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2019 DIGILAW 430 (HP)

Ajay Sharma v. State Of H. P.

2019-04-17

TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - By medium of this petition filed under Section 482 of the Code of Criminal Procedure (for short Code), the petitioner has prayed for quashing of FIR No. 212/2017, dated 9.9.2017 registered at Police Station, Hamirpur and further questioned cognizance taken by the learned trial Magistrate in case No. 29II of 2018, titled as State vs. Ajay Sharma under Sections 279 and 337 IPC. 2. It is averred that on 9.9.2017, the petitioner was returning back from Baddi to his Village Baffrin, District Hamirpur in his car bearing registration No. HP22A0952 and when he reached near Kohli, then his car was hit by a motorcycle bearing registration No. HP22E1330 being driven by Akshay Kumar, respondent No.2, whereas Arvind alias Mohinder, respondent No.3 was its pillion rider. Both respondents No. 2 and 3 were in inebriated condition, as confirmed in the MLCs, which show that alcohol content in the blood of respondent No.2 was 85.10 mg% and in the blood of respondent No.3 was 37.28 mg%. 3. According to the petitioner, he intimated the police regarding the accident and the police visited the spot and found respondent No.2 in inebriated condition so much so that his statement could not be recorded. Since respondents No.2 and 3 had sustained injuries, they were taken to the hospital where expenses for their medication were borne by the petitioner. But, surprisingly, instead of making respondent No.2 as an accused, the police falsely registered a case against the petitioner vide aforesaid FIR under Sections 279 and 337 IPC, whereas respondent No.2 has only been challaned under Section 185 of the Motor Vehicles Act. It is averred that solely due to rash and negligent driving of respondent No.2, who was in inebriated condition, the accident had taken place and, therefore, under no circumstances could the case have been registered against the petitioner. It is further averred that the allegations made in the FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there are sufficient grounds for proceeding against the petitioner. It is lastly averred that the criminal proceedings in this case are manifestly attended with mala fide and even maliciously instituted with ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to personal grudge. 4. It is lastly averred that the criminal proceedings in this case are manifestly attended with mala fide and even maliciously instituted with ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to personal grudge. 4. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. 5. Section 482 of the Code empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court and to quash the proceedings instituted on the complaint but such power should be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the compliant do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent power under section 482 of the Code. 6. In State of Madhya Pradesh vs. Awadh Kishore Gupta, (2004) 1 SCC 691 , Honble Supreme Court culled out the following principles for exercise of power under Section 482 of the Code: "(i) To give effect to an order under the Code. (2) To prevent abuse of the process of court. (3) To otherwise secure the ends of justice. (4) Court does not function as a court of appeal or revision. (5) Inherent jurisdiction under Section 482 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. (6) It would be an abuse of process of court to allow any action which would result in injustice. (7) In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts t abuse of the process of court. (8) When no offence is disclosed by the complaint, the court may examine the question of fact. (9) When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would not be sustainedThat is the function of the trial Judge. (9) When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would not be sustainedThat is the function of the trial Judge. (10) Section 482 is not an instrument handed over to an accused to shortcircuit a prosecution and bring about its sudden death. (11) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. (12) If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same. (13) When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importanceIt is the material collected during the investigation and evidence led in Court which decides the fate of the accused personThe allegations of mala fides against the informant are of no consequence and cannot be itself be the basis for quashing the proceedings." 7. In Amit Kapoor versus Ramesh Chander and another, (2012) 9 SCC 460 , the Honble Supreme Court laid down the principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing criminal proceedings, particularly, the charge either in exercise of jurisdiction under Section 397 or Section 482 and same are summarized as follows: "1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. 