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2022 DIGILAW 897 (HP)

Naresh Kumar v. State of H. P.

2022-12-30

SATYEN VAIDYA

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JUDGMENT : Satyen Vaidya, J. Heard. 2. By way of instant petition, petitioners have prayed for following substantive reliefs:- 1. That the FIR No. 23, dated 05.02.2017, Annexure P-1, registered with Police Station Theog, Distt. Shimla, H.P. against the present petitioners under Section 448, 323, 325 and Section 34 of IPC and all further proceedings including judicial proceedings, if any, arising out of it may be quashed and set aside. 2. That in alternate Annexure P-1 qua petitioner No.3 be quashed and set aside being not present at place of occurrence and was under training of Patwari at Kasauli during that period in view of the annexure P- in the end of justice and fair play. 3. That respondent No. 1 may be directed to take proper disciplinary action and other appropriate criminal proceedings against the official respondents especially respondent No. 3 for misusing their official powers in contravention of the law of the land and for further unduly harassing and intimidating the petitioners and further for subjecting the petitioners to wrongful confinement and illegal prosecution. 4. That the respondent State may be directed to institute appropriate criminal proceedings against all the private respondents for the illegal act and conduct committed by the said respondents as mentioned in the petitioners. 5. That the respondents may be directed to grant suitable compensation to the petitioners from the pockets of erring officials for which the petitioners had to suffer on account of illegal acts and conduct of the respondent. 3. Brief facts necessary for adjudication of the petition are that two cross FIRs bearing Nos. 22/2017 and 23/2017 came to be registered at Police Station Theog, District Shimla, H.P. on 05.02.2017. In FIR No. 22/2017, petitioner No.1 was the complainant and in FIR No. 23/2017, respondent No. 4 was the complainant. The dispute had arisen with respect to possession of Shop No.13, Vegetable Market, Theog. Both the sides had levelled cross allegations. On one hand, petitioner No. 1 claimed possession on the shop in question, on the other, respondent No. 4 claimed the same to be in his possession. The allegations of forcible dispossession and infliction of injuries were also levelled against each other. 4. Petitioners have prayed for quashing of FIR No. 23/2017, on the grounds that the same was false. Their possession on the Shop No.13 situated in Vegetable Market, Theog, was established. The allegations of forcible dispossession and infliction of injuries were also levelled against each other. 4. Petitioners have prayed for quashing of FIR No. 23/2017, on the grounds that the same was false. Their possession on the Shop No.13 situated in Vegetable Market, Theog, was established. The FIR had been lodged against them by police in connivance with respondent No. 4. It has further been submitted on behalf of the petitioners that petitioner No. 3 was undergoing training on the date of alleged occurrence at Kasauli and was not present on the spot. Petitioner No. 2 is stated to be handicapped. It has further been alleged that FIR No. 22/2017 recorded at the instance of petitioner No. 1 has been investigated and cancellation report has been presented by the police in the Court. 5. It is revealed from the replies filed on behalf of the respondents that after investigation in FIR No. 23/2017, police found prima facie case against petitioners and challan was presented. Petitioners were charged and prosecution evidence is in the process being recorded. 6. The instant petition was filed by the petitioners on 15.01.2021. Noticeably, in para-8(v), petitioners themselves have averred that respondent No. 4 and his wife had been examined as prosecution witnesses before the date of filing of instant petition. Meaning thereby that petitioners were aware about the fact that the Court was already seized of the matter. It had framed the charge against the petitioners after taking cognizance. Still, no factual foundation was laid in the petition to challenge the material collected by the Investigating Agency during investigation as also the order passed by learned Judicial Magistrate First Class, whereby the cognizance was taken and subsequently charges were framed. Petitioners have in their entire petition raised objections with respect to the falsity of the facts, on the basis of which, FIR No. 23/2017 was registered. 7. Record reveals that the petitioners has not placed on record even the order passed by learned Judicial Magistrate First Class, whereby the cognizance was taken. The order framing the charge has also not been placed on record. Though, a prayer has been made to quash further proceedings including judicial proceedings, if any, arising out of FIR No. 23/2017, but petition is completely silent, as to on what basis, subsequent proceedings are sought to be quashed without laying any challenge thereto in accordance with law. 8. The order framing the charge has also not been placed on record. Though, a prayer has been made to quash further proceedings including judicial proceedings, if any, arising out of FIR No. 23/2017, but petition is completely silent, as to on what basis, subsequent proceedings are sought to be quashed without laying any challenge thereto in accordance with law. 8. In above noticed circumstances, the contents of FIR No. 23/2017 losses much significance. FIR is not meant to contain all the details. It is only recording of information in respect of the cognizable offence. The contents of FIR can only be skeleton narration of facts. It is only after investigation that the police arrives at some conclusion as to existence of a case against the accused or otherwise. 9. In Kaptain Singh Vs. State of Uttar Pradesh and others (2021) 9 SCC 35 , the Apex Court has held as under:- 9.1 At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to hereinabove. 9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C. 10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta – Accused No.2 and Munni Devi under which according to Accused no.2 - Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs.25 lakhs and with no reference to payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs out of which Rs.25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused No.2. Whether Rs.25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs.25 lakhs as mentioned in the joint notarized affidavit dated 27.10.2010. Whether Rs.25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs.25 lakhs as mentioned in the joint notarized affidavit dated 27.10.2010. It is also required to be considered that the first agreement to sell in which Rs.25 lakhs is stated to be sale consideration and there is reference to the payment of Rs.10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation. 10. Keeping in view the above noticed dictum that FIR in question cannot be quashed, at this stage, in absence of any specific challenge to the investigation conducted by police and also orders passed by Court of Competent jurisdiction, whereby firstly, cognizance was taken and thereafter, the charges were framed. During the course of hearing, the Court was informed by learned counsel for respondent No. 4 that most of the prosecution witnesses have already been examined in the case. This Court while exercising jurisdiction under Section 482 of Cr.P.C will not hold any inquiry into the factual aspect of the matter. The facts alleged in the petition and also canvassed on behalf of the petitioners by learned counsel representing him are subject of trial and hence, cannot be gone into by this Court, at this stage. 11. In view of above discussion, there is no merit in this petition and the same is accordingly dismissed. Pending miscellaneous applications, if any, shall also stand disposed of.