Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1994 (HP)

Kali Dass v. Shobha Ram

2014-12-24

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : Tarlok Singh Chauhan, J. This petition, under section 482 of the Code of Criminal Procedure (for short, the Code) read with Article 227 of the Constitution of India seeks quashment and setting –aside the complaint dated 12.6.2007 (Annexure P-3) made by respondent No. 1 before the learned Judicial Magistrate Ist Class, Amb, District Una, H.P., order dated 6.5.2008 (Annexure P-8) issued by the learned Magistrate whereby he issued process against the petitioners and order dated 10.3.2011 (Annexure P-11) whereby the petitioners were summoned for offences, under sections 451, 323, 506, 148 read with section 149 IPC and lastly the order dated 30.6.2014 (Annexure P-16) passed by learned Additional Sessions Judge (II), Una, whereby the revision petition preferred by the petitioners against the summoning order has been ordered to be dismissed. 2. The parties are co-owners of certain land situate in Lower Lohara, Tehsil Amb, District Una. Respondent No. 1 appears to have initiated partition proceedings with respect to the land during the course whereof it is alleged that respondent No. 1 alongwith his son was seeking to change the nature of joint land which constrained respondent No.2 to file a suit for permanent injunction. The suit was instituted on 31.5.2007 and order of status quo was passed by the learned court on 11.6.2006, which order was subsequently confirmed on 3.8.2007. 3. Case of the complainant who is respondent No. 1 herein is that on 1.6.2007, while he was lying in the verandah of his house, the petitioners came there and gave him beatings. The petitioners No. 1 to 5 were having dandas in their hands, whereas petitioner No. 6 was alleged to be armed with Drat. They hurled filthy abuses upon respondent No.1 and his mother and sisters and it is also alleged that petitioner No. 1 gave “Lathi” blows to the wife of respondent No.1. It is further alleged that all the petitioners ran behind her and after entering the house of the complainant they again gave “Lathi” blows to respondent No.1. It is also alleged that respondent No. 1 went to lodge an FIR at the police station on 1.6.2007, but was asked to come on 3.6.2007. When he went again on 3.6.2007, he was asked to come on 5.6.2007 and thereafter lastly on 8.6.2007 when the police refused to take any action and asked respondent No.1 to file a complaint. 4. When he went again on 3.6.2007, he was asked to come on 5.6.2007 and thereafter lastly on 8.6.2007 when the police refused to take any action and asked respondent No.1 to file a complaint. 4. On the basis of such allegations complaint (Annexure P-3) came to be filed on 12.6.2007. The learned Magistrate recorded the statement of the complainant and one Ashok Kumar on 2.6.2007, while the statement of another witness Sh. Desh Kumar was recorded on 29.6.2007. The Magistrate thereafter sent the copy of the complaint for investigation to the police under section 202 of the Code. The police reported that allegations made in the complaint were totally unsubstantiated and the complainant was wasting the time of the court. The respondent No. 1 filed objections to the report and thereafter the Magistrate summoned the petitioners under sections 148, 451, 323 read with section 149 IPC and held that there was no ground for proceeding against the petitioners under section 147, 323, 452 and 341 IPC. This order of the Magistrate was challenged in revision before the Additional Sessions Judge, Una, who vide order dated 19.11.2009 allowed the revision by relegating the parties to the position as it existed on 7.3.2008 and Magistrate was directed to proceed from the aforesaid date in order to determine whether sufficient grounds exist to proceed against the petitioners. 5. The Magistrate vide order dated 10.3.2011 found sufficient grounds to summon the petitioners for offence under sections 451, 323, 506, 148 read with section 149 IPC. This order too came to be challenged in revision before the learned Additional Sessions Judge, who vide order dated 30.6.2014 dismissed the same. 6. It is contended by the learned counsel for the petitioners that allowing the criminal proceedings to continue against the petitioners, when pre-summoning evidence does not make out any offence would tantamount to abuse of process of court, inasmuch as, a false case has been made out against the petitioners. It is further contended that in the teeth of the order passed by the then Additional Sessions Judge, whereby specific directions had been issued to the Magistrate to record reasons for issuing process, the order was not sustainable for want of reasons. It is also argued that impugned order does not reflect that the Magistrate has recorded his satisfaction before summoning the petitioners. 7. Sh. It is also argued that impugned order does not reflect that the Magistrate has recorded his satisfaction before summoning the petitioners. 