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2018 DIGILAW 975 (JK)

Gopal Singh v. State of J&K

2018-12-14

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. These two Petitions have been filed for quashing of counter FIRs lodged against each other. 2. In CRMC No. 112/2014, the petitioner has sought quashing of FIR No. 61/2010 dated 15.04.2010 under Section 307, 452, 147 and 148 RPC of Police Station, Katra as well as the Challan pending before the Court of learned District & Sessions Judge, Reasi. 3. The petitioner has challenged the proceedings pending before the Court below on the ground that impugned FIR has been registered to counter the FIR No. 64/2010 registered at Police Station, Katra against the complainant/respondent Nos. 3 to 5. It is stated that the respondents along with their musclemen attacked the petitioner with the intention to kill and seriously injure him. It is stated that the impugned FIR registered against the petitioner is not tenable. The allegations in the FIR are so absurd and improbable that on the basis of which no prudent person can even reach to a just conclusion sufficient to proceed against the petitioner, who is a disabled person with 80% disability. 4. It is averred in the petition that the petitioner is a disabled person, who has 80% disability and cannot assault any one. That impugned FIR is bad in the eyes of law and the same has been lodged by the respondents with a mala-fide intention. It is further stated that Police without appreciating the fact that petitioner along with his family members immediately after the incident on 15.04.2010 approached the Police Station to lodge the FIR against the private respondents, but the official was hand in glove with private respondents and refused to register the FIR. The allegations as contained in the impugned FIR are far-away from truth, which is quite evident from the bare perusal of the impugned FIR. Accordingly, it has been prayed that the impugned FIR and challan pending before the Court below be quashed. 5. Similarly, in CRMC No. 235/2011, the petitioners have challenged the FIR No. 64/2010 dated 16.04.2010 under Sections 452, 323 and 506 RPC. In this petition, it has been averred that the petitioners are resident of Hansali, Katra Vaishno Devi, Tehsil and District, Reasi. 5. Similarly, in CRMC No. 235/2011, the petitioners have challenged the FIR No. 64/2010 dated 16.04.2010 under Sections 452, 323 and 506 RPC. In this petition, it has been averred that the petitioners are resident of Hansali, Katra Vaishno Devi, Tehsil and District, Reasi. That the petitioner No. 1 was owner in possession of a shop situated at Main Bazar, Katra, and he is running business of Dry Fruit; that the petitioner No. 2 is real brother of petitioner No. 1, whereas, petitioner No. 3 is father of petitioner Nos.1 and 2. That said shop was purchased by petitioner No. 1 from Varinder Singh, Raj Singh and Bhupinder Singh, all sons of Balwant Singh R/o Katra, by virtue of agreement to sell and irrevocable power of attorney in year 2007 and after the purchase of shop, the petitioner No. 1 along with father, are running the Dry Fruit Shop; that the husband of respondent No. 3. namely, Gopal Singh (petitioner in CRMC 112/2014) is relative of afore-named erstwhile owners of the shop, which has been purchased by petitioner No. 1. The husband of respondent No. 3 along with 8 to 10 persons on 15.04.2010 at about 11.00 a.m. came to the shop of petitioner No. 1 and started making attempts to dispossess the petitioner No. 1 from the Shop in question. At that time, petitioner Nos. 2 and 3 were also present. That initially there was verbal altercation between the petitioners and husband of respondent No. 3 and thereafter, the husband of respondent No. 3 together with around 8 to10 persons suddenly brought baseball bats, hockey Sticks and Dandas and attacked with an intention to kill them. That due to this scuffle, extensive and grievous injuries were inflicted to all the petitioners in presence of a huge crowd gathered there, due to which they were admitted to hospital. Thereafter, petitioner Nos.2 and 3 were referred to Amritsar for specialized treatment. It is contended that as a result of said incident, FIR No. 61/2010 dated 15.10.2010 under Sections 307, 452, 147, 148 and 149 RPC was registered against the husband of respondent No. 3, Gopal Singh, who remained in lockup for more than 15 days. The Police authority after completion of the investigation in the aforesaid FIR had filed challan before the competent Court. 6. The Police authority after completion of the investigation in the aforesaid FIR had filed challan before the competent Court. 6. The respondent No. 3 on the instructions and instigation of her husband has lodged FIR No. 64/2010 in the Police Station, Katra against the petitioners. The said FIR has been lodged on the order of Sub Judge, JMIC, Katra dated 16.04.2010 on a complaint filed by respondent No. 3 in terms of Section 156(3) Cr.P.C. Accordingly, the petitioners have challenged the said FIR on the ground that it is a counterblast to the initial FIR No. 61/2010 lodged by petitioners. 