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2019 DIGILAW 1247 (ALL)

Surendra Kumar Singh v. State of U. P.

2019-05-08

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : 1. This application u/s 482 Cr.P.C. has been moved on behalf of applicants seeking the quashing of complaint dated 27.10.2004 and impugned order dated 16.9.2005 as well as entire proceedings arising out of Case No.1847 of 2005 (Surendra Pal vs. Ram Singh and others), u/s 435 I.P.C. pending in the court of Chief Judicial Magistrate, Bijnore. 2. List has been revised. Despite repeated calls none has appeared on behalf of opposite party no.2 to oppose this application. Learned A.G.A. is present. This application is of year 2005. In the wake of heavy pendency of cases in this Court where dockets are already bursting on their seams there is no justifiable reason to further procrastinate the matter. This Court, therefore, deems it fit to proceed in the matter with the assistance of the learned AGA representing the State. 3. Heard learned counsel for the applicants and learned A.G.A. 4. It appears from the perusal of the record that an F.I.R. under section 435 Cr.P.C. was lodged by the complainant but after investigating into the case a final report was submitted. The complainant was summoned who protested against the submission of final report and as it was within the powers of Magistrate to do so, he took the cognizance in the matter treating the protest as complaint and proceeded in the matter following the right procedure. During the course of inquiry the complainant was examined under section 200 Cr.P.C. and then under section 202 Cr.P.C. P.W.1, Omprakash, P.W.2, Rohtash Kumar and P.W.3, Gyanchand were examined. On the basis of the material that was adduced during the course of enquiry the Court below thought it fit to proceed to summon the accused in order to face the trial. The version that appears to have been brought forward by the complainant is to the effect that there were some prior enmity going on between the complainant and the accused persons. On the day of occurrence i.e. to say on 12.3.2004 at about 4:00 a.m. when the complainant and his brother Rajendra Kumar had gone to attend the call of nature he found that co-accused Ram Singh, Dhyan Singh, Surendra Kumar, Mahavir and Veerpal were putting fire to the sugarcane crop that were there in his fields. On the day of occurrence i.e. to say on 12.3.2004 at about 4:00 a.m. when the complainant and his brother Rajendra Kumar had gone to attend the call of nature he found that co-accused Ram Singh, Dhyan Singh, Surendra Kumar, Mahavir and Veerpal were putting fire to the sugarcane crop that were there in his fields. The complainant and his brother raised hue and cry which attracted a number of witnesses which included witnesses Rohtash Singh, Rampal Singh, Omprakash, Gyan Chandra and Satyendra etc. who arrived on the spot and helped quenching the fire. This version has been by and large reiterated by witnesses Omprakash, Gyanchandra and Rohtash who have been examined under section 202 Cr.P.C. on behalf of complainant. Being satisfied by the material adduced, the Court proceeded to summon the accused persons to face the trial under section 435 Cr.P.C.. Submission of the counsel in defense of the applicant is that story as has been alleged on behalf of complainant is highly improbable and the witnesses who claimed to have seen the occurrence are shear chance witnesses and their presence on the spot appears to be suffering with the element of high improbability. It has been contended that the incident is said to have taken place at about 4:00 a.m. in the morning. It is too much of coincidence to believe that just the moment when the complainant and his brother had gone near their own fields, it was just at that point of time that the accused came over there and set the crop ablaze. According to the counsel if the complainant was already present on the spot, there was no reason for the accused to have indulged in this act in their presence. They could have done it much earlier throughout the night which preceded the time of occurrence and they could also have committed this offence after the complainant had left the spot. Submission is that such kind of allegation is militating against the normal ways of conduct which is to screen oneself from being seen by others committing the crime. The very fact that the said occurrence is said to have taken place in the wee hours shows that whosoever has done it had taken care of to conceal himself from being witnessed by others. The very fact that the said occurrence is said to have taken place in the wee hours shows that whosoever has done it had taken care of to conceal himself from being witnessed by others. In such circumstances, the claim of the complainant that the occurrence took place in the presence of multiple witnesses is by itself a highly unnatural claim and is not worth placing reliance upon. Further submission is that witnesses Gyanchandra and Rohtash who claimed to have seen the accused persons setting the crop ablaze again suffers the same criticism of high improbability. It has also been submitted that putting fire into the crop does not take much time and if what has been alleged was true then task of setting ablaze would have ended within minutes and therefore it further appears to be a very incredible, unnatural and improbable story that at that brink of time when the accused were setting ablaze the crop the other witnesses would