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Himachal Pradesh High Court · body

2018 DIGILAW 848 (HP)

Sher Singh v. State of H. P.

2018-05-08

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 to quash FIR No. 245 of 2007 dated 4.10.2007, registered at PS Chamba, District Chamba, HP, under Sections 376 and 452 of IPC and consequent criminal proceedings registered as Cr.MA No. 462-2013, pending in the Court of learned Chief Judicial Magistrate, Chamba, H.P. 2. Briefly stated facts as emerge from the record are that on 4.10.2007, aforesaid FIR came to be lodged against the petitioner (herein after referred to as the accused) at the behest of respondent No.2 (hereinafter referred to as the prosecutrix), who alleged that on 26.9.2007, accused taking advantage of her loneliness, sexually assaulted her against her wishes in her house. Though, alleged incident occurred on 26.9.2007, but aforesaid FIR came to be lodged after eight days i.e. 4.10.2007. On 26.9.2007, when alleged incident took place, prosecutrix consumed poison, as a consequence of which, she was admitted in hospital at Chamba, where she remained admitted for two days. There is nothing on record from where, it can be inferred that during that period, when she remained admitted in hospital, she made any statement to the police with regard to forcible sexual assault committed upon her on 26.9.2007 by the accused. Subsequently, police on the basis of FIR, which admittedly came to be lodged after eight days of alleged incident, started investigation and came to conclusion that no case is made out against the accused. After completion of investigation, police presented cancellation report under Section 173 (2) CrPC, in the Court of learned CJM, Chamba, District Chamba, H.P (Annexure P-1), who having received cancellation report, issued notice to the prosecutrix, who in turn got her statement recorded on 25.7.2013, stating therein that she is satisfied with police investigation and has no objection, in case FIR No. 245 of 2007, registered under Sections 376 and 452 of IPC, is ordered to be cancelled. 3. Careful perusal of statement having been made by the prosecutrix (Annexure P-2) clearly suggests that aforesaid statement was recorded by the Chief Judicial Magistrate, Chamba, who after having read over and explained the same to the prosecutrix, put signature on the same. Subsequently, on 17.10.2014, learned court below rejected the cancellation report submitted by the Investigating Agency and directed it to file proper challan along with list of witnesses. Subsequently, on 17.10.2014, learned court below rejected the cancellation report submitted by the Investigating Agency and directed it to file proper challan along with list of witnesses. Pursuant to aforesaid directions contained in order dated 17.10.2014, challan came to be presented in the Court of learned CJM, Chamba, District Chamba, thereafter accused put in appearance before the learned CJM on 31.12.2016. Subsequently, on 13.2.2017, instant petition came to be filed by the accused in this Court, seeking therein quashment of FIR referred herein above, as well as consequent proceedings pending in the Court of learned CJM Chamba. 4. Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Mr. Divya Raj Singh, Advocate, representing the petitioner, vehemently argued that order dated 17.10.2014, passed by the learned CJM, is not sustainable in the eye of law as the same is not based upon correct appreciation of material made available on record by the Investigating Agency. While inviting attention of this Court to the para-5 of the order dated 17.10.2014, Mr. Thakur, contended that statement of prosecutrix was recorded on 25.7.2013, by learned CJM herself, wherein prosecutrix had categorically stated that she is/was satisfied with the police investigation and has no objection, if the aforesaid case registered against the accused under Sections 376 and 452 of IPC, is ordered to be cancelled. Mr. Thakur, further contended that since prosecutrix was 19 years’ old at the time of recording her statement, it is not understood what prompted the learned CJM to pass order dated 17.10.2014, because there is nothing on record, from where it can be inferred that after 25.7.2013, prosecutrix had made any prayer/request to the learned CJM to get the matter reinvestigated from the Investigating Agency. Mr. Thakur, while making this Court to travel through the order dated 17.10.2014, also made an endeavor to persuade this Court to agree with his contention that no cogent and convincing reasons have been assigned by the learned CJM while disagreeing with the cancellation report submitted by the Investigating Agency, which is based upon proper appreciation of material collected on record by the Investigating Agency. While referring to para-7 of the order passed by the learned CJM, Mr. While referring to para-7 of the order passed by the