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Himachal Pradesh High Court · body

2018 DIGILAW 1763 (HP)

Janam Singh v. State of H. P.

2018-10-01

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Section 482 Cr.PC, prayer has been made on behalf of the petitioner for quashing of orders dated 10.12.2014 and 4.7.2017, passed by the learned Chief Judicial Magistrate, Chamba, H.P., in FIR No. 37 of 2011, titled State of H.P. v. Janam Singh, whereby direction has been issued to issue non-bailable warrants to the petitioner for commission of offences punishable under Sections 452, 323, 427, 376 and 511 of IPC. Vide aforesaid order, court below also directed the Investigating Officer to file proper challan. 2. Facts, as emerge from the record are that aforesaid FIR came to be lodged against the petitioner at the behest of the complainant-prosecutrix, who vide written complaint made to SDM Pangi, alleged that on 12.12.2011, at about 9:15 AM, petitioner-accused namely Janam Singh, came to her house and taking undue advantage of her loneliness, tried to molest her and also slapped her. Complainant-prosecutrix also reported in her complaint that with great difficulty, she was able to rescue herself from the clutches of the accused, but accused while leaving the spot, extended threats to kill her by proclaiming that he is a person of BJP. Aforesaid written complaint subsequently came to be forwarded to SHO Pangi, on the basis of which, FIR, as taken note herein above, came to be registered at P.S. Pangi, against the accused for having committed offences punishable under Sections 452, 427, 376 and 511 of IPC. During investigation, police found the accused to have committed offence only under Section 323 IPC, which is non-cognizable and accordingly, prepared cancellation report qua the other offences under Sections 452, 427, 376 and 511 of IPC and submitted the same before the competent court of law for acceptance. 3. Record further reveals that learned CJM Chamba, after having received cancellation report, issued notice to the complainant, who filed objections to the cancellation report on 18.8.2012. Learned CJM Chamba, having perused objections filed by the complainant sent the case back to SHO P.S. Pangi, for further investigation and called for the report on 21.11.2013. SHO P.S. Pangi, submitted report on 24.10.2014, reiterating that nothing has emerged against the accused as far as commission of offence under Sections 452, 427, 376 and 511 of IPC is concerned. Learned CJM Chamba, having perused objections filed by the complainant sent the case back to SHO P.S. Pangi, for further investigation and called for the report on 21.11.2013. SHO P.S. Pangi, submitted report on 24.10.2014, reiterating that nothing has emerged against the accused as far as commission of offence under Sections 452, 427, 376 and 511 of IPC is concerned. Court below having recorded the statement of complainant, declined to accept the cancellation report submitted by the police and directly took cognizance against the accused for having commission of offence punishable under Sections 452, 323, 427, 376 and 511 of IPC and issued non-bailable warrants against the accused. Vide aforesaid order, learned court below also directed the Investigating Officer to file the proper challan. In the aforesaid background, petitioner-accused has approached this Court in the instant proceedings praying therein for quashment of FIR as well as consequent proceedings pending before the competent court of law. 4. I have heard the learned counsel for the parties and gone through the record of the case. 5. At this stage, it may be noticed that prior to proceedings at hand, accused had approached this Court earlier by way of Cr.MMO No. 345 of 2015, praying therein to quash the FIR as well as consequent proceedings since nothing concrete had emerged against the accused, however, this Court, having taken note of the reply filed by the respondent-State, wherein it was categorically stated that police has already filed cancellation report in the FIR on the basis of statement of witnesses as well as evidence collected by the Investigating Agency, disposed of the aforesaid petition vide judgment dated 26.5.2017, with a direction to the court below to take final decision on the cancellation report having been filed by the police in FIR supra. 6. On 4.7.2017, CJM, Chamba, after having received aforesaid order passed by this Court in Cr.MMO No. 345 of 2015, passed fresh order stating therein that since his predecessor has already declined to accept the cancellation report vide order dated 10.12.2014, he has no occasion to pass fresh order upon the same cancellation report in terms of order dated 26.5.2017, passed by this Court in Cr.MMO No. 345 of 2015. Careful perusal of material available on record, reveals that that prior to passing of order dated 26.5.2017, passed by this Court in Cr.MMO No. 345 of 2015, learned court below had already passed order dated 10.12.2014, declining therein request of Investigating Officer to accept the cancellation report. 7. Before adverting to the factual matrix of the case, this Court deems it necessary to elaborate upon scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 of Cr.PC. Hon’ble Apex Court in judgment titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has laid down several principles, which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. Before pronouncement of aforesaid judgment rendered by the Hon’ble Apex Court, a three-Judge Bench of Hon’ble Court in case titled State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699 , held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Relevent para is being reproduced herein below:- “7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 8. Subsequently, Hon’ble Apex Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699 , has elaborately considered the scope and ambit of Section 482 Cr.P.C. Subsequently, Hon’ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr., while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to quashed. The Hon’ble Apex Court has further held that the saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon’ble Apex Court taking note of seven categories, where power can be exercised under Section 482 of the Cr.PC, as enumerated in Bhajan Lal’s case, i.e. 