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2021 DIGILAW 113 (MP)

Mangal Singh v. State of M. P.

2021-02-05

G.S.AHLUWALIYA

body2021
JUDGMENT : Gurpal Singh Ahluwalia, J. Heard through Video Conferencing 1. This petition under Article 226 of the Constitution of India has been filed seeking the following relief :- "(i) Issue an appropriate writ quashing the criminal proceedings pending against the petitioners in Crime No. 124/2020 at P.S. Ishanagar Chhatarpur M.P. (ii) Issue an appropriate writ restraining the respondents from taking any adverse action against the petitioners. (iii) To issue a writ directing respondents to hold enquiry in respect of false implication of the petitioners in Crime No. 124/2020 at P.S. Ishanagar Chhattarpur M.P. (iv) Call for entire record of the case of Petitioner. (v) To grant any relief deemed just and proper in the facts and circumstances of the case." 2. It is submitted by the counsel for the petitioner that FIR in crime No. 124/2020 has been got registered by the respondent No. 7 at Police Station Ishanagar, District Chhatarpur by way of counter blast as the son of petitioner No. 1 was killed by the sons and other family members of respondent No. 7 and a crime No. 176/19 has been registered against six persons at Police Station Ishanagar, District Chhatarpur. Out of six accused persons, five have already been arrested and one is still absconding and a reward of Rs. 5,000/- has been declared. The application for bail filed by the son of the respondent No. 7 namely Pratap Singh has already been rejected by this Court and in order to create a counter pressure, the respondent No. 7 has lodged false FIR of Section 307 on the basis of self inflicted injury and thus it is prayed that as the report lodged by respondent No. 7 suffers from malafides and has been lodged by way of counter blast, therefore, the same may be quashed or the police may be directed to conduct free and fair investigation. 3. Per contra, the prayer made by the counsel for the petitioner is vehemently opposed by the counsel for the respondent No. 7. It is submitted by Shri Banerjee that it is incorrect to say that the respondent No. 7 has lodged false report by causing a self inflicted injury. It is further submitted that the accused has no right to dictate the investigating officer to investigate the matter in a particular manner. Heard the learned counsel for the parties. 4. It is submitted by Shri Banerjee that it is incorrect to say that the respondent No. 7 has lodged false report by causing a self inflicted injury. It is further submitted that the accused has no right to dictate the investigating officer to investigate the matter in a particular manner. Heard the learned counsel for the parties. 4. It is the case of the petitioner that the FIR in question has been lodged by way of counter to crime No. 176/2019. The Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar and others reported in (2008) 12 SCC 346 has held as under:- "9. "8. Exercise of power under Section 482 Cr.P.C. in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Cr.P.C., (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. The 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 the course of administration of justice on the principle of "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 the powers under the section, the court does not function as a court of appeal or revision. While exercising the 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 the 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 the 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 the 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. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto. 9. xxxxxx 10. xxxxxx 11. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. 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 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. 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. 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 )] The above position was again reiterated in State of Karnataka v. M. Devendrappa ( 2002 (3) SCC 89 ), State of M.P. v. Awadh Kishore Gupta (2004 (2) SCC 691) and State of Orissa v. Saroj Kr. Sahoo ( 2005 (13) SCC 540 )." 5. Thus, if FIR discloses commission of cognizable offence then it has to be decided on the basis of the allegations and the malafides of the complainant is of secondary importance. The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held that in case if the complaint discloses commission of cognizable offence then the police officers are under obligation to register the FIR. The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held that in case if the complaint discloses commission of cognizable offence then the police officers are under obligation to register the FIR. The FIR in question reads as under:- eSa xzke lhxkSu dh jgus okyh gwWa ?k# dk;Z djrh gwWa vkt jkr esa 9 cts djhc eSa vius ?kj ds vanj Fkh rHkh ?kj ds ckgj xkyh xykSp dh vkokt vk;h rks eSa njokts ij igqWaph rks xkao ds egs'k yqgkj] ckyks dkNh] eaxy flag] t;iky flag dqUt fogkjh yqgkj t;fgUn flag ,oa bZ'kkuxj ds egsUnz xqIrk o ydh xqIrk igkMxkao dk 'kkUruq Bkdqj esjs ?kj ds ckgj [kM+s Fks ,oa esjs ifr Áfriky flag dks uke ysdj ckgj vkus dks dg jgs Fks fd eknj pksn Áfriky ckgj fudy ,oa eq>ls cksyks fd Áfriky dgk gS mls ckgj fudkyks rks eSaus dgk fd rqe yksx esjs ?kj D;ksa vk;s gks rHkh t;iky flag us dV~Vk fudky dj tku ls ekjus dh fu;r ls esjs Åij xksyh pykbZ tks esa nkgus gkFk dh Hkqtk esa yxh fQj egs'k yksgkj us dV~Vs ls esjs Åij xksyh pykbZ tks esjs cxy ls fudy x;h rHkh esjs ?kj ls NksVh jktk fjadh jktk nsfodk jktk ,oa fxjts'k jktk ckgj vk x;h rks lHkh yksx ekSds ls Hkkx x;sA eSa vius nsoj gYds jktk ,oa ifr ds lkFk bykt gsrq vk;h gwWa vkt ls 15&16 o"kZ iwoZ egsUnz xqIrk ,oa ckyks dkNh us feydj esjs nsoj egsUnz flag dh gR;k dh Fkh rHkh ls ;g yksx ge yksxksa ls cqjkbZ j[krs gS lks fjiksVZ djrh gwWa dk;Zokgh dh tk;saA Qfj;kfn;k dh fjiksVZ ij vi- Ø-124@20 /kkjk 147] 148] 294] 307 rk- fg- 25@27 vkElZ ,DV dk;e dj foospuk esa fy;k x;kA 6. If the allegations made in the FIR are considered on their face value then it is clear that it discloses the commission of cognizable offence. Whether the FIR has been lodged by way of counterblast or the petitioners have committed offence in retaliation to the murder of their family member is a disputed question of law which cannot be decided by this Court while entertaining petition under Article 226 of the Constitution of India. Enmity is double edged weapon. If the enmity is a ground for false implication then enmity is also the ground for committing the offence. Enmity is double edged weapon. If the enmity is a ground for false implication then enmity is also the ground for committing the offence. It is well established principle of law that this Court while exercising the writ jurisdiction cannot dwell upon the disputed questions of fact. It is well established principle of law that unborn baby should not be killed and the legitimate investigation or prosecution should not be stifled in the midway. Further for quashment of FIR, only un-controverted allegations are to be seen and the defence of the suspect cannot be looked into. 7. Under these circumstances no case is made out warranting quashment of FIR registered vide crime No. 124/2020 at Police Station Ishanagar, District Chhatarpur. 