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2022 DIGILAW 286 (UTT)

Ajay Kumar v. State of Uttarakhand

2022-09-05

SANJAYA KUMAR MISHRA

body2022
ORDER : 1. By filing this writ application, the petitioner has prayed for the following reliefs: ) Issue a writ, order or direction against the respondent no. 2 for registering a false First Information Report No. 0073/2022 dated 18.08.2022 under Sections 376(2)(g) of IPC, registered at Police Station-Banbasa, District- Champawat naming the petitioner at the behest of complainant/respondent no. 3. (ii) Issue a writ, order or direction to respondent no. 1 against the respondent no. 2 and respondent no. 3 for respective consequential disciplinary as well as criminal law at the behest of complainant/respondent no. 3 naming the petitioner deliberately falsely in the First Information Report No. 0073/2022 dated 18.08.2022 under sections 376(2)(g) of IPC registered at Police Station-Banbasa, District- Champawat. (iii) Issue a writ order or directions in the nature of certiorari to call for the record and to quash the impugned First Information Report No. 0073/2022 dated 18.08.2022 under sections 376(2)(g) of IPC registered at Police Station- Banbasa, District-Champawat. (iv) Issue a writ, order or direction in the nature of mandamus commanding the respondent nos. 1 & 2 not to harass or take any coercive measure against the petitioner in pursuance of the aforesaid first information report dated 18.08.2022. (v) Issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case. (vi) Award costs of the petition to the petitioner. 2. The petitioner has been named in the FIR and the complainant alleges that a gang rape has been committed upon her by the petitioner and two others. Learned counsel for the petitioner would submit that the allegations, made in the FIR, are false and at the relevant time he was present in Nepal in connection with his business and for that he has submitted a Compact Disk to be viewed by this Court. However, he admitted that he has not complied the requirement of Section 65B of the Indian Evidence Act, as far as this electronic evidence is concerned. 3. It is stated by the leaned A.G.A. on behalf of the State that though initially the offence was registered under section 376(2)(g) and 5(g) of the Indian Penal Code, later on, realizing the fact that a wrong section has been quoted in the FIR, the offence under Section 376 (d) has been substituted for the offence under section 376(2)(g) of the IPC. 4. 4. Keeping in view, it is only a clerical mistake, this Court is not going to give much importance to it as in the meantime, the investigation of the case is proceeding regarding commission of offence upon Section 376(d) of the IPC. The learned A.G.A. also would submit that since the petitioner is absconding an order under Section 82 of the Cr.P.C. has already been issued on 23.08.2022 by the Additional Chief Judicial Magistrate, Champawat. 5. In a writ proceeding for issuance of a writ of certiorari for quashing of the FIR, it is not the duty of the court to take into consideration the plea of alibi and quash the FIR on that ground. The question of alibi is essentially a part of investigation and the trial of the case. In a writ certiorari generally such evidences are not taken into consideration unless an exceptional circumstance is made out to look into the materials other than the materials available on the case diary. 6. Moreover, in the case of State of Orissa vs. Devendra Nath Padhi, 2005 (1) SCC 568 , the Hon’ble Supreme Court has held that while considering whether to quash an FIR, cognizance etc. or the investigation, the court in exercising jurisdiction 482 of the Code has to look into all those documents, which has relied upon the Investigating Officer. A document relied upon by the accused is not to be looked into. 7. The Hon’ble Supreme Court further in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others reported in 2021 SCC Online SC 315 has given guidelines, which should be considered by the High Court while deciding the matters under Section 482 of the Cr.P.C. or under Article 226 of the Constitution of India regarding quashing of the FIR. State of Maharashtra and Others reported in 2021 SCC Online SC 315 has given guidelines, which should be considered by the High Court while deciding the matters under Section 482 of the Cr.P.C. or under Article 226 of the Constitution of India regarding quashing of the FIR. We consider it appropriate to quote the same, as follows : Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 8. The learned counsel for the petitioner would rely upon the case of D.K. Basu; Ashok K. Johari vs. State of West Bengal, State of Uttar Pradesh, reported in AIR 1997 SC 610 . In the case of D.K. Basu (supra), the Hon’ble Supreme Court was dwelling upon the question of arrest and death in police lock-ups and custody and it has nothing to do with quashing of the FIR. 9. In the case of D.K. Basu (supra), the Hon’ble Supreme Court was dwelling upon the question of arrest and death