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, quashed the proceedings 9. Hon’ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 , while drawing strength from its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330 , has reiterated that high Court has inherent power under Section 482 Cr.PC., to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. While invoking its inherent jurisdiction under Section 482 of the Cr.P.C., the High Court has to be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 , the Hon’ble Apex Court has held as under:- “22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”) has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330 , paras 29-30) 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- 30.1 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? 30.2 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. 30.3 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? 30.4 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? 30.5 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 there from) specially when, it is clear that the same would not conclude in the conviction of the accused.” 10. From the bare perusal of aforesaid exposition of law, it is quite apparent that exercising its inherent power under Section 482 of Cr.PC., High Courts can proceed to quash the proceedings if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the law. 11. Now in the light of the aforesaid exposition of law, this Court shall make an endeavor to examine the material available on record vis-à-vis impugned order to arrive at conclusion that whether facts of the case warrant exercise of power by this court under Section 482 Cr.PC for quashing of FIR or not. 12. Having heard learned counsel for the parties and perused impugned order dated 10.12.2014, whereby the learned court below while rejecting the cancellation report filed on behalf of the Investigating Agency, issued non-bailable warrants to the accused for having committed offences Sections 452, 323, 427, 376 and 511 of IPC, this Court is persuaded to agree with the contention of Mr. Having heard learned counsel for the parties and perused impugned order dated 10.12.2014, whereby the learned court below while rejecting the cancellation report filed on behalf of the Investigating Agency, issued non-bailable warrants to the accused for having committed offences Sections 452, 323, 427, 376 and 511 of IPC, this Court is persuaded to agree with the contention of Mr. T.S. Chauhan, learned counsel representing the petitioner that court below while passing order dated 10.12.2014, not only exceeded its jurisdiction, rather caused great prejudice to the accused by issuing non-bailable warrants to the accused. 13. The question whether court below while passing impugned order had actually evaluated the material placed before it by Investigating Officer vis-à-vis objections filed by the complainant-prosecutrix to the cancellation report, shall be considered and dealt with in the later part of the judgment. At this stage, if even if it is presumed that learned court below having perused objections filed by the complainant-prosecutrix to the cancellation report was satisfied that police did not carry out investigation in proper manner and caused prejudice to the prosecutrix, definitely, in that eventuality, court below while rejecting the cancelation report had definitely no authority or jurisdiction to issue non-bailable warrants to the accused. Rather court below in the given circumstances was under obligation to issue notice to the accused specifying therein that why proceedings for having committed offences under aforesaid provisions of law be not initiated against him. Otherwise also, after the issuance of notice and having supplied the copies of challan/cancellation report in terms of Section 207 Cr.PC, court below having taken note of offences allegedly committed by the accused, under Sections 452, 323, 427, 376 and 511 of IPC, ought to have committed the matter under Section 209 Cr.PC, to the learned Sessions Judge. But in the case at hand, as is quite apparent from the impugned order dated 10.12.2014, learned court below, while declining the cancellation report, directly issued non-bailable warrants to the accused for having committed offences punishable under Sections 452, 323, 427, 376 and 511 of IPC, which ought not to have been done by the court below in any eventuality that too without affording opportunity of being heard at that stage to the accused. 14. 14. In the case at hand, court below committed another illegality by directing the Investigating Officer to file proper challan, having received cancellation report, court had two options; first, to issue notice to the complainant inviting objections, if any; second, after having received objections, either to accept the cancellation report or reject the same but after having evaluated the material adduced on record by the Investigating Officer in support of cancellation report. But in the instant case, this Court having carefully gone through the impugned order dated 10.12.2014, has no hesitation to conclude that there is no evaluation, if any, of material placed on record by the Investigating Agency along with cancellation report by the court below while declining the request for accepting the cancellation report. Interestingly, court below while passing order dated 10.12.2014, only stated that Investigating Officer has given his final report as if he was adjudicating upon the present case. Needless to say, as per Section 173 (2) Cr.PC, police is only required to submit report on the basis of material available on record so as to find whether any offence has been committed or