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2019 DIGILAW 475 (UTT)

Naresh Tewari v. State of Uttarakhand

2019-08-30

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) has been preferred for quashing the entire criminal proceedings of Criminal Case No. 1401 of 2013, State Vs. Naresh Tewari and other, pending in the court of learned Additional Chief Judicial Magistrate, Haldwani, District Nainital (hereinafter referred to as the case ). 2. The facts necessary to resolve the instant controversy, briefly stated, are as hereunder:- Respondent no.3 Smt. Devki Bhandari filed an FIR No. 375 of 2012, under Sections 147, 148, 452, 323 and 506 IPC, against the petitioners and others. According to it, respondent no.3 is owner of a piece of land and in possession of it for about 30-32 years prior to the filing of the FIR. A house was built over it, wherein respondent no.3 was residing with her family. For some period, petitioners and others had been threatening the respondent no.3 and they tried to forcibly take its possession in the past as well. On 15.09.2012 at 11:30 AM, the petitioners and others entered in the house of respondent no.3. They came along with a gas cylinder, laathi and danda and attacked respondent no.3 and others. Due to which, respondent no.3 felt unconscious and she was taken to hospital, where she was treated upon. But, the petitioners and others threatened her and her family members to life. Based on this FIR, investigation was carried out and a charge-sheet was submitted against the petitioners. The proceedings of the case was instituted and vide order dated 23.03.2013 cognizance was taken and petitioners were summoned to answer the accusations under Sections 452, 323, 506 IPC. It is this order, which is under challenge. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners would argue that on the basis of a forged will, the son of the respondent no.3, got his name mutated in the property belonging to the petitioners and when it was revealed, the petitioners got the entry quashed/set aside from the revenue records by an order dated 17.06.2009 of the competent authority. It is argued that petitioners are owner of the property. They were in possession. There cannot be an offence under Section 452 IPC with regard to the person s own property. 5. It is argued that petitioners are owner of the property. They were in possession. There cannot be an offence under Section 452 IPC with regard to the person s own property. 5. Learned counsel for the petitioners would further argue that due to enmity in connection with the property dispute, false FIR has been filed and cognizance taken, which deserves to be quashed. 6. On behalf of the State, it is argued that the statements of the witnesses recorded during investigation have already been filed. No other argument has been advanced. 7. This is proceeding under Section 482 of the Code. At this stage, much of the scrutiny of evidence is not expected of. Interference is also done only in exceptional circumstances. In the case of State of Haryana and Others Vs. Bhajan Lal and Others, (1992) Supp1 SCC 335, Hon'ble Supreme Court has laid down the test for exercising the inherent power of the High Court under section 482 of the Code of Criminal Procedure. It was held that :- 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 FIR 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. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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. (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. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 8. Undoubtedly, parties have some property dispute. But, merely because there has been a property dispute, proceeding of criminal case cannot be quashed. 8. Undoubtedly, parties have some property dispute. But, merely because there has been a property dispute, proceeding of criminal case cannot be quashed. A trial cannot be stopped on its threshold merely on the basis of the fact that parties have some enmity with regard to the property. The enmity is double edged sword. On the one hand, it gives occasion for false implication. On the other hand, it also gives occasion to commit an offence. Along with the petition, petitioners have filed Annexure No.11, it is very important document. Reference of this annexure is in para 16 of the petition, which is as hereunder: That in spite of the fact that applicants have won the civil litigation against the family of the respondent no.3 but they could not tolerate the same and when the applicants reached to their property the family of respondent no.3 including, Kundan Singh Bhandari made assault upon the family members of applicants and with regard to the same, a written Tehrir was given by the applicants to the Chauki. In charge TP Nagar Haldwani Nainital to lodge also FIR. Against the said accused persons and in which an endorsement was made that the said matter pertains to property in dispute in respect of which an FIR No. 175/2012 is still under investigation. Copy of written Tehrir with medical dated 15.09.2012 is annexed as Annexure 11 of this application. 9. According to Annexure No.11, the incident occurred, in which, respondent no.3 and her two sons and others assaulted the petitioner no.2 and her sister. When asked, learned counsel for the petitioner would submit that this incident occurred on 15.09.2012 at 11:45AM. 10. In the instant case, an FIR, which respondent no.3 filed also reflects about some incident, which occurred on 15.09.2012 at 11:30AM. In fact, this annexure No.11 supports the case of the prosecution that the incident occurred on 15.09.2012. The statement of respondent no.3 Smt.Dewki Bhandari and other witnesses Vijay Singh, Smt. Champa and Smt. Vimla have been filed by the State along with their supplementary affidavit., which supports the case of the FIR. In fact, this annexure No.11 supports the case of the prosecution that the incident occurred on 15.09.2012. The statement of respondent no.3 Smt.Dewki Bhandari and other witnesses Vijay Singh, Smt. Champa and Smt. Vimla have been filed by the State along with their supplementary affidavit., which supports the case of the FIR. The medical examination report dated 15.09.2012 at 2:55 PM of the respondent no.3 has also been filed along with supplementary affidavit, which reveals that on that date and time at base Hospital Haldwani respondent no.3 was examined when she complained of pain in her skull, she was referred for C.T. Scan etc. 11. In the proceedings under Section 482 of the Code, much of the scrutiny of the material is not required to be done. After investigation, charge sheet has been submitted. Even, as per Annexure No.11, the incident had occurred. The truthfulness of the case will be decided at trial. There is no reason to make any interference in this matter and the petition deserves to be dismissed. 12. Accordingly, the petition under Section 482 of the Code is dismissed.