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2022 DIGILAW 1 (UTT)

Aman Giri v. State of Uttarakhand

2022-01-03

RAVINDRA MAITHANI

body2022
JUDGMENT : : Ravindra Maithani, J. The instant petition has been filed for setting aside the summoning and cognizance order dated 10.09.2021 passed in Criminal Case No. 1962 of 2021, State Vs. Pappu Giri and others, under sections 323, 504 and 506 IPC pending in the court of Additional Chief Judicial Magistrate, Roorkee, District Haridwar. (for short “the case”) 2. Facts necessary, to appreciate the controversy, briefly stated, as follows; The respondent no. 3 Sanjay Bharti filed an FIR against the petitioners on 15.12.2019 at 03:37 p.m. under sections 147, 148, 323, 354, 452, 504 and 506 IPC at Police Station Kotwali Roorkee. According to the FIR, the petitioner no. 2 used to molest the wife of the respondent no. 3 (the informant). On 12.12.2019 at 06:30 also the petitioner no. 2 Pappu Giri hold the wife of the informant by her chest and started molesting her. Upon alarm having been raised by the wife of the informant, some persons gathered there. Thereafter, at about 07:00 in the morning, the petitioners armed with lathi, danda and saria entered into the house of the informant, abused him and assaulted the informant and his family members. It is this FIR, in which, after investigation, chargesheet under sections 323, 504 and 506 IPC has been submitted. On 10.09.2021, cognizance has been taken and the petitioners have been summoned to answer the accusation. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioners would submit that the instant case is totally fake and a counterblast to the FIR lodged by petitioner no. 3. It is argued that, in fact, the sons of the informant had a small altercation with the villagers in a marriage on 11.12.2019, which was settled by the local residents. But, due to this reason, the informant and his family members had become inimical to the petitioners. On 12.12.2019 at 09:30 A.M., the informant and his family members armed with lathi, danda, saria and other sharp-edged weapons, entered into the house of the petitioner no. 3, assaulted her and her family members, due to which, the petitioner no. 2 and his father sustained serious injuries. 5. Learned counsel would further submit that in the FIR lodged by petitioner no. 3, after investigation, chargesheet has already been submitted. The petitioner and his family members have sustained injuries with sharp-edged weapons. 3, assaulted her and her family members, due to which, the petitioner no. 2 and his father sustained serious injuries. 5. Learned counsel would further submit that in the FIR lodged by petitioner no. 3, after investigation, chargesheet has already been submitted. The petitioner and his family members have sustained injuries with sharp-edged weapons. It is argued that once FIR was lodged by petitioner no. 3, as a counterblast the informant lodged a false report of an alleged incident of 07:00 in the morning of the same day i.e. on 12.12.2019. But, it is argued that the Police after investigation did not find the FIR filed by the informant true with regard to the offences under section 354 and 452 IPC which were the main offences levelled by the informant. 6. Learned counsel for the petitioners would submit that this case is squarely covered by the principles as laid down by the Hon’ble Supreme Court in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335. 7. On the other hand, learned State Counsel would submit that there is no illegality in the order taking cognizance and summoning the petitioners. After investigation, chargesheet has been submitted. There are specific averments and specific roles. 8. This is a petition under section 482 of the Code of Criminal Procedure, 1973. The scope is quite wide but much guided by the principles of law as laid down by the Hon’ble Supreme Court in various judgments. Reference has been made to the judgment in the case of Bhajan Lal (supra). In the case of Bhajan Lal (supra), the Hon’ble Supreme Court while interpreting the scope under section 482 of the Code, in paragraph 102 has illustratively given the situations where jurisdiction could be invoked. In paragraph 102 of the judgment, the Hon’ble Supreme Court observed as hereunder; “102. In the case of Bhajan Lal (supra), the Hon’ble Supreme Court while interpreting the scope under section 482 of the Code, in paragraph 102 has illustratively given the situations where jurisdiction could be invoked. In paragraph 102 of the judgment, the Hon’ble Supreme Court observed as hereunder; “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 channelized 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. (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. (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.” 9. Admittedly, in case, prima facie case is made out, interference is generally not warranted. Malafide is also a reason to make an intervention. Malafide may be the lodging of FIR. But, once the investigation is completed and the Investigating Officer (“the IO”) finds that the offences have been committed, the question of malafide to be acceptable needs accompanying cogent and compelling reasons. Mere allegations may not be a ground at the stage of section 482 of the Code. 10. In the instant case, it is true that an FIR was lodged by the petitioner no. 3 on 14.12.2019 at 11:00 pm. This FIR was lodged as FIR No. 784 of 2019 at Police Station Kotwali Roorkee, which is annexure-4 to the petition. It gives a series of disputes. First being 11.12.2019, dispute in the marriage which was settled by the villagers, the second being dispute relates to 11.12.2019 at 05:30 pm and finally this FIR is basically with regard to the offence which were allegedly committed by the informant and his family members on12.12.2019 at 09:30 a.m. A statement has been given that in the FIR lodged by petitioner no. 3, after investigation chargesheet has been submitted. 11. The fact remains that in the instant case, FIR discloses that offences were committed on 12.12.2019 at 06:30 in the morning and thereafter at 07:00 a.m. It is true that the IO did not file chargesheet for the offences under section 147, 148, 354, 452, IPC in which sections FIR was lodged by the informant. 11. The fact remains that in the instant case, FIR discloses that offences were committed on 12.12.2019 at 06:30 in the morning and thereafter at 07:00 a.m. It is true that the IO did not file chargesheet for the offences under section 147, 148, 354, 452, IPC in which sections FIR was lodged by the informant. Does it mean that the investigation was much fair? Does it mean that the IO recorded the statements of the witnesses and based on the evidence collected, submitted the chargesheet? The petitioners did not chose to file statements of any of the witnesses. 12. In the instant case, the FIR discloses commission of offences and the IO after investigation, has submitted chargesheet against certain offences. Merely because the petitioners had filed an FIR in advance, the subsequent FIR cannot be quashed on the ground of malafide. As stated, to substantiate such allegations, there should be some compelling reasons or material, which is conspicuously lacking in the instant case. Therefore, this Court is of the view that there is no reasons to make any interference in the matter. Accordingly, the petition deserves to be dismissed. 13. The petition is dismissed.