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2021 DIGILAW 421 (HP)

Sanjay Kumar v. State Of H P & Anr.

2021-07-19

CHANDER BHUSAN BAROWALIA

body2021
JUDGMENT Chander Bhusan Barowalia, J. - The instant petition, under Section 482 of the Code of Criminal Procedure, has been maintained by the petitioner for quashing of F.I.R No. 164 of 2019, dated 22.07.2019, under Sections 341, 143, 147, 149, 353, 504 and 506 of the Indian Penal Code (hereinafter to be called as "IPC"), registered at Police Station West Shimla, Boileauganj, District Shimla, H.P., alongwith all consequent proceedings arising out of the said F.I.R., pending before the learned trial Court. 2. The entire gamut of the matter in brief is that on 22.07.2019, a police personnel, deputed on traffic duty, telephonically informed the police of Police Station West Shimla, Boileauganj, that a mob of Advocates had assembled at Boileauganj Bazar, and are insisting to drive their vehicles through a restricted road, namely "Boileauganj via Chaura Maidan road". Consequent upon the telephonic information, the police officials arrived at the spot of agitation. The mob of the Advocates have parked their vehicles blocking the traffic movement and the petitioner was one of the agitating Advocates. The Advocates, on being asked, divulged that they intend to drive through the restricted road without having a valid permit for the same. The mob was aggressive and after an altercation, police officials were given fist blows and hurled abuses. The police officials tried their level best to pacify the situation, however, to their utter dismay the mob threatened to set ablaze the police station. The mob started raising slogans and protested on the spot. The police registered a case under the apt provisions of law and proceeded accordingly. Now, by medium of this petition, the petitioner is seeking that F.I.R No. 164 of 2019, dated 22.07.2019, under Sections 341, 143, 147, 149, 353, 504 and 506 of the Indian Penal Code, registered at Police Station West Shimla, Boileauganj, District Shimla, H.P., alongwith all consequential proceedings arising out of the said F.I.R., may be quashed. 3. Learned counsel for the petitioner has argued that a co-ordinate Bench of this High Court in its verdict rendered in Cr.MMO No. 339 of 2020, decided on 22.02.2021, titled Anu Tuli Azta vs. State of H.P., quashed the FIR lodged against the petitioner therein. 3. Learned counsel for the petitioner has argued that a co-ordinate Bench of this High Court in its verdict rendered in Cr.MMO No. 339 of 2020, decided on 22.02.2021, titled Anu Tuli Azta vs. State of H.P., quashed the FIR lodged against the petitioner therein. She has further argued that the decision (supra) has been passed in a petition which is an offshoot of the same FIR, so the instant petition is also required to be allowed and no purpose will be served by keeping the proceedings alive against the petitioner and the FIR/Challan, may be quashed and set aside. 4. On the other hand, learned Additional Advocate General has argued that the offence is not compoundable, so the petition may be dismissed. 5. To appreciate the arguments of learned counsel for the petitioner and learned Additional Advocate General, I have gone through the entire record in detail. 6. At the very outset, it would be profitable to highlight the relevant paras of the decision rendered by a co-ordinate Bench of this Court in Cr.MMO No. 339 of 2020, decided on 22.02.2021, titled Anu Tuli Azta vs. State of H.P, which are as under: "The FIR nowhere mentions the role of the petitioner. Even if this Court presumes the petitioner present at the spot, it would still not lead to an automatic inference of her acting with a common object with those who had inflicted fist blows, hurled abuses, and threatened the SHO, and also threatened to burn the Police Station. 10. Although the police got a video recording of the incident, the State did not refer to the said portion of the disk at which time frame, the Petitioner was video recorded inflicting fist blows, hurling abuses, or threatening the SHO, or threatening to burn the Police station. 11. In the complaint, the SHO did not mention the time, and there is no explanation of its non-mentioning. Pinpointing the time was crucial because the petitioner could have taken the plea of alibi. 12. Even if this Court believes all the allegations in FIR as truthful, still there is no allegation against the petitioner of participating in any criminal act. 13. Mere presence at the spot in the demonstration would not invite criminal act in the facts and nature of allegations made in the present FIR. 14. 12. Even if this Court believes all the allegations in FIR as truthful, still there is no allegation against the petitioner of participating in any criminal act. 13. Mere presence at the spot in the demonstration would not invite criminal act in the facts and nature of allegations made in the present FIR. 14. Holding peaceful processions, raising slogans, would not be and cannot be an offence under India's Constitution. 