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2018 DIGILAW 230 (JK)

Omkar Singh v. State

2018-04-18

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. This petition under section 561-A Cr.P.C. seeks quashing of FIR No. 88/2014 of Police Station, Rehamble (Udhampur) registered against them under sections 458, 336, 427 & 147 RPC on a report lodged on 30.05.2014 by respondent No. 2, Parshotam Singh (hereinafter to be referred as the informant). 2. It is alleged by the informant that on 29.05.2014 at 12 in the night, when he and his family members were sleeping in their house, the petitioner accompanied with 4-5 others started pelting stones and bottles at his house with a common intention of killing him and exhorted him to come out of the house and they will kill him. As he did not open the door of his house the petitioners and the persons accompanying them broke the windowpanes of the verandah of his house, entered the bathroom and broke the washbasin, tub and other material. On his raising alarm, some persons reached on spot, when the petitioners ran away, otherwise there was possibility of the petitioners having caused harm to his life and that of his wife. 3. Heard learned counsel for the parties. 4. Learned counsel for the petitioners, Mr. Bhanu Partap Singh Salathia, Advocate, submitted that petitioners have been falsely implicated and lodging of the FIR is a sequel to filing of a civil suit by the petitioners against the informant. Referring to the annexures to this writ petition, learned counsel explained that on 29.04.2014, petitioner No.1 filed a suit against the informant in the court of Sub-Judge, Udhampur seeking injunction restraining the informant from raising construction of shop in the land of the petitioners comprised in Khasra No. 615 measuring 2 marlas, situate at village, Muttal. On the same day, learned court passed order issuing ad interim injunction restraining the informant from interfering in any manner and raising any construction in the suit land and posted the case for 03.05.2014. Notice of the suit was issued to the informant and the process server visited the house of informant on 30.04.2014. As the informant was not found present at his house so the process server conveyed the direction issued by the court to him through lambardar and chowkidar of the village. Informant did not appear before the court on 03.05.2014 in spite of the knowledge of the notice of the court and the case was adjourned to 22.05.2014. As the informant was not found present at his house so the process server conveyed the direction issued by the court to him through lambardar and chowkidar of the village. Informant did not appear before the court on 03.05.2014 in spite of the knowledge of the notice of the court and the case was adjourned to 22.05.2014. The informant appeared before the court on 22.05.2014, but in spite of service of notice dated 29.04.2014 on him, he did not stop the construction work. On the same day, petitioner No.1 filed application before the court seeking implementation of order dated 29.04.2014 through the police. The informant, however, intentionally put slab on the shop in disobedience of the order passed by the court on 29.04.2014 in the night intervening 29th and 30th May. Petitioner No.1 filed contempt application (Annexure C) in the court on 29.05.2014 in which notice was issued to the informant and the next date was fixed for 31.05.2014. On 31.05.2014, court issued bailable warrants against the informant and adjourned hearing in the case to 07.06.2014. On 29.05.2015, informant, however, lodged impugned FIR against the petitioners which is false, concocted and actuated with mala fide to wriggle out of the liability from contempt of court and to pressurize the petitioner. 5. Quashing of the impugned FIR is sought also on the grounds that allegations leveled by the informant are outcome of well-planned conspiracy to wreck vengeance upon the petitioner as they did not allow the informant to use their property for his vested interest. 6. Informant has opposed quashing of the FIR. 7. Learned counsel for the informant, Mr. R.K.S. Thakur, argued that pendency of a civil litigation between the parties by itself is not a ground for quashing the FIR or criminal proceedings if commission of an offence by either of the parties during that civil dispute is prima facie made out. Learned counsel submitted that offence of house trespass and mischief was committed by the petitioner and their accomplice, who were about 4-5 in numbers so criminal action cannot be truncated merely because of the civil dispute and litigation between the parties. Learned counsel argued also that the documents relating to the pendency of civil suit and the orders passed therein cannot be relied upon by this court at this stage. Learned counsel argued also that the documents relating to the pendency of civil suit and the orders passed therein cannot be relied upon by this court at this stage. Learned counsel relied upon the Supreme Court judgments in Mahesh Chaudhary v. State of Rajashtan and another, (2009) 4 SCC 439 and Mosiruddin Munshi v. Siraj and another, 2014 (14) SCC 29 . 8. In Mahesh Chaudhary’s case, the Supreme Court has held as under: “12. It is also well settled that save and except in very exceptional circumstances, the Court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or the complaint petition fulfills the ingredients of the offences alleged against the accused.” 