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Madhya Pradesh High Court · body

2020 DIGILAW 605 (MP)

Arjun Singh Keer v. State Of M. P. And Another

2020-05-20

RAJENDRA KUMAR SRIVASTAVA

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JUDGMENT 1. This petition under Section 482 Cr.P.C. has been filed by the petitioner seeking quashment of the FIR in Crime No. 174/19 registered at police station Rehti, District Sehore for the offence punishable under Sections 354, 506, 294 of IPC as well as Section 3(2)(Va) and 3(1)(w)(i) of the Prevention of Atrocities Act, 1989. 2. According to case, on the basis of information given by complainant/respondent No. 2, the police has registered the case under the aforesaid offences. It is mentioned in the FIR that on 29.04.2019, in the evening at about 5:00 PM, the complainant went to her farm where the petitioner was already sitting. Due to dispute of land, petitioner started abusing her and used force with intent to outrage her modesty. On shouting, he threatened her for dire consequences. He has also passed remark on her caste with intent to insult her. She disclosed the incident to her husband. In the night, the petitioner again came to her house and threatened them not to register the FIR. She lodged the FIR on 3.05.2019 when her sons came to house. 3. The learned counsel for the petitioner submits that the petitioner himself is a member of ST community as per the notification of Government issued in this regard. Hence, the provisions of SC/ST Act do not apply to the petitioner. The investigation officer has also not mentioned the caste of the petitioner in the FIR. He did not take pains to enquire about the caste of the petitioner. In the FIR, there is no ingredient for the offence of Section 294 IPC. He further submits that even if all the allegations made in the FIR, are taken to be true, no offence is made out under section 354 IPC. The petitioner had no intention to outrage the modesty of the complainant. The petitioner is aged about 33 years whereas the complainant is of 45 years, hence, the story of prosecution does not seem to be natural. The FIR has been lodged by the complainant with malafide intention. He further submits that, the petitioner has also filed the complaints dated 30.04.2019 and 01.05.2019 against the complainant and her family members for damage and abusement and the FIR was also registered by the police vide Crime No. 176/2019 for the offence under Sections 188, 427 and 34 IPC. The FIR has been lodged by the complainant with malafide intention. He further submits that, the petitioner has also filed the complaints dated 30.04.2019 and 01.05.2019 against the complainant and her family members for damage and abusement and the FIR was also registered by the police vide Crime No. 176/2019 for the offence under Sections 188, 427 and 34 IPC. He submits that due to aforesaid reason, the complainant has falsely implicated the petitioner. He prays to allow this petition. 4. On the other hand, learned panel lawyer for respondent No. 1/State as well and counsel for the respondent No. 2 oppose the petition submitting that there is sufficient material available in the case to prosecute the petitioner. Since, the petitioner was absconding, the investigation is yet to be completed, hence, the grounds raised by the petitioner may be taken into consideration by the police before filing the charge sheet. The complainant has specifically alleged against the petitioner for the aforesaid offences, hence, FIR may not be quashed, at this stage. With the aforesaid, they pray for dismissal of this petition. 5. Heard and perused the case diary. 6. Before embarking on the fact of the case it would be appropriate to consider the legal aspects regarding scope of Section 482 Cr.P.C. while quashing the FIR and other criminal proceedings. In this regard, in the case of State of Haryana vs. Bhajan Lal [1992 Supp (1) SCC 335, the Hon'ble Apex Court held that the power under section 482 Cr.P.C should be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The court issued seven guidelines to exercise the power under section 482 Cr.P.C. Same are quoted herein under : '(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 Act concerned (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 Act concerned, 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." 7. Further in the case of State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540 , the Honble Apex Court has held as under:- ' 11. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The 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 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. [See Janata Dal v. H.S. Chowdhary [ (1992) 4 SCC 305 and Raghubir Saran (Dr.)v. State of Bihar [ (1964) 2 SCR 336 . 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. 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 importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 , State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill [ (1995) 6 SCC 194 , State of Kerala v. O.C. Kuttan [ (1999) 2 SCC 651 , State of U.P. v. O.P. Sharma [ (1996) 7 SCC 705 , Rashmi Kumar v. Mahesh Kumar Bhada [ (1997) 2 SCC 397 , Satvinder Kaur v. State (Govt. of NCT of Delhi) [ (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 . 12. of NCT of Delhi) [ (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259 . 