Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 695 (HP)

Namaskari Devi v. State Of Himachal Pradesh

2019-06-12

ANOOP CHITKARA

body2019
JUDGMENT Anoop Chitkara, J. - The present petition is under Section 482 of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Code of Criminal Procedure read with Article 227 of the Constitution of India for quashing of FIR No.256 of 2016 dated 14.9.2016, registered in Police Station, Haroli, District Una, Himachal Pradesh, for the commission of offences punishable under Sections 147, 148, 149, 323, 504, 506 read with Section 201 of the Indian Penal Code. 2. The present FIR was registered on the basis of a complaint filed by one Shri Ram Asra, who is respondent No.2 in the petition against petitioners/accused No.1 to 7. The gist of the allegations contained in FIR is as follows:- (a) The complainant Ram Asra, who was aged about 58 years in 2016 when this FIR was registered, has stated that on 14.9.2016, he was present in his residential house. (b) At around 8:30 am, his neighbour Shri Shyam Chand was cleaning the drain in front of his house. (c) At that very time his sister-in-law, Smt. Namaskari Devi (petitioner/accused No.1), niece Ms. Reena (petitioner/accused No.2), Shri Naresh Kumar, son of his uncle Shri Des Raj (petitioner/accused No.4), came there and asked Shri Shyam Lal not to clean the drain. (d) Thereafter, the elder brother of the complainant, Shri Tilak Raj (Petitioner No.5), real uncle Shri Des Raj (petitioner/accused No.3), aunt Surindra Devi (Petitioner No.6) and Smt. Poonam Devi (petitioner/accused No.7), also came there. (e) All these persons hurled abuses at Shyam Lal and started beating him. (f) At that very time, he alongwith wife of Shyam Lal came out and noticed that these people were beating Shyam Lal black and blue and thus he tried to intervene. (g) Then, at that time, Naresh Kumar (Petitioner/ accused No.4), gave beatings to him with fist blows and due to which he received injuries on his nose and teeth. (h) His niece Ms. Reena inflicted a blow from a tin on the head of Shyam Lal and his cousin brother Sh. Naresh Kumar (petitioner/ accused No.4) inflicted a blow on the head of Shyam Lal with an iron rod. (i) Blood started oozing out from the head of Shyam Lal and he became unconscious. (h) His niece Ms. Reena inflicted a blow from a tin on the head of Shyam Lal and his cousin brother Sh. Naresh Kumar (petitioner/ accused No.4) inflicted a blow on the head of Shyam Lal with an iron rod. (i) Blood started oozing out from the head of Shyam Lal and he became unconscious. (j) It was further stated that all these people had assembled with an intention to kill them and they threatened them not to clean the drain and subsequently left the spot. (k) Consequently, the injured was taken to Dehla hospital. (l) It was further stated that all these people nurtured a grudge against the complainant as well as Shyam Lal and due to this animosity they have indulged in this scuffle without any reason. 3. On this information, the aforesaid FIR was registered. It has been mentioned in this petition that the parties have entered into a compromise inter se and the said compromise is annexed with the petition as Annexure P-2. 4. I have heard learned counsel for the parties and gone through the FIR as well as compromise deed (Annexure P-2). 5. Admittedly, the dispute pertains to parties who are closely related to each other. The following aspects would be relevant to arrive at a final conclusion in this petition:- (i) Admittedly both, complainant and the accused, are closely related to each other. (ii) They have already compromised the matter and in terms of Paragraph-2(i) of the compromise deed, the complainant has undertaken to withdraw the FIR. (iii) The withdrawal of FIR would be through District Magistrate as a normal procedure. (iv) However, there is inherent jurisdiction of the High Court under section 482 of the Code of Criminal Procedure, 1973 to intervene in such kind of matter and it is not the requirement of law that the cancellation has to be approved only through the District Magistrate. (v) Even if this case is put to trial, the parties are likely to maintain the stand which they have taken in this compromise which is likely to result in the acquittal of all the accused. (vi) There was no pre-meditation or prior concert and this incident took place on a trivial issue of cleaning the drain. (vii) No weapon of any sort was used during the scuffle. (viii) No dangerous injuries were received by any of the injured persons. (vi) There was no pre-meditation or prior concert and this incident took place on a trivial issue of cleaning the drain. (vii) No weapon of any sort was used during the scuffle. (viii) No dangerous injuries were received by any of the injured persons. (ix) The parties are likely to live in the neighbourhood for long time and intervention at this stage would create cordial environment for peaceful relation. 