in police lock-ups and custody and it has nothing to do with quashing of the FIR. 9. In the case of Joginder Kumar vs. State of Uttar Pradesh reported in (1994) 4 SCC 260 , the Hon’ble Supreme Court has addressed itself to answer whether the Trial Court can, at the time of framing of charge, consider the material filed by the accused. It is a three Bench judgment and at paragraph-29 the Hon’ble Supreme Court has already held that the jurisdiction under Section 91 of the Code when invoked by the accused, necessity and desirability have to be seen by the court in context of the purpose- investigation, enquiry, trial and other proceedings, it would have to be borne in mind that law does not permit a roving and fishing enquiry. At paragraph-25 of the aforesaid judgment, the Hon’ble Supreme Court has held any document and others things envisaged under the aforesaid provision can be ordered to be produced on findings that the same is necessary or desirable for the purpose of investigation, enquiry or trial under the Code. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when the prayer is made for the prosecution. If any document, the Hon’ble Supreme Court further held, is necessary or desirable for the defense of the accused, the question under Section 91 at the initial stage of framing a charge would not arise since the defense of the accused is not relevant at that stage. 10. The Hon’ble Supreme Court further held that when the section refers to investigation, enquiry, trial or other proceeding, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at the time of the stages mentioned in the section. The Hon’ble Apex Court would further observed in so far as the accused is concerned, he is entitled to seek the order under Section 91 would ordinarily not come till the stage of defense. The Hon’ble Apex Court would further observed in so far as the accused is concerned, he is entitled to seek the order under Section 91 would ordinarily not come till the stage of defense. When the section talks of documents being necessary and desirable, it is implicit that necessary and desirability is to be examined considering the state when such a prayer for summoning and production is made and the party, who makes it; whether police or the accused. If under section 227 of the Constitution, what is necessary and relevant is only the record produced in terms of Section 173 of the Code, the accused cannot at the stage invoke Section 91 to seek production of any document to show his innocence. The Hon’ble Supreme Court further held that under Section 91 summons for production of document can be used by the Court and under a written order an Officer-in-charge of the Police Station can also direct the production thereof. Section 61 does not confer, the Hon’ble Supreme Court further held, any right of the accused to produce document in his possession to prove his defense. Section 91 presupposes that whenever document is not produced processing initiated for complying production thereof. In fact, the reported judgment of the Hon’ble Supreme Court militates against the very case of the petitioner where the petitioner was to establish his innocence by establishing the plea of alibi at a stage where the court is in seisin of the matter under Article 226 of the Constitution in a certiorari jurisdiction for quashing of the FIR. In our opinion that such a course is not open to the petitioner. 11. The third judgment, i.e. cited by the learned counsel for the petitioner, Arnesh Kumar vs. State of Bihar and Another reported in 2014 (8) SCC 273 is regarding the grant of bail and the purport and consequence of Section 41 and 41A of the Code of Criminal Procedure after the amendment. The said case is not applicable to this case, as admittedly, the offence under Section 376D or that matter under Section 376 of the Code is not an offence, which is punishable with a term of seven years imprisonment or less. 12. In case of Hari Krishna Mandir Trust vs. State of Maharashtra reported in (2020) 9 SCC 356 , the case relied upon by the learned counsel for the petitioner. 12. In case of Hari Krishna Mandir Trust vs. State of Maharashtra reported in (2020) 9 SCC 356 , the case relied upon by the learned counsel for the petitioner. The said judgment is not on quashing of the FIR. It relates to the certain disputed questions regarding Maharashtra Regional and Town Planning Act, 1966. 13. Thus, this Court is of the opinion that the petitioner has not made out a case even for issuance of notice as this Court is of the considered opinion that at the stage of a prayer for quashing of the FIR, a robbing and fishing expedition cannot be undertaken by the High Court in exercise of the jurisdiction under Article 226 of the Constitution and decide on the question of alibi. Moreover, the present petitioner has been specifically named in the FIR as to be one of the person, who committed gang rape on the complainant. This Court finds no reason to entertain the writ application. 14. The writ application is, therefore, dismissed in lemine.