12. The above position was again reiterated in State of Karnataka v. M. Devendrappa [ (2002) 3 SCC 89 and State of M.P. v. Awadh Kishore Gupta [ (2004) 1 SCC 691 13. In Jehan Singh v. Delhi Admn. [ (1974) 4 SCC 522 while considering a case under Section 561-A of the Code of Criminal Procedure, 1898 (in short 'the Old Code') corresponding to Section 482 CrPC, it was observed as follows: (AIR p. 1146) 'Where at the date of filing the petition under Section 561-A, no charge-sheet or a complaint has been laid down in court and the matter is only at the stage of investigation by police, the court cannot, in exercise of its inherent jurisdiction under Section 561-A, interfere with the statutory powers of the police to investigate into the alleged offence, and quash the proceedings. Even assuming that the allegations in the FIR are correct and constitute an offence so as to remove the legal bar to institute proceedings in court, the court cannot at that stage appraise the evidence collected by the police in their investigation. Any petition under Section 561-A at such a stage is, therefore, premature and incompetent.' (SCC p. 526, paras 16-18) 14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 CrPC, it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal [ (1992) 3 SCC 317 , it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. In Chand Dhawan v. Jawahar Lal [ (1992) 3 SCC 317 , it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 CrPC, which cannot be termed as evidence without being tested and proved." 8. Further in the case of Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 , the Honble Apex Court has also held as under:- 25. The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled. 26. This Court in State of W.B. v. Swapan Kumar Guha [State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949 ] had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for three-Judge Bench laid down the following principle: (SCC pp. 576-77 & 598, paras 21 & 66) '21. the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. 66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. The court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. 66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence." 27. Keeping in view the aforesaid principle of law, which was consistently followed by this Court in later years and on perusing the impugned judgment, we are constrained to observe that the High Court without any justifiable reason devoted 89 pages judgment (see paper book) to examine the aforesaid question and then came to a conclusion that some part of the FIR in question is bad in law because it does not disclose any cognizable offence against any of the accused persons whereas only a part of the FIR is good which discloses a prima facie case against the accused persons and hence it needs further investigation to that extent in accordance with law. 28. In doing so, the High Court, in our view, virtually decided all the issues arising out of the case like an investigating authority or/and appellate authority decides, by little realising that it was exercising its inherent jurisdiction under Section 482 of the Code at this stage. 29 The High Court, in our view, failed to see the extent of its jurisdiction, which it possesses to exercise while examining the legality of any FIR complaining commission of several cognizable offences by the accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof. 30 At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof. 30 At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the complainants and vice versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine the questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 31. In our considered opinion, once the court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code. 9. In the case of State of T.N. v. S. Martin, (2018) 5 SCC 718 has held as under:- ' 8. We are not expressing any opinion on merits or demerits of either the case of the prosecution or the defence of the accused but we are of the firm opinion that while the investigation was still incomplete, the High Court ought not to have interfered in the present case. Leaving all questions open to be agitated at appropriate stages in the proceeding, we set aside the view taken by the High Court and allow these appeals. Consequently Crime No. 304 of 2012 stands restored to its file and the appellant is free to conduct investigation and take the matter to its logical conclusion ." 10. Now in the light of aforesaid legal principle, I revert back to the facts of the case. On perusal of case diary, it appears that the allegations against the petitioner are that when the prosecutrix was alone, he used force upon her with an intent to outrage her modesty. He also insulted her by making some remark on her caste and also abused and threatened her. The prosecutrix narrated the whole incident to her husband and sons when they came to house. He also insulted her by making some remark on her caste and also abused and threatened her. The prosecutrix narrated the whole incident to her husband and sons when they came to house. The learned counsel for the petitioner argued that the petitioner also belongs to ST community, hence, the offence under SC/ST Act be not made out against him. On perusal of case diary, it shows that the petitioner has written his surname as 'Keer' which comes under the category of Schedule Tribe for the Sehore district as per the notification of Government which is filed by the petitioner. Since, the petitioner has not filed any caste certificate in support of his contention, therefore, only on his submission, quashment of FIR would not be justifiable. Further, it also appears that petitioner/accused has also lodged the complaint against the prosecutrix. But all these facts can only be investigated in trial. It is well settled law that while exercising jurisdiction under Section 482 Cr.P.C, the Court should not ordinarily embark upon the enquiry as to whether the evidence in question, is reliable or not and when the investigation is still incomplete, the High Court should not interfere in case. 11. Therefore, this petition is devoid of merits and it is hereby dismissed . 12. C.c. as per rules.