learned CJM, Mr. Thakur, contended that bare perusal of same suggests that learned CJM while arriving at conclusion that case is made out against the accused under Sections 376 and 452 of IPC, wrongly, injected her own thesis causing prejudice to the accused, who was admittedly not present at the time of recording of order dated 17.10.2014. Lastly, Mr. Thakur, with a view to justify the cancellation report submitted by the Investigating Agency, made this Court to travel through the evidence collected on record by the Investigating Agency, to demonstrate that no much reliance could be placed upon the version put forth by the prosecutrix. Mr. Thakur, specifically invited attention of this Court to the medical evidence adduced on record by the Investigating Agency, to suggest that no definite evidence has come to fore with regard to sexual assault, if any, committed by the accused on the alleged date of incident. He further contended that apart from above, none of other witnesses corroborated the version put forth by the prosecutrix and as such, Investigating Officer rightly arrived at conclusion that no triable case is made out against the accused. 5. Per contra, Mr. Naveen K. Bhardwaj, learned counsel representing respondent No.2, while refuting the aforesaid submissions having been made by the learned Senior counsel supported the impugned order passed by the court below and contended that there is no illegality and infirmity in the same, rather learned CJM having perused material available on record rightly came to conclusion that case is made out against the accused under Sections 376 and 452 of IPC. Mr. Bhardwaj, further contended that since prosecutrix was unable to understand the consequence of putting the signature on the statement alleged to have been made by her before the learned court below, no much advantage can be taken by the accused on that ground. He further stated that police forcibly got her statement recorded before the learned CJM and as such, it is of no consequence. He further contended that there is ample material available on record suggestive of the fact that on the date of alleged incident, accused committed offence punishable under Sections 376 and 452 of IPC and as such, there was no scope left for Investigating Agency to conclude that no case is made out against the accused. Lastly, Mr. He further contended that there is ample material available on record suggestive of the fact that on the date of alleged incident, accused committed offence punishable under Sections 376 and 452 of IPC and as such, there was no scope left for Investigating Agency to conclude that no case is made out against the accused. Lastly, Mr. Bhardwaj, contended that direction to Investigating Agency to file challan was issued on 17.10.2014, but present petitioner (accused) being aggrieved with the same approached this Court, after an inordinate delay and as such, present petition deserves to be dismissed on this ground only. 6. I have heard learned counsel for the parties as well as gone through the records of the case. 7. Before ascertaining the correctness of rival submissions made by the learned counsel representing the parties vis-à-vis prayer made in the instant petition to quash the FIR as well as consequent proceedings thereto, 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. 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 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 Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, 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 therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.” 10. Having carefully perused 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 this Court shall proceed to examine/consider the prayer made in the instant petition vis-à-vis factual matrix of the case. The details in respect of each aspect of the matter arising out of FIR No. 245/2007 dated 4.10.2007, registered at PS Chamba, have been examined in extensive in foregoing paragraphs. Now this Court would proceed to determine whether steps noticed in the judgment extracted herein above, can be stated to have been satisfied or not? 12. The details in respect of each aspect of the matter arising out of FIR No. 245/2007 dated 4.10.2007, registered at PS Chamba, have been examined in extensive in foregoing paragraphs. Now this Court would proceed to determine whether steps noticed in the judgment extracted herein above, can be stated to have been satisfied or not? 12. True, it is that learned CJM vide order dated 17.10.2014 directed the Investigating Agency to file challan in the Court, but record as made available to this Court, clearly suggests that pursuant to notice issued to the accused, he put in appearance before the court below for the first time on 31.12.2016, whereafter on 13.2.2017, present petition came to be filed before this Court and as such, there is no force in the argument of learned counsel representing respondent No.2 –prosecutrix that there is an inordinate delay in maintaining the present petition and as such, same is rejected outrightly. 