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2022 DIGILAW 20 (UTT)

Beena Goyal v. State of Uttarakhand

2022-02-22

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. Challenge in this petition is made to the followings:- (i) The judgment and order dated 10.09.2021, passed in Criminal Revision No.242 of 2019, Smt. Beena Goyal vs. State of Uttarakhand and another, by the court of Sessions Judge, Dehradun and; (ii) Cognizance and summoning order dated 21.05.2018, passed in Criminal Complaint Case No.2458 of 2018, State vs. Beena Goyal, passed by the court of Chief Judicial Magistrate, Dehradun (for short, “the case”). 2. Facts necessary to appreciate the controversy briefly stated are as follows. Private respondent Smt. Anjali Gupta lodged a report on 06.11.2017 at Police Station Patel Nagar, District Dehradun under Sections 323, 504 IPC. According to it, on that date, at 5 in the evening when the respondent/the informant was all alone in her house, the petitioner along with some other women assaulted and abused her. This report was lodged as a report of non-cognizable offences. Thereafter, the informant sought directions of the court for investigation of the report lodged by her under Section 155(2) of the Code of Criminal Procedure, 1973 (for short, “the Code”). It appears that the Magistrate issued the direction for investigation. Thereafter, investigation was carried out and the charge-sheet under Sections 323, 504 IPC has been submitted against the petitioner. That is how, proceedings of the case was instituted. On 21.05.2018, cognizance was taken and the petitioner has been summoned to answer the accusation under Section 323, 504 IPC. The order dated 21.05.2018 was challenged by the petitioner in the Criminal Revision No.242 of 2019, Smt. Beena Goyal vs. State of Uttarakhand and another, which was rejected on 10.09.2021, by the court of Sessions Judge, Dehradun. All these orders and proceedings are impugned in this petition. 3. Heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner would submit that FIR is malafide. It is false case just to harass the petitioner. Learned counsel raised the following points in his arguments:- (i) The petitioner purchased the property of which the informant is a tenant on 22.05.2017. On 17.06.2017, the petitioner gave a legal notice to the informant. On 23.10.2017, a suit for rent and ejectment was instituted by the petitioner against the informant, which has been decreed on 16.09.2019. In between, just to harass the petitioner, report in the matter was lodged by the informant on 06.11.2017. On 17.06.2017, the petitioner gave a legal notice to the informant. On 23.10.2017, a suit for rent and ejectment was instituted by the petitioner against the informant, which has been decreed on 16.09.2019. In between, just to harass the petitioner, report in the matter was lodged by the informant on 06.11.2017. The informant also initiated the proceeding under Section 107 of the Code against the petitioner, which ultimately got dismissal in non-prosecution sometime in the year 2018. (ii) The informant had also filed another report against the petitioner. The proceeding in that matter has already been stayed by this Court. (iii) The informant has been seeking informations under Right to Information Act, 2005 with regard to the petitioner for no reason. (iv) The informant has also communicated with the department of the husband of the petitioner for initiating departmental proceedings against him. (v) FIR was filed against the petitioner and 5-6 other women, but the charge-sheet has been filed only against the petitioner. 5. Learned counsel would referred to the principle of law as laid down in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, to argue that in case of malafide, this Court may make interference in the proceedings under Section 482 of the Code. 6. On the other hand, learned State counsel would submit that factual disputes have been raised. This cannot be considered in the proceeding under Section 482 of the Code. 7. This is a petition under Section 482 of the Code. In this jurisdiction, the Court may makes such orders to give effect to any order of the Court, or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. It is a jurisdiction which is much large, but also guided by the certain principles as laid down by the Hon’ble Supreme Court in various judgments. In the case of Bhajan Lal (supra), the Hon’ble Supreme Court illustrated the list of the circumstances under which the jurisdiction under Section 482 of the Code may be exercised. 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 illustrated the list of the circumstances under which the jurisdiction under Section 482 of the Code may be exercised. 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 channelised 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.” 8. In case, if prima facie case is disclosed, generally interference is not warranted unless there are circumstances to do so. Malafide is one of the circumstances in which interference may be made by this Court. 