9. In Mosiruddin Munshi’s case, the Supreme Court in regard to exercise of jurisdiction under section 561-A Cr.P.C. (section 482 Central Cr.P.C.) has referred to R. Kalyani’s case as under: “5. The legal position with regard to exercise of jurisdiction by the High Court for quashing the First Information Report is now well settled. It is not necessary for us to delve deep there into as the proposition of law have been stated by this Court in R. Kalyani v. Janak C. Mehta (2009) 1 SCC 516 : (2009 AIR SCW 1836) in the following terms: “15. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” 10. Earlier, the Supreme Court in the landmark judgment in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 , has cataloged the categories of cases by way of illustration, where power under section 561-A Cr.P.C. (section 482 Central Cr.P.C) can be used either to prevent the abuse of process of Court or to secure the ends of justice. These are: “108……… 1. 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. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code. 3. 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. 4. Where, the allegations in the FIR do not constitute a cognizance 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 S. 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and 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. 6. 5. Where the allegations made in the FIR or complaint are so absurd and 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. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fides 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”. 11. In this case, the occurrence is alleged to have taken place in the night intervening 29th and 30th May, 2014, the impugned FIR was lodged by the informant on 30.05.2014 at 12.45 PM. Accusation of the informant against the petitioners, briefly reiterated, is that they attacked the informant’s house, pelted stones and bottles on the house and trespassed into and ransacked the verandah and a bathroom of the house, breaking windowpanes, washbasin and tub etc. 12. Case set by the petitioners, on the other hand, is that the informant continued with unauthorized construction on the land of petitioner No.1 in violation of the interim order passed by the civil court on 29.04.2014 inasmuch as he laid slab of the roof of the shop in the night intervening 29th and 30th, May, 2014. It is important to note that in his objections to this petition, the informant has admitted that he had laid slab on the shop on 29.05.2014 and contextual stand taken by him is that he had no knowledge about the institution of the suit by petitioner No.1 till 31.05.2014 when summon was served on him. In this regard, petitioner’s counsel in the course of hearing on 07.03.2018 produced copies of the interim orders passed by the civil court in the suit filed by petitioner No.1 inter alia on 29.04.2013, 03.05.2013 and 22.05.2013. These orders on perusal would show that the informant (Parshotam) had appeared before the court in person on 22.05.2014 and had sought time for filing his written statement. These orders on perusal would show that the informant (Parshotam) had appeared before the court in person on 22.05.2014 and had sought time for filing his written statement. It is, thus, clear and indisputable that the informant appeared before the court in the civil suit filed by petitioner No.1 on 22.05.2014 and has falsely stated in his objections, which are supported with his affidavit dated 08.05.2017 that he had no knowledge about the institution of the civil suit till 31.05.2014. 13. Once it has been found that the informant appeared before the court in the suit filed by petitioner No.1 on 22.05.2014, it can be safely inferred that he was aware of the interim direction issued by the court restraining him inter alia from raising any construction on the suit land but he continued with raising the construction and admittedly laid slab on the shop ignoring the interim direction issued by the court. 14. The question of quashing the FIR is to be looked into in backdrop of aforementioned factual scenario and the false stand taken by the informant relating to his knowledge about pendency of the suit in the civil court. One of the factors relevant for exercising power under section 561-A Cr.P.C for quashing the FIR is whether the allegations in the FIR disclose or do not disclose commission of a cognizable offence justifying investigation but another factor, which is equally important, is where criminal proceeding is manifestly attended with mala fides, and/or have been instituted with an ulterior motive of wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Parties were involved in a dispute in regard to the construction being raised by the informant on a piece of land and the informant continued with the said construction in violation of the court order whereby he was restrained from raising the construction inasmuch as he admittedly laid slab on the said shop. Lodging of the FIR about the incident said to have taken place on the day when illegal laying of slab was being carried out by the informant, manifest a mala fide intention on the part of the informant and allowing investigation in such a case would not be justified and will cause miscarriage of justice. 15. Lodging of the FIR about the incident said to have taken place on the day when illegal laying of slab was being carried out by the informant, manifest a mala fide intention on the part of the informant and allowing investigation in such a case would not be justified and will cause miscarriage of justice. 15. Viewed thus, this petition has merit and is allowed and the impugned FIR No. 88/2014 of Police Station, Rehamble is quashed.