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2013 DIGILAW 827 (HP)

Sanjeev Bhardwaj v. Sate of H. P.

2013-09-20

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. (Oral): Challenge is to the order dated 1.2.201 2, passed by learned Chief Judicial Magistrate, Lahaul Spiti at Kullu, in case No.138-1 of 2011, whereby in view of the preliminary evidence led by respondent Smt. Sheela Devi, hereinafter referred to as ‘the complainant’, on finding sufficient grounds to proceed further against the accused persons under Sections 427, 447, 506 read with Section 34 IPC, they all have been summoned in the case. Petitioner is one of the accused persons in the trial Court. 2. By filing this petition, inherent jurisdiction of this Court under Section 482 Cr. P.C. is sought to be exercised for quashing of impugned order on the ground, inter-alia, that from the preliminary evidence produced by the respondent- complainant, allegations of her alleged beating by the accused persons, have not at all been established, as CW1 Dr. Mrs. Abhilasha Thakur, who medically examined her, did not notice any injury on her person. Also that the dispute, if any between the parties, as disclosed from the complaint, is purely civil in nature and no criminal liability arises out of the same. The complaint allegedly is counter blast of the complaint lodged against the respondent by the accused-petitioner previously in which a compromise was entered into between them. It is, therefore, submitted that there was no occasion for her to have filed the present complaint. It is also alleged that there is delay in filing the complaint, which remained unexplained and as such on this score also, the complaint deserves to be quashed. 3.On behalf of the accused-petitioner, it is argued that there is no iota of evidence to suggest, even prima-facie, the commission of the alleged offence by the accused petitioner. According to leaned counsel, to allow the complaint to proceed further, would amount to abuse of process of the Court. It has, therefore, been urged that the complaint as also the proceedings conducted therein, including impugned order, be quashed and set aside. 4.Learned counsel, representing the respondent- complainant, while repelling the arguments addressed on behalf of the accused, has forcefully contended that the material available on record is sufficient to establish prima- facie the commission of the alleged offence by the accused- petitioner and his co-accused. 4.Learned counsel, representing the respondent- complainant, while repelling the arguments addressed on behalf of the accused, has forcefully contended that the material available on record is sufficient to establish prima- facie the commission of the alleged offence by the accused- petitioner and his co-accused. 5.Having gone through the record and also analyzing the rival submissions, before coming to the merits of the case, it is desirable to take down the legal principles applicable to a case of this nature settled by the Apex Court in State of Haryana and others versus Ch. Bhajan Lal and others, AIR 1992 Supreme Court 604. The relevant portion of this judgment reads as follow: “108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to given an exhaustive list of myriad kind of cases wherein such power should be exercised.3. 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. 4.Wherethe allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 5.Where the uncontroverted 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.6. 5.Where the uncontroverted 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.6. Where, the alle gations in the F.I.R do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 7.Where the allegations made in the FIR or complaint are so absurdand inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 8. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding in instituted) to theinstitution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 6. What, therefore, emerges from the law so laid down by the Apex Court is that the inherent powers under Section 482 Cr. P.C, should not be exercised to defeat the legitimate prosecution and the High Court rather should refrain from exercising such powers in a case where on an information lodged at the police Station an offence is registered and the evidence collected during the course of investigation. Such powers, however, can be exercised in those cases where the allegations in the complaint, even if taken at its face value and accepted as true in its entirety, does not disclose even prima- facie the commission of an offence as it is that complaint which can be said to be the abuse of process of law and deserves to be quashed. 7.The apex Court has again held in State of Madhya Pradesh versus Surendra Kori, (2012) 10 SCC 155 , as under: “14. The High Court in exercise of its power under Section 482 Cr.P.C. does not function as a court of appeal or revision. 7.The apex Court has again held in State of Madhya Pradesh versus Surendra Kori, (2012) 10 SCC 155 , as under: “14. The High Court in exercise of its power under Section 482 Cr.P.C. does not function as a court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C., should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.” 8. Now if adverting to the rival contentions and also the evidence available on record at this stage in the light of above legal position, admittedly there is boundary dispute between the respondent-complainant and the accused party. There is again no denial to the quarrel leading to such dispute having taken place between the accused-petitioner and the respondent on 2.12.2009. Matter was reported to the police and as per Rapat No.21 dated 2.12.2009 in the Rojnamcha of Police Post City, Akhara Bazar, Kullu, HC Bhagat Ram accompanied by LHC Kuldip Kumar and lady Constable Hara Dei, went to the spot and found the respondent quarrelling with the accused petitioner, who told the said Head Constable that she had demolished the boundary wall of KVS school of which he was Principal. The respondent-complainant though was asked by Head Constable Bhagat Ram not to indulge in any quarrel, but to no avail and to the contrary, she continued in hurling abuses to the accused persons. She, therefore, was brought to the Police Station. There she was made to understand by the Station House Officer, but again without any result and to the contrary when she raised hue and cry in the Police Station, the SHO had to call her son Vinod Kumar, who in his statement allegedly undertook not to cause any hindrance in the ongoing construction work of KVS school, without resorting to legal remedy and obtaining stay order from the Court. Thereafter he took the respondent-complainant with him from the Police Station. 9. Thereafter he took the respondent-complainant with him from the Police Station. 9. Further allegations in the complaint and also in the statement of the respondent-complainant are that when on that day she returned to her house from the Police Station, the accused persons with common intention entered into her land and destroyed pots and boundary wall and caused damage worth ‘10,000/- to her. Though she reported the matter to the police and higher authorities and requested to register the report against the accused persons, however, no report was registered against them. 10. The allegations, as disclosed from the complaint and her statement, are that not only loss worth more than ‘10,000/- has been caused to her by the accused persons by destroying her pots and boundary wall, but she was threatened also with dire consequences. Though CW1 Dr. (Mrs) Abhilasha Thakur, has not noticed any external injury on her person, however, from her statement and also from the statement of CW2 lady Constable Hara Devi and CW3 HHC Chander Prakash, it is clear that the respondent-complainant was taken to the hospital for medical examination and may be on her allegations of being beaten up by the accused persons. 11. The present, therefore, is not a case where it can be said that the complaint and the preliminary evidence produced by the complainant do not disclose the commission of any cognizable offence. The present cannot also be said to be a time barred case for the purpose of taking cognizance for the reason that the sentence provided for the commission of offence punishable 427 IPC is two years imprisonment; or fine; or with both. Therefore, in terms of sub-section (2)(c) of Section 468 of the Code of Criminal Procedure, for the commission of offence punishable under Section 427 IPC, the limitation for taking cognizance has been prescribed as three years. Since the alleged occurrence is of 2.12.2009 and the complaint was filed on 30.3.20 1 1, therefore, the same is well within the period of limitation and the trial Court has rightly taken cognizance of the offence, the accused-petitioner and his co-accused allegedly committed. 12. There is no substance in the contention raised on behalf of the accused-petitioner that neither the complaint nor the preliminary evidence produced by the complainant discloses the commission of any cognizable offence against the accused persons. 12. There is no substance in the contention raised on behalf of the accused-petitioner that neither the complaint nor the preliminary evidence produced by the complainant discloses the commission of any cognizable offence against the accused persons. The present, therefore, is not a case where further proceedings against the accused persons would amount to abuse of process of law or that the material available on record does not disclose commission of any cognizable offence against the accused persons. This petition as such in all fairness and in the ends of justice deserves dismissal and the same is accordingly dismissed.