2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 10. 10. It is neither necessary nor is the court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 14. Where the chargesheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. {Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [ AIR 1982 SC 949 ]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [ AIR 1988 SC 709 ]; Janata Dal v. H.S. Chowdhary & Ors. [ AIR 1993 SC 892 ]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [ AIR 1996 SC 309 ; G. Sagar Suri & Anr. v. State of U.P. & Ors. [ AIR 2000 SC 754 ]; Ajay Mitra v. State of M.P. [ AIR 2003 SC 1069 ]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [ AIR 1996 SC 309 ; G. Sagar Suri & Anr. v. State of U.P. & Ors. [ AIR 2000 SC 754 ]; Ajay Mitra v. State of M.P. [ AIR 2003 SC 1069 ]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v.O.P. Sharma [ (1996) 7 SCC 705 ]; Ganesh Narayan Hegde v.s. Bangarappa & Ors. [ (1995) 4 SCC 41 ]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [ AIR 2005 SC 9 ]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [ AIR 2000 SC 1869 ]; Shakson Belthissor v. State of Kerala & Anr. [ (2009) 14 SCC 466 ]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [ (2009) 7 SCC 234 ]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [ (2009) 11 SCC 203 ]; Sheo Nandan Paswan v. State of Bihar & Ors. [ AIR 1987 SC 877 ]; State of Bihar & Anr. v. P.P. Sharma & Anr. [ AIR 1991 SC 1260 ]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [ (2001) 2 SCC 17 ]; M. Krishnan v. Vijay Singh & Anr. [ (2001) 8 SCC 645 ]; Savita v. State of Rajasthan [ (2005) 12 SCC 338 ]; and S.M. Datta v. State of Gujarat & Anr. [ (2001) 7 SCC 659 ] }. 16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down ,the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance of the requirements of the offence." 8. Where the factual foundation for an offence has been laid down ,the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance of the requirements of the offence." 8. In C.P. Subhash vs. Inspector of Police Chennai and others (2013) 11 SCC 599 , it was once again reiterated by the Honble Supreme Court that where complaint prima facie makes out commission of offence, High Court in ordinary course should not invoke its powers to quash such proceedings, except in rare and compelling circumstances and it was observed as under: "[7] The legal position regarding the exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances enumerated in the decision of this Court in State of Haryana and Ors. v Ch. Bhajan Lal and Others, 1992 Supp1 SCC 335. 8. Reference may also be made to the decision of this Court in Rajesh Bajaj v. State, NCT of Delhi, 1999 3 SCC 259 where this Court observed: "...If factual foundation for the offence has been laid down in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence." 9. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence." 9. To the same effect is the decision of this Court in State of Madhya Pradesh v. Awadh Kishore Gupta, 2004 1 SCC 691 where this Court said: "11...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. 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. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code " 10. Decisions of this Court in V.Y. Jose and Anr. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code " 10. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr., 2009 3 SCC 78 and Harshendra Kumar D. v. Rebatilata Koley etc., 2011 3 SCC 351 reiterate the above legal position." 9. Thus, what can be considered to be settled on the basis of the exposition of law by the Honble Supreme Court is that while exercising its jurisdiction under Section 482 of the Code, High Court has to be both cautious as also circumspect. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any Court or otherwise to secure ends of justice. Whether a complaint/FIR/chargesheet etc. discloses a criminal offence or not depends upon the nature of facts alleged therein. 10. Reverting back to the facts, it would be noticed that the petitioner is only trying to take advantage of the fact that respondent No.2 was in inebriated condition having 85.10 mg% alcohol intent in his blood, but that by itself would not prove that respondent No.2 was negligent unless there is some material on record to prove this fact. It is on the basis of testimonies of the certain witnesses, who claimed themselves to be eye witnesses, wherein they have stated the mode and manner in which the accident took place, that the petitioner was arraigned as an accused, though initially, there were allegations of contributory negligence on behalf of the petitioner and respondent No.2. 