13. Another contention put forth by Mr. Bhardwaj that police forcibly made prosecutrix to sign the statement recorded before the learned CJM on 25.7.2013, is also without any merit because bare perusal of Annexure P-2, clearly suggests that statement of prosecutrix, wherein she stated that she is satisfied with the police investigation and has no objection in case FIR No.245/2007 under Sections 376 and 452 of IPC is ordered to be cancelled, was recorded before the learned CJM, rather under the hand writing of learned CJM Chamba. Since aforesaid statement Annexure P-2, came to be recorded before CJM Chamba, version put forth by the prosecutrix that she was asked by the police to put signatures on certain papers, cannot be accepted, rather this Court has reason to presume that CJM Chamba, while recording statement dated 25.7.2013, must have made prosecutrix understand the consequence of her giving statement as recorded in the order. It is not the case of the prosecutrix that learned CJM of her own, without taking her consent, recorded statement dated 25.7.2013. 14. Having perused order dated 17.10.2014, this Court finds that though there is mention with regard to recording of statement made by the prosecutrix on 25.7.2013, but no reason or explanation has been rendered on record by the learned CJM to ignore the aforesaid statement of prosecutrix, who admittedly was of 19 years age at the time of recording of her statement. If learned CJM after having recorded the statement of prosecutrix on 25.7.2013, was not satisfied or inclined to accept the version putforth by the prosecutrix, she could order then and there for re-investigation or presentation of challan in the Court of law. But it is not understood that why after more than a year, learned CJM of her own, proceeded to pass order dated 17.10.2014. 15. True, it is that it is well within the domain of CJM or any trial Court to reject cancellation report, if any, presented by the Investigating Agency, but while doing so, it or any court, is /was required to assign cogent and convincing reasons to differ with the reasons recorded by the Investigating Agency while presenting cancellation report. Interestingly, in the case at hand, statement of prosecutrix dated 25.7.2013, was recorded by the same CJM, who subsequently, recorded order dated 17.10.2014, but while directing the Investigating Agency to present challan in the competent court of law, learned CJM has proceeded to inject her own knowledge/logics to arrive at a conclusion that case under Sections 376 and 452 of IPC is made out against the accused. At the cost of repetition, it may be re-iterated that CJM is not barred from rejecting the cancellation report submitted by the Investigating Agency, provided it is convinced and satisfied that investigation has been not carried out in fair and impartial manner and evidence collected on record, by Investigating Agency suggests prima facie case, if any, against the accused. But in the case at hand, this Court taking note of peculiar facts and circumstances of the case, finds considerable force in the contention of learned Senior counsel representing the petitioner that court below after having recorded statement dated 25.7.2013 had no occasion to pass order dated 17.10.2014, as has been noticed herein above. There is nothing on record that after 25th July, 2013, when complainant got her statement recorded to the effect that she is satisfied with the investigation carried out by the Investigating Agency and has no objection in case FIR No. 245/2007 under Sections 376 and 452 of IPC is ordered to be cancelled, complaint or communication, if any, was received by the learned CJM, from the complainant’s side alleging therein that she was compelled by the Investigating Agency to get her statement recorded before the learned Chief Judicial Magistrate on 25.7.2013. Though, in the earlier part of the judgment, argument advanced in this regard, by the learned counsel representing respondent No.2 has been rejected by this Court, but otherwise also, this Court has no reason to doubt the correctness of statement recorded on 25.7.2013, especially when it came to be recorded in the presence of CJM, rather in her own handwriting as is evident from Annexure P-2. 