15. Therefore, naming and arraigning the petitioner as an accused is a gross abuse of the process of law. If proceedings are allowed to be continued, it shall amount to the miscarriage of Justice. 16. In the cumulative effect of all the factors mentioned above, and in the peculiar facts and circumstances, it is one of the exceptional cases, where this Court should exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. 17. Given above, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is invoked. This Court has inherent powers under Section 482 of the Code of Criminal Procedure to interfere in this kind of matter. Given the entirety of the case and judicial precedents, I am of the considered opinion that the continuation of these proceedings will not suffice any fruitful purpose whatsoever. 18. In Himachal Pradesh Cricket Association v State of Himachal Pradesh, (2018) 4 Crimes(SC) 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." Consequently, this petition is allowed, and the FIR No.164/2019, dated 22.07.2019, registered in Police Station (West), Shimla, under Sections 341, 143, 147, 149, 353, 504, and 506 IPC, is quashed qua the petitioner. Since FIR has been quashed, all the consequential proceedings are also quashed and set aside qua the petitioner." 7. Since FIR has been quashed, all the consequential proceedings are also quashed and set aside qua the petitioner." 7. Avowedly, the present is an offshoot of the FIR No. 164 of 2019, dated 22.07.2019 and even the allegations against the present petitioner are akin to that of the petitioner in the judgment (supra). So, this Court considering the judgment (supra) and also the fact that the present petition is also an offshoot of the same FIR, finds that the there is no reason for this Court to deviate from the decision rendered by a co-ordinate Bench of this Court, as extracted hereinabove, as this Court finds that factually the petitioner is similarly situated like the petitioner in Cr. MMO No.339 of 2020, decided on 22.2.2021. 8. After going through the contents of the FIR, same do not disclose any cognizable offence against the petitioner and even if it is presumed that the petitioner was present at the spot, then also it cannot be inured that he acted with a common object with those who had inflicted fist blows, hurled abuses, and threatened the SHO, and also threatened to set ablaze the Police Station. The police got a video recording of the incident, however, the State did not refer to the said portion of the disk, at which time frame, the petitioner was video recorded inflicting fist blows, hurling abuses, or threatening the SHO, or threatening to set ablaze the Police station. Admittedly, In the complaint, the SHO did not mention time and there is no explanation of its non-mentioning. Pinpointing the time was decisive because the petitioner could have taken the plea of alibi. Even if it is believed that all the allegations in the FIR are true, then also there is no allegation against the petitioner of participating in any criminal act. Mere presence on the spot of demonstration cannot be termed as "criminal act". Holding peaceful processions, raising slogans, would not be and cannot be an offence under the realm of Constitution. Therefore, naming and arraigning the petitioner as an accused is a gross abuse of the process of law. If proceedings are allowed to be continued, it shall amount to the miscarriage of Justice. 9. Holding peaceful processions, raising slogans, would not be and cannot be an offence under the realm of Constitution. Therefore, naming and arraigning the petitioner as an accused is a gross abuse of the process of law. If proceedings are allowed to be continued, it shall amount to the miscarriage of Justice. 9. The cumulative effect of the discussion made hereinabove is that the present, considering the peculiar facts and circumstances of the case, is an exceptional case, where this Court should exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure. Accordingly, inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure is invoked. This Court has inherent powers under Section 482 of the Code of Criminal Procedure to interfere in this kind of matter. Therefore, considering the entirety of the facts and circumstances of the case, and judicial precedents and also the decision rendered by a coordinate Bench of this Court, as referred hereinabove, this Court is of the opinion that keeping the proceedings in question alive will not sub-serve the ends of justice and would rather be futile exercise that would result in vain. 10. In view of the above discussion and considering the decision rendered by a co-ordinate Bench of this Court in Cr.MMO No. 339 of 2020, decided on 22.02.2021, titled Anu Tuli Azta vs. State of H.P., the instant petition is allowed, and FIR No. 164 of 2019, dated 22.07.2019, under Sections 341, 143, 147, 149, 353, 504 and 506 of the Indian Penal Code, registered at Police Station West Shimla, Boileauganj, District Shimla, is quashed qua the petitioner. Since FIR has been quashed, all the consequential proceedings are also quashed and set aside qua the petitioner. 11. In view of the above the instant petition is disposed of, so also the pending application(s), if any.