11. In addition to the aforesaid, it would be noticed that in the present proceedings, the petitioner has only prayed for quashing of FIR and the consequent proceedings before the learned trial court, whereas he has not questioned the final report under Section 173 Cr.P.C. that had been presented before the learned trial court after thorough investigation and, therefore, in absence of any challenge to the final report, FIR cannot be quashed as has been held by this Court in Nancy Bhatt and another vs. State of H.P. and another, ILR 2015 (2) 550 , wherein it was observed as follows: "2. A preliminary objection has been raised by the respondents that once the FIR has culminated in chargesheet, the present petition has been rendered infructuous, because it is not the FIR but the chargesheet which forms the basis of criminal trial. 3. I have heard learned counsel for the parties and gone through the records of the case carefully. 4. In State of Punjab vs. Dharam Vir Singh Jethi 1994 SCC (Cri.) 500 , the Honble Supreme Court held that when the chargesheet was submitted, quashing of FIR is not permissible since it would be open to the Court to refuse to frame charge. It was observed as under: "2. Heard learned counsel for the State as well as the contesting respondent. We are afraid that the High Court was not right in quashing the First Information Report on the plea that the said respondent had no role to play and was never the custodian of the paddy in question. In fact it was averred in the counteraffidavit filed in the High Court that the said respondent had acted in collusion with Kashmira Singh resulting in the latter misappropriating the paddy in question. At the relevant point of time the respondent concerned, it is alleged, was in overall charge of the Government Seed Farm, Trehan. This allegation forms the basis of the involvement of the respondent concerned. The High Court was, therefore, wrong in saying that the respondent concerned had no role to play. A specific role is assigned to him, it may be proved or may fail. In any case, pursuant to the First Information Report the investigation was undertaken and a charge sheet or a police report under Section 173(2) of the Code of Criminal Procedure was filed in the court. If the investigation papers annexed to the charge sheet do not disclose the commission of any crime by the respondent concerned, it would be open to the court to refuse to frame a charge, but quashing of the First Information Report was not permissible. 5. In Vineet Narain and others vs. Union of India and another (1996) 2 SCC 199 , the Supreme Court after refusing to quash the FIR, held that when a chargesheet was filed in the competent Court, it is that Court alone which will then deal with the case on merits, in accordance with law. 6. 5. In Vineet Narain and others vs. Union of India and another (1996) 2 SCC 199 , the Supreme Court after refusing to quash the FIR, held that when a chargesheet was filed in the competent Court, it is that Court alone which will then deal with the case on merits, in accordance with law. 6. This legal position has been reiterated in number of cases. (See: Anukul Chandra Pradhan vs. Union of India and others (1996) 6 SCC 354 and Jakia Nasim Ahesan and another vs. State of Gujarat and others (2011) 12 SCC 302 ). 7. Admittedly the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the Code of Criminal Procedure (for short Code). The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police. Investigation is the exclusive domain of the police. Ordinarily, it is only when the charge sheet is filed that the Court is empowered either to take cognizance and to frame charge or to refuse to do the same. 8. The FIR is the sheet anchor on the basis of which the investigation ensues. However, once the FIR on the basis of which the investigation was initiated has culminated into a chargesheet, the FIR does not remain the sheet anchor because the same alone then cannot be read and has to be read along with the material gathered by the investigating agency during the course of the investigation. 9. It would, therefore, not be permissible for this Court to quash the FIR or else that would amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case. Further, adverting to those facts and giving findings on merits would otherwise result in the grossest error of law because this Court in exercise of its jurisdiction under Section 482 of the Code cannot undertake pre trial of a criminal case." 12. As regards allegations of malafides, the same are absolutely vague and, therefore, of no consequences. 13. At this stage, I need not to delve into details of the material calculated by the prosecution least it would cause prejudice to either of the parties, more particularly, the petitioner. 14. As regards allegations of malafides, the same are absolutely vague and, therefore, of no consequences. 13. At this stage, I need not to delve into details of the material calculated by the prosecution least it would cause prejudice to either of the parties, more particularly, the petitioner. 14. In view of the aforesaid detailed discussion, I find no merit in this petition and the same are accordingly dismissed. Pending applications, if any, also stand disposed of.