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2014 DIGILAW 1015 (HP)

Satish Kumar v. Onkar Singh

2014-07-31

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT : 1. This petition has been preferred u/s 482 of the Code of Criminal Procedure for quashing of FIR No. 144 of 2011 dated 9.12.2011 registered at Police Station, Baijnath and subsequent proceedings pending before the learned Judicial Magistrate 1st Class, Baijnath, District Kangra, H.P. 2. "Key facts" necessary for the adjudication of this petition are that FIR No. 144 of 2011 was registered on 9.12.2011 against the petitioners for offence u/s 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The matter was investigated by the police. Cancellation report was filed on 14.12.2011. Thereafter, private respondents filed a petition before the learned Judicial Magistrate 1st Class, Baijnath, District Kangra. He ordered reinvestigation of case on 26.11.2012. Thereafter, the matter was again reinvestigated by the police and cancellation report was filed on 17.12.2012. Private respondents filed petition before learned Judicial Magistrate 1st Class seeking reinvestigation in the matter or treating the petition as a private complaint. Judicial Magistrate treated the same as private complaint on 9.12.2013 and recorded the preliminary evidence. Statements of CW-1 Onkar Singh, CW-2 Bhagat Ram, CW-3 Narender Kumar and CW-4 Raj Kumar were recorded by the Judicial Magistrate, 1st Class, Baijnath. Petitioner was summoned vide order dated 9.12.2013 by the Judicial Magistrate, 1st Class, Baijnath. On 20.1.2014, notices were ordered to be issued to the petitioners returnable on 24.2.2014. It is in these circumstances, present petition has been filed. 3. What emerges from the facts enumerated in the petition and the material placed on record is that Irrigation and Public Health Department has installed a water hand pump in the locality. Petitioner and private respondents were using the water of the hand pump. However, it is borne out from the record that a dispute has arisen between the petitioners and private respondents the manner in which the water of hand pump was to be used. According to the averments of CW-1 Onkar Singh, CW-2 Bhagat Ram, CW-3 Narender Kumar and CW-4 Raj Kumar, the water of hand pump was to be used exclusively by the scheduled castes community but later on petitioners and similarly situate persons were also permitted to use the water of hand pump. However, as per their statements, petitioners and similarly situate persons did not pay the electricity charges for the use of water. However, as per their statements, petitioners and similarly situate persons did not pay the electricity charges for the use of water. The committee constituted for the purpose decided not to allow the petitioners to use the water of the hand pump. Thereafter, the matter went to the Panchayat. Private respondents agreed to permit the petitioners and similarly situate persons to use the water of hand pump with a condition that the electricity charges etc. will be paid by all of them. However, on 27.10.2011, petitioners used castiest remarks against the respondents, which led to taking of cognizance by the Judicial Magistrate. The cancellation report was filed by the Police on 14.12.2011. The Judicial Magistrate on 26.11.2012 has ordered to reinvestigation of the matter. 4. Their Lordships of the Hon'ble Supreme Court in Ramachandran Vs. R. Udhayakumar and Others, (2008) 5 SCC 413 have held that instead of fresh investigation there can be further investigation if required u/s 173(8) of the Code of Criminal Procedure. Their Lordships have further held that it is evident from the plain reading of section 173 of the Code of Criminal Procedure that after completion of investigation u/s 173(2) of the Code of Criminal Procedure, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. Their Lordships have held as under: 6. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar Vs. The State of Kerala and Others, (1998) 5 SCC 223 . It was, inter alia, observed as follows: 24. The dictionary meaning of "further" (when used as an adjective) is "additional; more; supplemental". "Further" investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports--and not fresh report or reports--regarding the "further" evidence obtained during such investigation. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a "further" report or reports--and not fresh report or reports--regarding the "further" evidence obtained during such investigation. 7. In view of the position of law as indicated above, the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required u/s 173(8) of the Code. The same can be done by the CB (CID) as directed by the High Court. 5. However, fact of the matter is that despite the orders passed by the Judicial Magistrate for reinvestigation, the cancellation report was filed on 17.12.2012. The trial court ought to have taken into consideration the cancellation report dated 14.11.2011 and 17.12.2012 before taking cognizance of the matter by treating the petition as private complaint. Trial court has not applied its mind by taking into consideration all the facts and circumstances before recording the preliminary evidence. The court has to find out whether any prima facie case is made out or not on the basis of material placed on record. Initiation of process should not be in a mechanical manner. Trial court has failed to take into consideration that there was a civil dispute with regard to use of water of hand pump. The dispute was primarily with regard to payment of electricity charges by the parties, even as per the statements of CW-1 Onkar Singh, CW-2 Bhagat Ram and CW-4 Raj Kumar, recorded by the Judicial Magistrate. According to the statement of CW-1 Onkar Singh, a sum of Rs. 80/- per house was to be paid on use of water of hand pump. However, he has not produced any record. The matter has already gone to the Panchayat and the same was resolved. The proceedings under Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 are serious and have to be initiated in case there is a prima facie evidence. The proceedings under this Act cannot be initiated to settle the scores. If there is any dispute of civil nature, it should be resolved in accordance with law. Filing of FIR in a mechanical manner would prove counter-productive. 6. The proceedings under this Act cannot be initiated to settle the scores. If there is any dispute of civil nature, it should be resolved in accordance with law. Filing of FIR in a mechanical manner would prove counter-productive. 6. Their Lordships of the Hon'ble Supreme Court in Narinder Singh and Others Vs. State of Punjab and Another, (2014) 6 SCC 466 have succinctly explained the principles under what circumstances proceedings can be quashed u/s 482 of the Code of Criminal Procedure when the matters are compromised. Their Lordships have held as under: 29.1. Power conferred u/s 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences u/s 320 of the Code. No doubt, u/s 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. 29.4. On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 7. Accordingly, the petition is allowed. FIR No. 144 of 2011 dated 9.12.2011 and orders dated 9.12.2013 and 20.1.2014 and subsequent proceedings pending in the court of Judicial Magistrate, 1st Class, Baijnath u/s 3(1)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 are quashed to secure the ends of justice. Pending application(s), if any, also stands disposed of.