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2015 DIGILAW 1007 (HP)

Rajinder Guleria v. State of Himachal Pradesh

2015-08-03

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. The petitioner, by medium of this petition, has sought quashing of the proceedings pending in criminal case No. 114-2 of 13/08, titled as State of H.P. vrs. Rajinder Guleria, pending before the learned Chief Judicial Magistrate, Shimla. 2. ?Key facts? necessary for the adjudication of this petition are that earlier FIR was registered against the petitioner at Chirgaon on 11.10.2008. He was sent to police remand on 18.10.2008. He was released on bail on 24.10.2008. The FIR was also registered against the petitioner bearing No. 235 of 2008 dated 2.11.2008 at Police Station Dhalli, under Sections 419, 420, 467, 468, 471 and 109 IPC. The challan has been put up and charges have been framed against the petitioner on 20.5.2015. 3. Mr. H.C.Sharma, Advocate, has vehemently argued that no cause of action has arisen within the territorial jurisdiction of the State of H.P. and only Courts at Chandigarh had the jurisdiction. The cause of action has arisen in Himachal Pradesh since the promise to recruitment was made at Bhathan Kuffer, Shimla. According to the averments made in the FIR, the complainant has made payment of Rs. 1,00,000/- to the petitioner in Skylark Hotel, SCO 50 Sector-20, Chandigarh. Merely that the payment has been made at Chandigarh, it will not divest the trial Court to try the case, on the basis of FIR No. 235 of 2008 dated 2.11.2008. 4. Their lordships of the Hon'ble Supreme Court in the case of Amit Kapoor vrs. Ramesh Chander and another, reported in (2012) 9 SCC 460 , have culled out the following principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 Cr.P.C., as under: ?1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. 2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 3) Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 4) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 5) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 6) Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 7) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 8) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. 10) Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a =civil wrong' with no =element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 11) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 12) It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 13) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 14) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court has to consider the record and documents annexed with by the prosecution. 14) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 15) Where the charge-sheet, report under Section 173 (2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 16) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 17) These are all the principles which individually and preferably cumulatively (one or more) are to be taken into consideration.? 5. Their lordships of the Hon'ble Supreme Court in the case of Rajiv Thapar and others vrs. Madan Lal Kapoor, reported in (2013) 3 SCC 330 , have laid down the following steps required to be followed by the High Court while exercising power of quashment under Section 482 Cr.P.C.: ? (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.? 6. Their lordships of the Hon'ble Supreme Court in the case of C.P. Subhash vrs. Inspector of Police, Chennai and others, reported in (2013) 11 SCC 559 , have again reiterated that where complaint, prima facie makes out commission of offence, High Court in ordinary course should not invoke its powers to quash such proceedings, except in rare and compelling circumstances. It has been held as follows: ?7. The legal position regarding the exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances enumerated in the decision of this Court in State of Haryana and Ors. v Ch. Bhajan Lal and Others. 11. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. v Ch. Bhajan Lal and Others. 11. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant. The following passage from the complaint is relevant in this regard: ?…..Thus evidently these two sale deeds being produced by GWL i.e. 1551/1922 dated: 10th March 1922 and 1575/1922 dated 27th June 1922 are forged and fabricated and after making the false documents they were used as genuine to make fraudulent and illegal claim over our lands and go grab them. The representatives of GWL Properties with dishonest motive of grabbing our lands having indulged in committing forgery and fabrication of documents and with the aid of the forged documents are constantly attempting to criminally trespass into our lawful possessed lands and have been threatening and intimidating the staffs of our company in an illegal manner endangering life and damaging the land. The representatives of GWL properties also have been making false statements to the Government Revenue Authorities by producing these forged and fabricated documents with dishonest intention to enter their name in the Government Records. The present Director-in-charge and responsible for the affairs of the GWL Properties Limited is Mrs. V.M. Chhabria and all the above mentioned acts and commission of offences have been committed with the knowledge of the Directors of GWL Properties Ltd., and connivance for which they are liable. Mr. A.V.L. Ramprasad Varma representing M/s GWL Properties Limited has registered a civil suit in the District Court, Chengalpet using the forged documents. Mr. Satish, Manager (Legal), Mr. Shanmuga Sundram, Senior Manager, (Administration), have assisted in fabricating the forged documents and used the same to get patta from Tahsildar, Tambaram, thus cheating the Govt. Officials. Hence we request you to register the complaint and to investigate and take action in accordance with law as against the said company M/s GWL Property Limited represented by Mr. Satish, Manager (Legal) Mr. Officials. Hence we request you to register the complaint and to investigate and take action in accordance with law as against the said company M/s GWL Property Limited represented by Mr. Satish, Manager (Legal) Mr. Shanmudga Sundaram, Senior Manager (Administration), A.V.L. Ramprasad Varma, Directors, and their accomplice who have connived and indulged in fabricating and forging documents for the purpose of illegally grabbing our lands and for all other offences committed by them.? 7. Consequently, there is no merit in this petition, the same is dismissed.