7. In CRMC No. 235/2011, objections stand filed by the official respondents, it has been stated that this petition is without any force of law and as such deserves to be dismissed out rightly. Even otherwise, the petition is not maintainable in view of the judgment of Hon'ble the Supreme Court in case, titled as Ch. Bhajan Lal vs. State of Haryana, AIR (1992) 604. It is stated that since prima facie case is made out against the petitioners, as such, the above said FIR came to be registered. It is submitted that once FIR is registered, it becomes an obligation on the part of the Investigating Agency to investigate the matter to its logical end and bring the real facts/truth before Court for further action in this regard, as such, the petitioners cannot seek quashing of FIR. That the case is still under investigation and the question whether the petitioners are involved in commission of the offence or not, is a question of fact, which can be agitated before the Trial Court once the challan is presented against them and there is no illegality in registration of the said FIR. That mere registration of FIR does not cause any prejudice to the petitioners because they can prove themselves innocent once challan is presented and in case, no case is made out then the proceedings can be dropped against them but for that the petitioners should wait for presentation of the challan before the trial court. It is further submitted that the petitioners instead of cooperating with the Police have unnecessarily dragged the answering respondents into litigation. 8. I have heard appearing counsel and gone through the files. 9. It is further submitted that the petitioners instead of cooperating with the Police have unnecessarily dragged the answering respondents into litigation. 8. I have heard appearing counsel and gone through the files. 9. From a bare perusal of documents annexed in the petition (CRMC No. 112/2014), it is evident that challan in FIR No. 61/2010 dated 15.04.2010 under Section 307, 452, 147 and 148 RPC of Police Station, Katra pending before the Principal Session Judge, Reasi, the Court below has already framed the charges against the petitioner and other accused on 16.09.2013 under Sections 307, 325, 147, 148, 149 and 452 RPC. All the pleas taken in this petition are pertaining to facts, which this court cannot consider in this petition. It is not the case of petitioner, that there is some legal bar created in any Act, which debars court to deal the matter. In view of above, CRMC No. 112/2014 is dismissed. Stay, if any, is vacated. 10. So far as documents annexed in CRMC No. 235/2011 are concerned, it is evident that the complainant, Mousami Devi wife of Gopal Singh, lodged a criminal complaint before the JMIC, Katra with the allegations that her husband is owner in possession of the land measuring 09 Marlas in Khasra No. 264 by virtue of relinquishment deed, which is duly registered by the Sub Registrar, Katra and that on the above said land, the husband of the complainant has constructed a house and two shops, one of the shop is rented to Anil and Ravi and in another shop, husband of complainant is doing business with his partner and that the mutation of the said land has been attested in favour of Gopal Singh; that on 15.04.2010 accused along with 4-5 unknown Goondas with a criminal intention trespassed the shop of complainant’s husband started beating them with lathies and tried to forcibly evict him from the said shops, that with the intervention of close friends and relatives of complainant’s husband, they could not succeed in their attempt. That the accused persons were unknown Goondas make threat to the husband of complainant that they will dispossess him from the shop and they will kill him and the entire family. That after the attempt on the part of accused, Police came on spot and closed the shop of complainant’s husband and took him to Police Station, Katra. That the accused persons were unknown Goondas make threat to the husband of complainant that they will dispossess him from the shop and they will kill him and the entire family. That after the attempt on the part of accused, Police came on spot and closed the shop of complainant’s husband and took him to Police Station, Katra. That the husband of complainant is still in Police Station, Katra and no action has been taken against accused. That the accused are strong persons and they have some political as well as criminal affiliation and Police Station, Katra is not interested in registering FIR against the accused persons. That Bhupinder Singh has also faced trial under Section 302 RPC and the husband of complainant is having apprehension that they may kill her husband. That complainant went to Police Station, Katra to register FIR against accused persons, however, the Police did not pay any heed to her request. 11. On this, JMIC Katra directed the concerned police to investigate the matter under section 156(3) Cr.P.C. On this FIR No. 64/2010 under section 452/323/506 RPC was registered and investigation was commenced. At the time of entertaining the petition on 10.10.2011, this court restrained the police from presenting the challan, but did not stay the investigation. So more than 7 years has passed and definitely investigation would have been completed. 12. The law with regard to quashing of FIR/complaint/challan is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ‘ends of justice’ and ‘to prevent abuse of process of any court’ are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex-facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This court while exercising the power under section 561-A Cr.P.C. does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made out or not. This is prerogative of trial court where challan is produced. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made out or not. This is prerogative of trial court where challan is produced. Where accused has opportunity to advance submission before trial court that material on record does not call for framing of charge then High court shall not exercise power under section 561-A Cr.P.C. 13. All the pleas taken in the petition are pertaining to facts; these may be relevant for discharge of accused, but not for quashing the FIR/challan, because all the pleas are pertaining to appreciation of facts. It is not case of petitioner that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding. 14. In view of above discussion, this petition is also dismissed. Interim stay, if any, is vacated. However, petitioners are at liberty to take all pleas of facts or law before Court below at the time of framing of charge.