16. Leaving everything aside, this Court after having carefully perused order dated 17.10.2014, vis-à-vis material collected on record by the prosecution, is in total agreement with the learned Senior counsel that learned Chief Judicial Magistrate, while arriving at conclusion drawn in order dated 17.10.2014, failed to assign cogent and convincing reasons to differ with the finding recorded by the Investigating Agency, rather she injected her own knowledge and logics with regard to the alleged incident. Though, this Court having carefully perused Annexures P2 and P3 finds no reason to elaborate the matter any further, but on the persuasion of learned counsel representing respondent No.2, also perused the material adduced on record by the Investigating Agency, perusal whereof certainly suggests that no much reliance can be placed upon the version put forth by the prosecutrix or other witnesses. Alleged incident occurred on 26.9.2007, whereafter prosecutrix allegedly consumed poison and remained hospitalized for two days, but interestingly, there is no evidence available on record suggestive of the fact that during this period, prosecutrix made any complaint against the petitioner with regard to the alleged incident happened on 26.9.2007, rather she chose to keep mum for almost 8 days. FIR came to be lodged on 4.10.2007 and there is no plausible explanation rendered on record by the prosecutrix with regard to the delay, save and except that she being girl hesitated from narrating the alleged incident to her parents or other family members. Otherwise also, if the version put forth by the sister-in-law namely Rekha, is perused vis-à-vis statement of prosecutrix, it completely falsifies the story narrated by the prosecutrix. As per statement of prosecutrix, accused taking advantage of her loneliness unauthorisedly entered her house and sexually assaulted her against her wishes. She further stated that though, she made an attempt to raise hue and cry, but since her mouth was gagged, her voice could not be heard by anyone. As per statement of prosecutrix, accused taking advantage of her loneliness unauthorisedly entered her house and sexually assaulted her against her wishes. She further stated that though, she made an attempt to raise hue and cry, but since her mouth was gagged, her voice could not be heard by anyone. If the statement of Rekha (sister-in law of the prosecutrix) is read and examined juxtaposing statement of prosecutrix, it is in contradiction to the statement of prosecutrix. Rekha in her statement stated that when she came back to the house from fields, she saw accused coming out of the room of the prosecutrix, who on inquiry disclosed that accused had come for drinking water. Rekha is/was first person to meet prosecutrix after alleged incident, but she nowhere states that immediately after the alleged incident, prosecutrix disclosed to her that she has been sexually assaulted by the accused, rather she has categorically stated that on inquiry she was informed by the prosecutrix that accused had come to have water. It also emerges from the material available on record that the petitioner-accused was well known to the family of the prosecutrix, rather prosecutrix in her statement given to police has categorically stated that she has cordial relations with the wife of the accused. Medical evidence adduced on record, nowhere corroborates the version put forth by the prosecutrix, rather medical evidence nowhere suggests that prosecutrix was subjected to sexual intercourse. There is no mention, if any, with regard to any injury suffered by the prosecutrix while resisting sexual assault, if any, allegedly committed by the accused. No doubt, in medical evidence, there is mention of blood stains on the clothing of the prosecutrix, but it has been categorically mentioned in the report that blood stains are on account of menstruation. 17. Having carefully gone through the evidence available on record, more particularly, statement of prosecutrix dated 25.7.2013, recorded before the learned CJM, this Court is of the view that learned CJM had no occasion to direct Investigating Agency to present challan in the competent Court of law, rather on the basis of material available on record, it ought to have accepted the cancellation report submitted by the Investigating Agency. 18. 18. Based on holistic consideration of facts and circumstances taken note herein above, this Court is convinced and satisfied that all the steps delineated by the Hon’ble Apex Court in Rajiv Thaper’s case (supra), which has been further reiterated in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 , stands satisfied. Otherwise also, this Court having perused material available on record, has no hesitation to conclude that chances of conviction, if any, on the basis of material adduced on record by the Investigating Agency, are very remote and bleak and in case, order dated 17.10.2014, is allowed to sustain, accused shall be unnecessarily put to the ordeals of protracted trial, which ultimately may lead to acquittal of the accused. 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. 247 of 2007 dated 4.10.2007, registered at PS Chamba, District Chamba, HP, under Sections 376 and 452 of IPC and consequent criminal proceedings, are quashed and set-aside. Accordingly, present petition is disposed of, so also pending applications, if any.