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2022 DIGILAW 247 (UTT)

Major Birendra Singh Negi v. State of Uttarakhand

2022-08-05

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. The challenge in this petition is made to the summoning order dated 20.09.2018, passed in Criminal Case No.4698 of 2018, State of Uttarakhand vs. Birendra Singh Negi, under Sections 323, 354, 504 IPC, passed by the court of Additional Chief Judicial Magistrate (I), Dehradun (for short, “the case”) as well as the entire proceedings of the case. 2. Heard learned counsel for the parties and perused the record. 3. The respondent no.2 (“the informant”) filed an FIR on 28.01.2018, under Sections 323, 354, 504, 120B IPC, Police Station Patel Nagar, Dehradun, District Dehradun against the petitioner. According to it, the informant had taken a restaurant on lease but, the landlord had taken possession of it along with the goods of the informant. On 27.01.2018 at 04:30 PM, when the informant wanted to speak to the petitioner with regard to the restaurant, she was abused by the petitioner. The petitioner also did maar peet and tried to outrage her modesty. After investigation, charge-sheet was submitted and cognizance taken on 20.09.2018, which is the basis of the case. It is impugned herein. 4. Learned counsel for the petitioner would submit that the entire prosecution is based on mala fide; no offence, as stated has been committed; the FIR is false; she would raise the following points in her submission:- (i) Soon after lodging of the FIR, the informant had given an affidavit during investigation that inadvertently the FIR has been lodged. Now, she does not want to prosecute the case. Not only this, during the pendency of the case, on 04.01.2019, the informant filed an affidavit in the court to the effect that she has no objection, if the petitioner is granted bail because they had amicably settled the dispute. (ii) The FIR is delayed by one day. (iii) The place of alleged occurrence is crowed place and there is no independent witness. (iv) A civil suit had already been pending with regard to the restaurant-in-question, therefore, no offence, as such is made out. 5. In support of the contention, learned counsel has placed reliance on the principles of law as laid down in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335. (iv) A civil suit had already been pending with regard to the restaurant-in-question, therefore, no offence, as such is made out. 5. In support of the contention, learned counsel has placed reliance on the principles of law as laid down in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335. In the case of Bhajan Lal (supra), the Hon’ble Supreme Court has illustrated the list of the circumstances under which the jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (for short, “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. (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 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.” (v) Reference has also been made to the judgment in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others, 2021 SCC OnLine SC 315. In the case of Neeharika (supra), the Hon’ble Supreme Court has reiterated the principle of law, as laid down in the case of Bhajan Lal (supra) and culled up the principles on the subject. 6. On the other hand, learned State counsel would submit that after investigation charge-sheet has already been submitted in the court and the witnesses have supported the prosecution case, therefore, no interference is required. 7. Undoubtedly, if a prima facie case is made out generally no interference is warranted under Section 482 of the Code. The jurisdiction is so wide but, much guided by the principles of law, as laid down by the Hon’ble Supreme Court in the umpteen judgments. Two of which have been cited by the learned counsel for the petitioner. 7. Undoubtedly, if a prima facie case is made out generally no interference is warranted under Section 482 of the Code. The jurisdiction is so wide but, much guided by the principles of law, as laid down by the Hon’ble Supreme Court in the umpteen judgments. Two of which have been cited by the learned counsel for the petitioner. Reference has been made to few issues namely, (i) no prima facie case is made out; (ii) It is a civil dispute; (iii) the informant has given an affidavit that the FIR has been lodged due to inadvertence and (iv) mala fide. 8. Undoubtedly, if the prosecution is based on mala fide or no case is made out or it is purely civil in nature without any element of criminality, the court could be justified in making intervention in the proceedings under Section 482 of the Code. 9. In the instant case, charge has already been framed. On 29.04.2019, under Sections 323, 504 and 354-B IPC. The case is fixed for prosecution evidence. The law on this aspect has been discussed by Hon’ble Supreme Court in the case of Amit Kapoor vs. Ramesh Chander and another, (2012) 9 SCC 460 . In para 27 of the judgment, the Hon’ble Supreme Court observed as hereunder:- “27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. …………………………………………………………………… …………………………………………………………………… ……………………………………………………………………” 10. Further in the case of Asian Resufracing of Road Agency Private Limited and another vs. Central Bureau of Investigation, (2018)16 SCC 299 , the Hon’ble Supreme Court further observed that “the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter”. 11. Even if, parties entered into a compromise, it has to be verified by the Court before any order is passed on it. Even if the informant does not intend to proceed with the investigation, it per se may not be a ground to quash the proceedings. No objection to bail by the informant is also not a ground to quash the proceedings. 12. Delay in FIR is also not a ground to quash the original proceedings. It may be a matter which may find scrutiny during trial. The incident allegedly took place on 27.01.2018. It is the case that the petitioner had taken possession of the rented premises along with the articles of the informant. In her statement given during investigation, the informant has categorically reiterated the version of the FIR, as to how she was assaulted, molested and beaten up by the petitioner. She has categorically stated that in the month of December, 2017 without informing the informant, the petitioner had taken possession of the rented premises and had also taken into possession the articles, which were placed there by the informant. 13. There are other witnesses also. In fact, there is a witness called Rohit Arora. He has also stated that he was given the premises on rent by the petitioner, in the month of January, 2017 and subsequent to it, the petitioner had told that the articles belongs to the informant, which Rohit Arora returned to her. Does it mean that the shop was really taken into possession forcibly by the petitioner, as stated in the FIR? Does it mean that the shop was really taken into possession forcibly by the petitioner, as stated in the FIR? This Court is not expected to make a deeper analysis of this aspect. 14. It is true that the alleged incident took place in a crowed place but, then, in all cases, if independent witnesses are not available, the proceedings may not be quashed under Section 482 of the Code. It would also be a matter of scrutiny during trial. 15. Reference has been made to the civil suits but, pendency of civil suits in all cases may not be a ground to quash the proceedings if the FIR discloses commission of any offence. In the instant case, the FIR discloses commission of cognizable offence. After investigation charge-sheet has been submitted and charges framed. There is no such error of law which may warrant interference in this proceeding. Accordingly, the petition deserves to be dismissed. 16. The petition is dismissed.