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2019 DIGILAW 1364 (HP)

Sanjeev Kumar v. Suriendera Devi

2019-09-12

CHANDER BHUSAN BAROWALIA

body2019
JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Section 482 of the Code of Criminal Procedure (hereinafter to be called as "the Code"), has been maintained by the petitioners for quashing of order dated 12.01.2017, passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. in private complaint No. 8-I/15, whereby after finding prima facie case against the present petitioners, the summons were issued to them. 2. Briefly stating the facts, giving rise to the present petition are that on 18.06.2015, around 2:00 P.M., the respondent/complainant (hereinafter to called as "the complainant") was working in her land, in the meantime, the petitioners came there and started abusing her. Petitioner No. 1, Sanjeev Kumar, who was having sickle (drat) in his hand, attacked the complainant. Petitioners No. 2 to 6 have also beaten the complainant and the mason with the fist blows. The petitioners also threatened to kill the complainant and stolen bricks from the land of the complainant. As per the complainant, the petitioners also took Rs. 50,000/- forcibly from her pocket and not only this, they also caused the loss of Rs. 50,000/- by their acts. Consequently, the matter was reported to the SHO, Barsar, upon which, complaint vide G.D. entry No. 37(A), dated 18.06.2015, was registered against the petitioners. The complainant was medically examined and her MLC was procured. The learned trial Court after recording the evidence, issued summons to the petitioners vide order dated 12.01.2017, which reads as under: "I have perused the copy of complaint, statement of witnesses, G.D. Entry No. 37(A), medical certificates and the MLC of the complainant vide mark 'C' and copy of jamabandi. The perusal of above mentioned documents shows that there exists prime facie case against the accused person, hence I proceed to take cognizance u/Sec. 323,324,325,427,447,451,504,506 read with Sec. 34 IPC as there are sufficient grounds to proceed against the accused persons on the above mentioned offences. Let accused be summoned for 06.03.2017." Hence, the present petition. 3. Mr. Munish Datwalia, learned counsel for the petitioners has argued that the MLC of the complainant contains two injuries, out of which, one is old. He has further argued that the witnesses examined by the complainant have deposed contrary to what has been deposed by the complainant, as the complainant has deposed that the witnesses came on to the spot later on, but the witnesses have deposed otherwise. He has further argued that the witnesses examined by the complainant have deposed contrary to what has been deposed by the complainant, as the complainant has deposed that the witnesses came on to the spot later on, but the witnesses have deposed otherwise. He has argued that summoning order has been issued without appreciation to the fact that several litigations are already pending inter se the parties, as such, the same required to be quashed. 4. On the other hand, Mr. Inder Rana, learned counsel for the respondent/complainant has argued that the witnesses of the complainant have deposed in the same manner as the complainant and the learned trial Court has issued the summons after finding prima facie case for summoning the present petitioners and as far as injuries are concerned, as per MLC certificate, injury No. 2 was fresh one. 5. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 6. The complainant has specifically stated in her statement while appearing in the witness box as CW-1 that on 18.06.2015, she was raising construction of her house, in the meantime, the petitioners came there and demolished the retaining wall of her house and also took the stones. The petitioners also hurled abuses to her, hit her with sickle (drat), as well as with small stones, throttled her neck and took Rs. 50,000/- from her pocket. CW-2, Prakasho Devi has also stated in her statement that when the complainant was raising construction of her house, at that time, the petitioners came there and stated that they will not allow the complainant to raise construction of the house. The petitioners put the cloth (chaddar) on the neck of the complainant and stated that they will kill her and had she, CW-3 and CW-4 not reached on the spot, they would have killed the complainant. Similarly, CW-3 has also stated that the complainant was put down on the ground after giving beatings by the petitioners and Sanjeev Kumar was having a sickle in his hand and had she Bhrama Dass and the mason not reached on the spot, then the petitioners would have finished the complainant. 7. Similarly, CW-3 has also stated that the complainant was put down on the ground after giving beatings by the petitioners and Sanjeev Kumar was having a sickle in his hand and had she Bhrama Dass and the mason not reached on the spot, then the petitioners would have finished the complainant. 7. Besides aforesaid statements of the witnesses, the MLC also shows injuries on the person of the complainant and this Court finds that if the impugned order is considered in view of the law laid down by Hon'ble Supreme Court in 2008 (8) SCC, wherein it has been held as under: "10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases. 11. "19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage." there is prima facie case in favour of the complainant and against the petitioners and the order passed by learned trial Court suffers from no illegality. 8. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage." there is prima facie case in favour of the complainant and against the petitioners and the order passed by learned trial Court suffers from no illegality. 8. The law as has been settled by the Hon'ble Courts for quashing of FIRs and summoning order, in my opinion can be summarized as under: "(a) where no case is made out even after going through the complaint and the statements of the witnesses the summoning order can be quashed; (b) 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; (c) 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; (d) 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; (e) 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; (f) 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; (g) 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; (h) 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." The instant case does not cover any of the above illustration or any other point, which makes out a case in favour of the petitioners to interfere in the impugned order, passed by learned trial Court, as the summoning order has been passed after finding out prima facie case to proceed against the petitioners. Accordingly, the impugned order dated 12.01.2017, passed by learned trial Court needs no interference. 