6. In Ashok Chaturvedi and others vs. Shitul H. Chanchani and another, 1998(7) SCC 698 , Hon''ble Supreme Court holds that the determination of the question as regards the propriety of the order of the Magistrate taking cognizance and issuing process need not necessarily wait till the stage of framing the charge. The Court observed thus :- "............This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in section 245 of the Criminal Procedure Code, 1973 he is debarred from approaching the court even at an earliest (sic earlier) point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under section 482 of the Code can be exercised.. 7. In Kunstocom Electronics (I) Pvt. Ltd. vs. Gilt Pack Ltd. and another, (2002) 2 SCC 383 , Hon''ble Supreme Court holds as under:- "8.............There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge." 8. 7. In Kunstocom Electronics (I) Pvt. Ltd. vs. Gilt Pack Ltd. and another, (2002) 2 SCC 383 , Hon''ble Supreme Court holds as under:- "8.............There is no hard and fast rule that the objection as to cognizability of offence and maintainability of the complaint should be allowed to be raised only at the time of framing the charge." 8. In R.P. Kapur vs. State of Punjab, AIR 1960 SC 866 , a three Judges Bench of Hon''ble Supreme Court observed as under:- "6...........It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re: Shripad G. Chandavarkar, AIR 1928 Bombay 184, Jagat Chandra Mozumdar vs. Queen Empress, ILR 26 Cal 786, Dr. Shankar Singh vs. State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Roy vs. Gobina Bandhu Majumdar, AIR 1924 Calcutta 1018 and Ramanathan Chettiyar vs. Sivarama Subramania, ILR 47 Mad 722 : (AIR 1925 Mad 39)." 9. In Girish Sarwate vs. State of A.P., 2005(1) RCR (Criminal) 758 , the Full Bench of Andhra Pradesh High Court holds as under:- "30. In Girish Sarwate vs. State of A.P., 2005(1) RCR (Criminal) 758 , the Full Bench of Andhra Pradesh High Court holds as under:- "30. In the light of these judgments of the Supreme Court, we have no doubt in our mind that under section 482 of the Code of Criminal Procedure, 1973 the High Court has the power to quash an FIR or even a complaint subject to limitations and conditions laid down by the Hon''ble Supreme Court in various judgments. It need not wait for completion of investigation and taking cognizance by the Magistrate. There is no dispute that this power has to be exercised by the High Courts very sparingly with circumspection and also in rarest of rare cases. Though there are limitations on exercise of power by the High Court, yet that would not in any way suggest that High Court lacks the power.. 10. In Himachal Pradesh Cricket Association vs. State of Himachal Pradesh (SC); 2018 (4) Crimes 324 , Hon''ble Supreme Court holds as under:- "47. As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case, once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated." 11. Madhavrao Jiwaji Rao Scindia vs. Sambhajirao Chandrojirao Angre, 1988 (1) SCC 692 , the Hon''ble Supreme Court has held as under:- "7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 12. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned here-in-above, I am of the considered opinion that continuation of these proceedings will only cause a burden on the trial Courts without resulting into any fruitful purpose whatsoever. Our trial Courts are already burdened with so many cases and it will be a total wastage of the valuable time of the Courts, if this FIR is permitted to be continued and the accused are prosecuted and it will serve no purpose whatsoever. Therefore, I am of the considered opinion that the inherent jurisdiction of the High Court under section 482 of the Code of Criminal Procedure, 1973 is invoked to quash the above mentioned FIR and consequent proceedings. 13. Consequently, this petition is allowed and the FIR No.256 of 2016 dated 14.9.2016, registered in Police Station, Haroli, District Una, Himachal Pradesh for the commission of offences punishable under Sections 147, 148, 149, 323, 504, 506 read with Section 201 of the Indian Penal Code, is quashed. Since FIR has been quashed, the proceedings pending before learned Additional Chief Judicial Magistrate, Court No.1, Una, district Una, in Case No./Challan No.13/2017, titled as State of H.P. vs. Namaskari Devi and others, are also quashed and set aside. 14. The bail bonds are accordingly discharged. Pending application(s), if any, also stand disposed of.