7. Sh. Ajay Sharma, learned counsel for respondent No.1 on the other hand has contended that present petition under section 482 of the Code read with Article 227 of Constitution which is akin to a second revision is not maintainable in view of specific bar imposed under the Code. He further submitted that since there is no irregularity much-less illegality committed by the courts below, therefore, these orders should not be interfered with. 8. Indisputably judicial process should not be an instrument of oppression or needless harassment. The court should be circumvent and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly. 9. It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Section 482 of the Code empowers this court to exercise its inherent powers to prevent abuse of process of the court and to quash the proceedings instituted on complaint, but such powers can be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations as set out in the complaint do not constitute the offence for which cognizance is taken by the Magistrate, it is open to this court to quash the same in exercise of powers, under sections 482 of the Code. 10. In the Case of Dhanalakshmi vs. R.Prasanna Kumar and others 1990 Supp 1 SCC 686, a three Judge Bench of Hon'ble Supreme Court held as under:- “3. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which the cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court.” 11. In the case of Chand Dhawan vs. Jawahar Lal and Ors. 1992 AIR (SC) 1379, the Hon'ble Supreme Court while considering the power of the High Court under Section 482 Code of Criminal Procedure and quashing the criminal proceedings, observed that when the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage of the Magistrate taking cognizance of the offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of Court or not. 12. In Radhey Shyam Khemka vs.State of Bihar, (1993) 3 SCC 54 , the Hon'ble Supreme Court held as under:- “8. The complaint made by the Deputy secretary to the government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. The complaint made by the Deputy secretary to the government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet- has been submitted. On basis of that charge-sheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High court or by this court. If accepting the allegations made and charges levelled on their face value, the court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. This court has repeatedly pointed out that the High court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial court. The power under Section 482 of the Code has been vested in the High court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High court to hold a parallel trial, only on basis of the statements and documents collected during investigation or inquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed.” 13. In the case of Mushtaq Ahmad vs. Mohd. Habibur Rehman Faizi and others (1996) 7 SCC 440 , the Hon'ble Supreme Court made the following observations:- “3. In the case of Mushtaq Ahmad vs. Mohd. Habibur Rehman Faizi and others (1996) 7 SCC 440 , the Hon'ble Supreme Court made the following observations:- “3. Having perused the impugned judgment in the light of the complaint and its accompaniments we are constrained to say, that the High Court exceeded its jurisdiction under Section 482, Cr. P.C. in passing the impugned judgment and order. It is rather unfortunate that though the High Court referred to the decision in State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335: (1992 AIR SCW 237), wherein this Court has enumerated by way of illustration the categories of cases in which power to quash complaint or FIR can be exercised, it did not keep in mind-much less adhered to-the following note of caution given therein (SCC p.379, para 103) "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or other wise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice". 14. The scope of exercising of powers under section 482 Cr.P.C. was subject matter of recent decision of the Hon'ble Supreme Court in Binod Kumar & Ors. vs. State of Bihar & Anr. JT 2014 (12) SC 286 wherein it has been observed as follows:- “9. In proceedings instituted on criminal complaint, exercise of the inherent powers to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous. It is well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection, it should be exercised to see that the process of law is not abused or misused. The settled principle of law is that at the stage of quashing the complaint/FIR, the High Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein. The settled principle of law is that at the stage of quashing the complaint/FIR, the High Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein. In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi (1976) 3 SCC 736 , this Court enumerated the cases where an order of the Magistrate issuing process against the accused can be quashed or set aside as under: “(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is a sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of a complaint by legally competent authority and the like.” 9.1. The Supreme Court pointed out that the cases mentioned are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash the proceedings. 10. In Indian Oil Corporation vs. NEPC India Ltd. And Ors. , (2006) 6 SCC 736 , this Court has summarized the principles relating to exercise of jurisdiction under Section 482 Cr.P.C. to quash complaints and criminal proceedings as under:- “The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few— Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [JT 1988 (1) SC 279], State of Haryana v. Bhajan Lal ,1992 Supp (1) SCC 335; Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194 , Central Bureau of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591 ;State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164 , Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259 ; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd (2000) 3 SCC 269 Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 , M. Krishnan v. Vijay Singh (2001) 8 SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 . The principles, relevant to our purpose are: (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides /malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 15. The learned counsel for the petitioners has strenuously argued that once the learned Additional Sessions Judge vide his order dated 19.11.2009 had set-aside summoning order of the Magistrate dated 6.5.2008, it was not open to the learned Magistrate to have passed the subsequent order in complete defiance of the order of learned Additional Sessions Judge. 