9. The net result of the above discussion is that the present petition, which is devoid of merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands disposed of. The parties are directed to appear before the learned trial Court on 30.09.2019. JUDGMENT : Chander Bhusan Barowalia, J. The present petition, under Section 482 of the Code of Criminal Procedure (hereinafter to be called as "the Code"), has been maintained by the petitioners for quashing of order dated 12.01.2017, passed by learned Judicial Magistrate 1st Class, Barsar, District Hamirpur, H.P. in private complaint No. 8-I/15, whereby after finding prima facie case against the present petitioners, the summons were issued to them. 2. Briefly stating the facts, giving rise to the present petition are that on 18.06.2015, around 2:00 P.M., the respondent/complainant (hereinafter to called as "the complainant") was working in her land, in the meantime, the petitioners came there and started abusing her. Petitioner No. 1, Sanjeev Kumar, who was having sickle (drat) in his hand, attacked the complainant. Petitioners No. 2 to 6 have also beaten the complainant and the mason with the fist blows. The petitioners also threatened to kill the complainant and stolen bricks from the land of the complainant. As per the complainant, the petitioners also took Rs. 50,000/- forcibly from her pocket and not only this, they also caused the loss of Rs. 50,000/- by their acts. Consequently, the matter was reported to the SHO, Barsar, upon which, complaint vide G.D. entry No. 37(A), dated 18.06.2015, was registered against the petitioners. The complainant was medically examined and her MLC was procured. The learned trial Court after recording the evidence, issued summons to the petitioners vide order dated 12.01.2017, which reads as under: "I have perused the copy of complaint, statement of witnesses, G.D. Entry No. 37(A), medical certificates and the MLC of the complainant vide mark 'C' and copy of jamabandi. The perusal of above mentioned documents shows that there exists prime facie case against the accused person, hence I proceed to take cognizance u/Sec. 323,324,325,427,447,451,504,506 read with Sec. 34 IPC as there are sufficient grounds to proceed against the accused persons on the above mentioned offences. Let accused be summoned for 06.03.2017." Hence, the present petition. 3. Mr. The perusal of above mentioned documents shows that there exists prime facie case against the accused person, hence I proceed to take cognizance u/Sec. 323,324,325,427,447,451,504,506 read with Sec. 34 IPC as there are sufficient grounds to proceed against the accused persons on the above mentioned offences. Let accused be summoned for 06.03.2017." Hence, the present petition. 3. Mr. Munish Datwalia, learned counsel for the petitioners has argued that the MLC of the complainant contains two injuries, out of which, one is old. He has further argued that the witnesses examined by the complainant have deposed contrary to what has been deposed by the complainant, as the complainant has deposed that the witnesses came on to the spot later on, but the witnesses have deposed otherwise. He has argued that summoning order has been issued without appreciation to the fact that several litigations are already pending inter se the parties, as such, the same required to be quashed. 4. On the other hand, Mr. Inder Rana, learned counsel for the respondent/complainant has argued that the witnesses of the complainant have deposed in the same manner as the complainant and the learned trial Court has issued the summons after finding prima facie case for summoning the present petitioners and as far as injuries are concerned, as per MLC certificate, injury No. 2 was fresh one. 5. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. 6. The complainant has specifically stated in her statement while appearing in the witness box as CW-1 that on 18.06.2015, she was raising construction of her house, in the meantime, the petitioners came there and demolished the retaining wall of her house and also took the stones. The petitioners also hurled abuses to her, hit her with sickle (drat), as well as with small stones, throttled her neck and took Rs. 50,000/- from her pocket. CW-2, Prakasho Devi has also stated in her statement that when the complainant was raising construction of her house, at that time, the petitioners came there and stated that they will not allow the complainant to raise construction of the house. The petitioners put the cloth (chaddar) on the neck of the complainant and stated that they will kill her and had she, CW-3 and CW-4 not reached on the spot, they would have killed the complainant. The petitioners put the cloth (chaddar) on the neck of the complainant and stated that they will kill her and had she, CW-3 and CW-4 not reached on the spot, they would have killed the complainant. Similarly, CW-3 has also stated that the complainant was put down on the ground after giving beatings by the petitioners and Sanjeev Kumar was having a sickle in his hand and had she Bhrama Dass and the mason not reached on the spot, then the petitioners would have finished the complainant. 7. Besides aforesaid statements of the witnesses, the MLC also shows injuries on the person of the complainant and this Court finds that if the impugned order is considered in view of the law laid down by Hon'ble Supreme Court in 2008 (8) SCC, wherein it has been held as under: "10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases. 11. "19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage." there is prima facie case in favour of the complainant and against the petitioners and the order passed by learned trial Court suffers from no illegality. 8. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage." there is prima facie case in favour of the complainant and against the petitioners and the order passed by learned trial Court suffers from no illegality. 8. The law as has been settled by the Hon'ble Courts for quashing of FIRs and summoning order, in my opinion can be summarized as under: "(a) where no case is made out even after going through the complaint and the statements of the witnesses the summoning order can be quashed; (b) 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; (c) 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; (d) 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; (e) 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; (f) 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; (g) 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; (h) 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." The instant case does not cover any of the above illustration or any other point, which makes out a case in favour of the petitioners to interfere in the impugned order, passed by learned trial Court, as the summoning order has been passed after finding out prima facie case to proceed against the petitioners. Accordingly, the impugned order dated 12.01.2017, passed by learned trial Court needs no interference. 9. The net result of the above discussion is that the present petition, which is devoid of merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands disposed of. The parties are directed to appear before the learned trial Court on 30.09.2019.