also have landed on the spot and could find the occasion to have seen accused committing the offence in question in their presence. Submission is that the presence of the witnesses in the wee hours at 4:00 a.m. in the morning is a claim which does not inspire confidence and it appears that if at all there was some crop which suffered some loss by fire then the implication of the accused has been made only as a result of wild guess and as a result of conjectures alone. In the same context the counsel has further added the argument about the delay in lodging F.I.R.. The incident is said to have taken place on 12.3.2004 while the F.I.R. was lodged on 16.3.2004. Submission is that this yawning gap and the huge delay in lodging F.I.R. remains wholly unexplained on behalf of complainant. If the incident had taken place on 12.3.2004 there was no justification to wait for so long and lodge the F.I.R. after so much of delay. Submission is that this yawning gap in lodging the F.I.R. is well consistent with the probability that this time was consumed in finding out the possible offenders and ultimately when after confabulation and consultations the suspicion matured against the present applicants, the F.I.R. was lodged. Submission is that this yawning gap in lodging the F.I.R. is well consistent with the probability that this time was consumed in finding out the possible offenders and ultimately when after confabulation and consultations the suspicion matured against the present applicants, the F.I.R. was lodged. In addition to it contention of the counsel is that initially after investigation the allegations were not found substantiated by investigating officer and as a result of the same the final report was also submitted. The Court below while rejecting the final report did not at all consider the circumstances and the material collected by investigating officer which persuaded him to file his final report in favour of accused. The exercise of summoning the accused has been done in a rather mechanical manner and lacks actual application of judicial mind. Argument is that the continuation of the proceedings against the applicants will result in nothing except abuse of court's process. 5. Perused the record in the light of submissions made at the bar. 6. Perusal of the record shows that the time of incident as is said to have taken place was at 4:00 a.m. in the morning. This Court finds substance in the submissions raised by the counsel that the presence of the complainant and his brother at that hour cannot be said to be a very natural presence. The presence of other witnesses also appears to be merely coincidental and not natural. The claim of the complainant that all of them had the occasion to witness the accused setting ablaze the crop also appears to be a highly improbable claim and it is too much to believe such a coincidence. Delay in lodging F.I.R. is also wholly unexplained phenomenon which shall go to the root of the matter. Submission of the counsel about the confabulations made during this period appears to have substance and it is not difficult to see that the implication of the accused appears to be more as a result of wild conjectures based on previous enmity rather than on any basis of truth. There are strong circumstances to indicate that the incident remained unwitnessed by anybody and implication of the accused is just a result of prior enmity and in such circumstances this Court is of the view that the application deserves to be allowed. 7. There are strong circumstances to indicate that the incident remained unwitnessed by anybody and implication of the accused is just a result of prior enmity and in such circumstances this Court is of the view that the application deserves to be allowed. 7. So far as the law on the point of quashing criminal proceedings against the accused is concerned this aspect has been expatiated upon by Hon'ble Supreme Court in a number of cases. It would be necessary to site the relevant observations made by Apex Court in perspective the law laid down by Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426, in which certain categories have been recognized on the basis of which the criminal proceeding against a certain party or the accused may be quashed. It was observed by the Hon'ble Apex Court in Bhajan Lal's case as follows :- "The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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. (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 cognizable 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 Section 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) where 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 proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) 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." 8. In the considered view of this Court this matter falls in category no.(7) mentioned hereinabove. This Court finds reason to hold that the proceedings in question are inspired by malice or the part of complainant and the version contained therein is full of high improbabilities and the continuation of the proceedings on that basis is likely to result in abuse of court's process, and therefore, the entire proceeding of complaint in question is liable to be quashed. 9. In this view of the matter this application is allowed and the entire proceeding of complaint in question against the accused-applicants stand quashed. 10. A copy of this order be certified to the lower court concerned forthwith.