facie no case is made out for summoning petitioner under Sections 341, 506, 34 IPC. 20. The petitioner has stated that police after investigation has submitted report under Section 173 Cr.P.C. The learned Judicial Magistrate has summoned the petitioner on 23.09.2011 for offences punishable under Sections 341, 506, 34 IPC. 20. The petitioner has stated that police after investigation has submitted report under Section 173 Cr.P.C. The learned Judicial Magistrate has summoned the petitioner on 23.09.2011 for offences punishable under Sections 341, 506, 34 IPC. The petitioner has not placed on record Section 173 Cr.P.C. report even though petitioner has prayed for quashing of report under Section 173 Cr.P.C. 21. The learned counsel for the petitioner has relied Madhavrao Jiwajirao Scindia and others v. Sambhajirao Chandrojirao Angre and others (1988) 1 SCC 692 , G. Sagar Suri and another v. State of U.P. and others (2000) 2 SCC 636 , B. Suresh Yadav v. Sharifa Bee and another, (2007) 13 SCC 107 , M. Mohan v. State Represented by the Deputy Superintendent of Police (2011) 3 SCC 626 . In these judgments, the Supreme Court has held that under what circumstances the proceedings in a criminal Court can be quashed under Section 482 Cr.P.C. There is no dispute that High Court has power to quash proceedings under Section 482 Cr.P.C. 22. In Mohammed Ibrahim and others v. State of Bihar and another (2009) 8 SCC 751 . The Supreme Court has held that criminal Courts should ensure that the proceedings before it are not used for settling scores or to pressure parties to settle civil disputes. But, at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. In Trisuns Chemical Industry v. Rajesh Agarwal and others (1999) 8 SCC 686 , it has been held that time and again the Supreme Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions. The Supreme Court has noticed State of Haryana and others v. Bhajan Lal and others, 1992 Supp. (1) SCC 335, Rajesh Bajaj v. State NCT of Delhi and others (1999) 3 SCC 259 . 23. The limited question in the present case is whether FIR No.19 of 2011, registered at Police Station, East, Shimla, summoning order dated 23.09.2011 passed by learned Judicial Magistrate 1st Class, Court No.1, Shimla, and Section 173 Cr.P.C. report are liable to be quashed. 23. The limited question in the present case is whether FIR No.19 of 2011, registered at Police Station, East, Shimla, summoning order dated 23.09.2011 passed by learned Judicial Magistrate 1st Class, Court No.1, Shimla, and Section 173 Cr.P.C. report are liable to be quashed. As noticed above, on the basis of material placed on record, it cannot be said that offences punishable under Sections 341, 506, 34 IPC are not made out against the petitioner and for the same reasons it cannot be said that summoning order dated 23.09.2011 under Sections 341, 506, 34 IPC is wrong, more particularly, when learned Judicial Magistrate has recorded her satisfaction on the basis of record for summoning the petitioner for offences punishable under Sections 341, 506, 34 IPC. In these circumstances, the prayers made in the petition cannot be granted to the petitioner. 24. In view of above, petition is dismissed. The pending application is also disposed of in view of disposal of main petition.