9. The literal meaning of mala-fide is “bad faith” or “intention to deceit”. In the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, 1992 SCC (Cri) 192, the Hon’ble Supreme Court held that “the question of mala-fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorized purpose” (Para 22). It was further observed that “there is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. This Court in State of Bihar v. J.A.C. Saldhana, (1980) 1 SCC 554 : 1980 SCC (Cri) 272 : (1980) 2 SCR 16 has held that when the information is lodged at the police station and an offence is registered, the mala-fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person”. (Para 22) 10. The concept of mala-fide has further been discussed by the Hon’ble Supreme Court and it was held that; “49. The focal point from the above background is whether the charge-sheets are vitiated by the alleged mala fides on the part of either of the complainant R.K. Singh or the Investigating Officer G.N. Sharma. (Para 22) 10. The concept of mala-fide has further been discussed by the Hon’ble Supreme Court and it was held that; “49. The focal point from the above background is whether the charge-sheets are vitiated by the alleged mala fides on the part of either of the complainant R.K. Singh or the Investigating Officer G.N. Sharma. In Judicial Review of Administrative Action by S.A. de Smith, (3rd edn. at p.293, [Ed.: 4th Edn., p. 335] stated that: "The concept of bad faith … in relation to the exercise of statutory powers … comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred. His intention may be to promote another public interest or private interest. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise …. The administrative discretion means power of being administratively discreet. It implies authority to do an act or to decide a matter a discretion………………………..……..……………………….” “50. Mala fides means want of good faith, person bias, grudge, oblique or improper motive or ulterior purpose…………………………........................” “51. The action taken must, therefore, be proved to have been made mala fide for such considerations Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken mala fide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.” 11. The Hon’ble Supreme in the case of Zandu Pharmaceutical Works Ltd. and Other Vs. Mohd. Sharaful Haque and Another, (2005) 1 SCC 122 observed that,“………..…If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.” 12. In the case of State of Karnataka Vs. In the case of State of Karnataka Vs. M. Devendrappa and Another, (2002) 3 SCC 89 , the Hon’ble Court has further interpreted the scope of Section 482 of the Code observed that, “It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise serve the ends of justice” 13. In the case of State of Punjab v. V.K. Khanna, AIR 2001 343, Hon’ble Supreme Court had occasion to interpret the concept of mala-fide. The Court held as hereunder:- “……………..The expression ‘mala fide’ has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide - actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is inaccompaniment with some other factors which would depict a bad motive or intent on the part of the doer of the act.” (Para 25) 14. It is true that there are various litigations between the parties. The parties are in litigation. What is being argued is that since the petitioner had given a legal notice to the informant, the informant initiated various proceedings against the petitioner. The reason which have been pressed into service assailing the proceeding of the case may perhaps under certain circumstances be said to be a reason to falsely implicate someone, but it may also be a reason to commit the offence. The fact remains that soon after the purchase of the property (within a month), legal notice was issued to the informant by the petitioner. 15. Initial report by the informant which is dated 06.11.2017 is with regard to simple marpeet and abuses. The charge-sheet has been filed for the offences under Sections 323, 504 IPC alone and in the charge-sheet the Investigating Officer has named two independent witnesses namely, Smt. Meena Devi and Laxman Sahani. Their statements are not on record. 16. 15. Initial report by the informant which is dated 06.11.2017 is with regard to simple marpeet and abuses. The charge-sheet has been filed for the offences under Sections 323, 504 IPC alone and in the charge-sheet the Investigating Officer has named two independent witnesses namely, Smt. Meena Devi and Laxman Sahani. Their statements are not on record. 16. Under the facts and circumstances of this case particularly keeping in view the litigation between the parties and the cause for litigation, this Court is of the view that on the ground of malafide alone, interference in this case is not warranted. The FIR disclosed prima facie offence against the petitioner and after investigation, the Investigating Officer submitted charge-sheet against the petitioner. 17. In view of the foregoing discussion, this Court is of the view that there is no merit in the case and the petition deserves to be dismissed at the stage of admission itself. 18. The petition is dismissed in limine.