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2022 DIGILAW 38 (UTT)

Govind Singh Bisht v. State of Uttarakhand

2022-03-08

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. Challenge in this petition is made to the charge sheet dated 06.10.2020, summoning order dated 31.10.2020 as well as the entire proceedings of Criminal Case No. 164 of 2020, State Vs. Deepak Singh Bisht and others, under Sections 269, 270, 34, 420, 467, 468 and 471 IPC and Section 60/72 of Uttar Pradesh Excise Act, 1910, pending in the court of Judicial Magistrate, Dwarahat, District Almora (for short, “the case”). 2. Heard learned counsel for the parties and perused the record. 3. The case is based on an FIR lodged on 10.07.2020, at Police Station Chaukhutiya, District Almora. According to it, on that date, at 11:19 late in the evening, the police patrolling party intercepted a vehicle, but the vehicle did not stop. The police party informed it to the another police party. In order to stop the vehicle, the another police party parked their vehicle on the mid of the road. They stopped the vehicle. But a person jumped out of it and taking advantage of dark started running. The driver of the vehicle was arrested. There were about 149 boxes of liquor in the vehicle. Certain documents were produced, which were found to be forged. The person who ran away from the vehicle was chased by Constable Deepak Kumar. On return, he revealed that the person who jumped from the vehicle and ran away was the petitioner, who was earlier working as Salesman at Masi wine shop. Based on this FIR, after investigation, charge sheet has been submitted against the petitioner and others. On 31.10.2021, cognizance has been taken and the petitioner has also been summoned to answer the accusations. It is impugned herein. 4. Learned counsel appearing for the petitioner raised the following points in his submission:- (i) The petitioner is not named in the FIR. (ii) Had Constable Deepak Kumar spotted the petitioner when he allegedly chased him, the petitioner would have been named in the FIR? (iii) Constable Deepak Kumar is the Police Constable. He is an interested witness. (iv) The vehicle intercepted by the police does not belong to the petitioner. (v) There is no evidence, which may even indicate that the intercepted vehicle was ever hired by the petitioner. (vi) If co-accused has stated that the petitioner forged the document, such statement of the co-accused may not be read into evidence. He is an interested witness. (iv) The vehicle intercepted by the police does not belong to the petitioner. (v) There is no evidence, which may even indicate that the intercepted vehicle was ever hired by the petitioner. (vi) If co-accused has stated that the petitioner forged the document, such statement of the co-accused may not be read into evidence. It does not, in any manner implicate the petitioner. 5. Learned counsel for the petitioner would submit that, in fact, prima facie, no offence is made out against the petitioner. Therefore, the instant petition deserves to be dismissed. 6. On the other hand, learned State counsel would submit that huge quantity of liquor was recovered by the police in the midnight. The petitioner ran away from the spot. The petitioner was identified by Constable Deepak Kumar. The Constable Deepak Kumar had old acquaintance with the petitioner because Constable Deepak Kumar has stated that the petitioner was working in the wine shop at Masi as a Salesman. Learned counsel has also referred to the statement of Abhishek Tomar, the Principal of a school, to argue that the seal of the Principal, according to this witness, was misused either by the petitioner or by Girish Tiwari, who were residing in his neighbour. It is argued that prima facie case is made out and there is no reason to interfere in the matter. 7. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”). The jurisdiction is not much wide but guided by the principles of law, 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, laid down the circumstance, under which this jurisdiction may be exercised. The Hon’ble Court observed as hereunder:- “102. The jurisdiction is not much wide but guided by the principles of law, 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, laid down the circumstance, under which this jurisdiction may be exercised. The Hon’ble 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. (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.” 8. At the stage of 482 of the Code, the Court is not expected to appreciate, evaluate or scrutinize the evidence. Mini trial at this stage is not expected of. If prima facie, case is made out generally interference is not warranted. 9. It is true that in the FIR, the petitioner has not been named. It is also true that in the FIR which is based on the recovery memo, it is recorded that Constable Deepak Kumar and Constable Ajeet Kumar chased the person, who ran away from the spot. On return, Constable Deepak Kumar had told that the person who ran away was Bablu, the Salesman in the Masi wine shop. During the course of argument, it is admitted that the petitioner is also known as Bablu. 10. Why the petitioner @ Bablu has not been named in the FIR, perhaps the Police Officer who recorded the FIR may be in a position to reveal it. But, the introduction of the name of the petitioner in the recovery memo is not something which was done subsequent to the lodging of the FIR. It is the case in the FIR that the petitioner ran away when the truck was intercepted. He was identified by a Police Constable. 11. But, the introduction of the name of the petitioner in the recovery memo is not something which was done subsequent to the lodging of the FIR. It is the case in the FIR that the petitioner ran away when the truck was intercepted. He was identified by a Police Constable. 11. It may be noted that the vehicle had once defied the signals given by the police party. The other police party could manage to stop the vehicle. 12. It is the prosecution case that the liquor was being transported on forged documents. They had seal of a school. The Principal of the School, Abhishek Tomar had told it to the Investigating Officer that the petitioner is his neighbour. He might have used his office seal which was lying in his residence, because due to COVID-19 he was working from his residence. 13. Whether the petitioner was involved? Whether the statement of Constable Deepak Kumar is reliable? Whether Constable Deepak Kumar had, in fact, identified the petitioner, when he allegedly ran away from the place of incident? Whether the official seal of the Principal Abhishek Tomar was used by the petitioner for forging the documents so as to transport the liquor? All these questions will fall for scrutiny during trial. They would require an answer after scrutiny of the evidence. Such scrutiny may not be done at this stage. 14. Therefore, this Court is of the view that there is no reason to make any interference. Accordingly, the petition deserves to be dismissed. 15. The petition is dismissed.