16. Here it shall be apt to reproduce the reasons recorded by the then learned Additional Sessions Judge for setting aside the order passed by the learned Magistrate on 6.5.2008:- “9. No doubt, even if the police report states that no case was made out, still the Magistrate can take cognizance and issue process. But before resorting to the said action, the Ld. Magistrate will have to pass a speaking order holding that the findings of the inquiry conducted by the police were incorrect and not worth any credence. As is the present case, the Ld. Magistrate could have either suo-motu passed a reasoned order differing with the report of the police or allowed the protest preferred by the complainant. Moreso, the allegations in the complaint and the testimony of two witnesses were already on record before the Ld. Magistrate. After assessing the merits of the two conflicting premises the Ld. Magistrate could have either suo-motu passed a reasoned order differing with the report of the police or allowed the protest preferred by the complainant. Moreso, the allegations in the complaint and the testimony of two witnesses were already on record before the Ld. Magistrate. After assessing the merits of the two conflicting premises the Ld. Magistrate had to come to a specific finding either relying on the inquiry report or rejecting it before proceeding any further. The Ld. Magistrate could not have read both simultaneously. Only after having brushed aside the findings of the inquiry, the Ld. Magistrate could have summoned the other witnesses of the complainant. To this limited extent, the Ld. Court below has failed to exercise discretion vested in him under law.” 17. It is settled law that there is no legal requirement imposed on a Magistrate for passing a detailed and speaking order while issuing process. As a matter of fact at the stage of issuing process to the accused, the Magistrate is not required to record any reasons. (Ref: Kanti Bhadra Shah vs. State of W.B. (2000) 1 SCC 722 , U.P. Pollution Control Board vs. Mohan Meakins Ltd. (2000) 3 SCC 745 , Chief Controller of Imports & Exports vs. Roshanlal Agarwal (2003) 4 SCC 139 and Bhushan Kumar vs. State (NCT of Delhi) (2012) 5 SCC 424 . 18. But the question which arises for determination is as to whether the Magistrate while differing with the report filed by the Investigating Agency is required to record reasons while issuing process. This precise question has been dealt with in detail in Nupur Talwar vs. Central Bureau of Investigation and another (2012) 11 SCC 465 wherein it has been categorically held that where the Investigating Agency had submitted a closure report, it was only appropriate though no imperative for the Magistrate to record reasons for differing with the prayer made in the closure report. But at the same time, it was also emphasized that an order issuing process cannot be vitiated merely because of absence of reasons. 19. The Code of Criminal Procedure expressly delineates irregularities in procedure which would vitiate proceedings. Section 461 thereof, lists irregularities which could lead to annulment of proceedings. Section 461 aforesaid is extracted hereinunder: “461. But at the same time, it was also emphasized that an order issuing process cannot be vitiated merely because of absence of reasons. 19. The Code of Criminal Procedure expressly delineates irregularities in procedure which would vitiate proceedings. Section 461 thereof, lists irregularities which could lead to annulment of proceedings. Section 461 aforesaid is extracted hereinunder: “461. Irregularities which vitiate proceedings- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:- (a) attaches and sells property under section 83; (b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good behaviour; (f) cancels a bond to keep the peace; (g) makes an order for maintenance; (h) makes an order under section 133 as to a local nuisance; (i) prohibits, under section 143, the repetition or continuance of a public nuisance; (j) makes an order under Part C or Part D of Chapter X; (k) takes cognizance of an offence under clause (c) of sub- section (1) of section 190; (l) tries an offender; (m) tries an offender summarily; (n) passes a sentence, under section 325, on proceedings recorded by another Magistrate; (o) decides an appeal; (p) calls, under section 397, for proceedings; or (q) revises an order passed under section 446, his proceedings shall be void.” 20. In a situation as the one in hand, Section 465(1) of the Code, protects orders from errors, omissions or irregularities unless “a failure of justice” has been occasioned thereby. Most certainly an order delineating reasons cannot be faulted on the ground that it has occasioned failure of justice. [Ref: Nupur Talwar vs. Central Bureau of Investigation and another (supra) ]. 21. In view of the aforesaid detailed discussion, I find no illegality or infirmity with the orders of the learned courts below and the present petition being devoid of any merit is dismissed.