not. There cannot be any quarrel with the finding/observation made by the court below in the impugned order that under Section 173 (2) Cr.PC, Investigating Officer is only to place on record material along with report and final decision, if any, with regard to acceptance/rejection of cancellation report is definitely to be taken by the court concerned. Having carefully perused cancellation report (Annexure P-1 at page 11) submitted by the Investigating Officer, this Court finds that court below erred in recording that Investigating Officer gave his final report concluding therein that no case is made out against the accused under Sections 452, 427, 376 and 511 of IPC. 15. Bare perusal of cancellation report reveals that Investigating Officer, after having recorded statement of witnesses, complainant-prosecutrix and perused other material, arrived at a conclusion that only case under Section 323 IPC is made out against the accused and no case is made out against other provisions of law i.e. Sections 452, 427, 376 and 511 of IPC. 15. Bare perusal of cancellation report reveals that Investigating Officer, after having recorded statement of witnesses, complainant-prosecutrix and perused other material, arrived at a conclusion that only case under Section 323 IPC is made out against the accused and no case is made out against other provisions of law i.e. Sections 452, 427, 376 and 511 of IPC. Investigating Officer in his report has nowhere stated that accused be acquitted of offences alleged to be committed by him under Sections 452, 323, 427, 376 and 511 of IPC, rather he while simply presenting the cancellation report in the competent court of law has stated that no case is made out against the accused under the aforesaid provisions of law. This Court has no hesitation to conclude that while passing order dated 10.12.2014, court below has failed to apply its mind and has not taken the trouble of analyzing/appreciating the material adduced on record by the Investigating Agency in support of cancellation report. 16. In normal circumstances, though this Court having taken note of aforesaid illegality committed by the court below, would have remanded the case back to the court below for passing fresh order, but taking note of the fact that matter is hanging fire since 2011, this Court deemed it proper to evaluate the material itself to arrive at a conclusion whether there is sufficient material, if any, available on record to proceed against the accused or not. This Court finds from the record that investigation was carried out by the Investigating Agency on two occasions, wherein repeatedly, it was found that accused had only given beatings to the complainant-prosecutrix and at no point of time, offence, if any, was committed by him under Sections 452, 323, 427, 376 and 511 of IPC and as such, this Court sees no reason to allow the further prosecution of the accused in terms of order dated 10.12.2014, which otherwise is illegal as has been discussed herein above. 17. Even respondent-State in para-2 of the reply filed before this Court has reiterated that petitioner was found to have committed offence punishable under Section 323 IPC and offences under Sections 452, 427, 376 & 511 of IPC have not been proved on the basis of statements of witnesses as well as evidence collected during the course of the investigation. Para 2 of the reply is reproduced herein below:- 2. Para 2 of the reply is reproduced herein below:- 2. That the contents of Para No.2 of the petition are admitted to the extent that petitioner was found to have committed offence punishable under Section 323 IPC and offences under section 452, 427, 376 & 511 of IPC has not been proved on the basis of statements of witnesses as well as evidences collected during the course of investigation. Thus, cancellation report was prepared and submitted in the Ld. Court of Chief Judicial magistrate Chamba.” It has also come in the investigation, which has been further disclosed to this Court by the respondent-State by way of reply, that during the investigation, it has come that there was a property dispute between the family of the petitioner and the complainant and on account of such dispute, FIR detailed herein above, came to be lodged against the accused at the behest of the complainant. 18. Reliance placed by the learned court below on the judgment passed by the Hon’ble Apex Court in Hardeep Singh V. State of Punjab AIR 2009 SC 483 , while passing impugned order, is wholly misplaced. In the aforesaid judgment, Hon’ble Apex Court, has held that report contemplated by Section 173 should contain the information required by the said provision. The Investigating Officer is not expected to record findings of fact nor to give clean chit by exercising power of a Court or judicial authority. As has been discussed herein above, there cannot be any quarrel with the aforesaid proposition of law, but as has been noticed herein above, since court below has not applied its mind, it has given erroneous finding that Investigating Officer while presenting the cancellation report has recorded finding of fact or has given clean chit to the accused, rather careful perusal of cancellation report filed by the Investigating Officer clearly suggests that he after having investigated the matter arrived at a conclusion that no case, if any, is made out against the accused under Sections 452, 323, 427, 376 and 511 of IPC and accordingly, presented cancellation report without expressing his opinion and decision in this regard was ultimately required to be taken by the court that too after evaluating the material placed on record by the Investigating Agency. 19. 19. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, present petition is allowed and FIR No. 37/11 dated 14.12.2011, registered at PS Pangi, District Chamba, HP, under Sections 452, 427, 376 and 511 of IPC and consequent criminal proceedings, are quashed and set-aside. Accordingly, present petition is disposed of, so also pending applications, if any.