8. So far as the prayer of the petitioner for direction to the police to investigate the matter in a free and fair manner is concerned, it is well established principle of law that the suspect has no right to dictate his terms for getting the investigation done as per his choice. 9. The Supreme Court in the case of Romila Thapar v. Union of India, reported in (2018) 10 SCC 753 has held as under:- 23. After having given our anxious consideration to the rival submissions and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named accused have approached this Court and have asked for being transposed as writ petitioners, the following broad points may arise for our consideration: 23.1. (i) Should the investigating agency be changed at the behest of the named five accused? 23.2. (ii) If the answer to Point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL? 23.3. (iii) If the answer to Questions (I) and/or (ii) above, is in the, have the petitioners made out a case for the relief of appointing Special Investigating Team or directing the court-monitored investigation by an independent investigating agency? 23.4. (iv) Can the accused person be released merely on the basis of the perception of his next friend (writ petitioners) that he is an innocent and law abiding person? 24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. 23.4. (iv) Can the accused person be released merely on the basis of the perception of his next friend (writ petitioners) that he is an innocent and law abiding person? 24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat, in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus: "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them." (emphasis supplied) 25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus: "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary." (emphasis supplied) 26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed: "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity." 27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide. 10. This Court in the case of Prabal Dogra vs. Superintendent of Police, Gwalior and State of M.P. by order dated 30.11.2017 passed in M.Cr.C. No. 10446/2017 has held as under:- "(21) It is well established principle of law that the free trial is the fundamental right of the accused as well as of the complainant. If the Court supervises the investigation by issuing directions to the investigating officer, and compels the investigating officer to form his opinion based on the directions of the Court, then nothing would be left in the Trial Court. The Supreme Court in the case of Manohar Lal Sharma (Supra) has held as under: ''39. If the Court supervises the investigation by issuing directions to the investigating officer, and compels the investigating officer to form his opinion based on the directions of the Court, then nothing would be left in the Trial Court. The Supreme Court in the case of Manohar Lal Sharma (Supra) has held as under: ''39. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/inquiry. To supervise would mean to observe and direct the execution of a task whereas to monitor would only mean to maintain surveillance. The concern and interest of the court in such "Court directed" or "Court-monitored" cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression "Court-monitored" has been interchangeably used with "Court supervised investigation". Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time bound manner without any external interference.'' (22) If the facts of this case are considered, then it would be clear that no allegations have been made by the applicant against the investigating officer, but on the contrary, the basic allegations are that he is being falsely implicated by the complainant. 11. 11. The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held as under:- ''120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may-warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.'' (23) Thus, where a complaint is made disclosing the commission of cognizable offence, then it is mandatory on the part of the police to register the F.I.R. In the present case, the allegations made in the F.I.R., do disclose the commission of cognizable offence. Thus, the police did not commit any mistake by registering the F.I.R. in the matter. Whether the allegations made in the F.I.R. or case diary statements of the witnesses are worth reliable or not, it is for the investigating officer to form its opinion after concluding the investigation. This Court cannot supervise the investigation by issuing directions as to in what manner the investigation is to be done. It is the prerogative of the investigating officer unless and until, it is shown that the investigating officer is doing a biased investigation because of some extraneous considerations or mala fides. This Court in exercise of powers under Section 482 of Cr.P.C. cannot direct the police to investigate the case from a particular point of view also. There is no allegation against the investigating officer with regard to dereliction from duties. Even the investigating officer has not been made a party to this petition. Even the Doctor who had examined the complainant and has given the M.L.C. report, has not been made a party to this application, therefore, the allegations of mala fides against him can not be considered. No allegations of mala fides have been made against the concerning Doctor, except by mentioning that a false M.L.C. report has been prepared in connivance with the Doctor. Furthermore, whether the M.L.C. report was right or manipulated, can be proved during Trial while cross examining the concerning witness." 12. No allegations of mala fides have been made against the concerning Doctor, except by mentioning that a false M.L.C. report has been prepared in connivance with the Doctor. Furthermore, whether the M.L.C. report was right or manipulated, can be proved during Trial while cross examining the concerning witness." 12. Furthermore there is nothing in the writ petition to indicate that the investigating officer is not investigating the matter in free and fair manner and there is no reason to apprehend that the investigating officer shall not investigate the matter in a free and fair manner. 13. As no case is made out for interference, accordingly, the petition fails and is hereby dismissed.