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2023 DIGILAW 1309 (RAJ)

Phool Singh S/o Salak Singh v. State of Rajasthan

2023-07-06

RAJENDRA PRAKASH SONI

body2023
ORDER : 1. These petitions have been filed by the petitioners-accused under Section 482 of the Criminal Procedure Code to quash the FIR No. 279/2022 registered at Sukher Police Station, District Udaipur for the offences under Sections 143, 341, 323, 307, 447, 427, 379, 354 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(1)(w)(i) and Section 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The factual matrix are that the respondent no. 2 Deepak Goad lodged the present F.I.R. against the petitioners and some others alleging, inter-alia, that complainant is a driver of one Mahendra Surana. A function of Prashadi and Plantation was proposed to be organized by Mahendra Surana at his land situated in Raya Village on 15.05.2022. In this regard, complainant, his employer and family members of the employer went to the said place in a car on 13.05.2022. While the preparations of above function were undergoing, some people namely Phool Singh, Kan Singh, Mohabbat Singh, Narayan Singh, Bhagwant Singh, Prem Singh, Salam Singh, Khuman Singh, Inder Singh, Rajendra Sali Advocate, Niranjan Singh, Khushpal Singh and Dalpat Singh were roaming around there in the afternoon. They started abusing and harassing the complainant’s employer and his family. However, because of forthcoming function his employer did not take any action against these persons. Thereafter in the midnight of 13.05.2022 and 14.05.2022 above named persons came with rods, swords, sticks, knifes and other deadly weapons and started giving beating to the people present there including the security personnels deputed/employed on the spot by Mahendra Surana. In the course of quarrel Anju Shekhawat, Usha Meghwal, Mukesh Kumar Joshi, Sumer Singh Jala, Nirmal Nagda and 2-3 other persons received injuries. When accused person came to know that Usha Meghwal belongs to a scheduled caste they started abusing her in the name of caste and outraged modesty of Anju Shekhawat and Usha Meghwal. They also damaged the property lying over the spot including coolers, water camper, motor-bike, tent and light etc. They stole mobile phones and one gold chain also while leaving the place of occurrence. After lodging of the said FIR police commenced investigation which is still pending. The petitioners have approached this Court to quash the instant F.I.R. 3. They also damaged the property lying over the spot including coolers, water camper, motor-bike, tent and light etc. They stole mobile phones and one gold chain also while leaving the place of occurrence. After lodging of the said FIR police commenced investigation which is still pending. The petitioners have approached this Court to quash the instant F.I.R. 3. Shri C.S. Kotwani, learned counsel for the petitioners has vehemently contended that the impugned FIR has been lodged by the complainant only with intention to harass the petitioners; that investigation against the petitioners in the present F.I.R. is illegal which amounts to gross abuse of process of the Court; that one of the accused Salam Singh, who was named in the F.I.R. died way back in the year 2005, however, he has been stated as one of the person present on the spot of occurrence and to be among the perpetrators of the incident, which proves this case to be false and concocted right from its very inception. 4. It is his further submission that there exists a dispute between the petitioner no. 5 Prem Singh S/o Salam Singh and Mahendra Surana regarding the rights, demarcation and possession over a piece of land. Mahendra Surana is employer of the complainant. The complainant Deepak Goad is driver of Mahendra Surana. Only with intention to usurp and grab the land belonging to the petitioner no. 5, Mahendra Surana, has got registered a false F.I.R. through his driver. The proceedings initiated by virtue of lodging the instant FIR is nothing but a sheer abuse of process of law. 5. It is his further submission that the civil rights have been converted into a criminal offence by resorting to pressure tactics and by taking the help of the police. The present F.I.R. has been filed while giving criminal colour to a civil dispute pertaining to the land. It is further argued that in the FIR, the complainant had not described any land in possession of his employer, nor he has alleged that any of the petitioners have committed “criminal trespass” on that land or over any specific piece of land. There is not even an iota of description in the FIR regarding the elements of the offence of Section 447 of the IPC. There is not even an iota of description in the FIR regarding the elements of the offence of Section 447 of the IPC. As a matter of fact, the further proceedings in the present F.I.R. are absolutely unwarranted and from the material collected right from the very initial stage of investigation, this fact is clearly on record that no offence is made out against the petitioners. Therefore, the impugned FIR for all the alleged offences cannot be maintained against the petitioners. 6. It is his further contention that in the light of the facts revealed in the statements of the injured persons, female victims of members of SC/ST community and investigation conducted so far, none of the ingredients of the offences alleged against the petitioners are attracted. In spite of the fact that there is no material against the petitioners and the fact that investigation has been conducted twice in the matter resulting into negative report, despite this, the F.I.R. is being kept alive on some pretext or the other. The higher police officers, while taking special interest in the matter, the investigating officers are being changed again and again even in the third inning of the investigation. 7. It is his further submission that under what circumstances, the power under Section 482 of the Cr.P.C. is to be exercised, has been illustrated by Hon’ble the Apex Court in the case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335. He, therefore, submitted that the instant Misc. Petitions deserve to be accepted and the above mentioned FIR registered against the petitioners deserves to be quashed. 8. Per contra, learned counsel appearing for the respondent no. 1 State has filed a status/factual report. He vehemently, while reiterating the contents of the complaint and other material, argued that prima facie material as against the petitioners is available on record. Apart from reiterating what is stated in the status report and in various other proceedings, he submitted that the original complainant Deepak Goad and his employer Mahendra Surana were examined in this case, who corroborated the contents of the FIR; that one of the accused namely Vishal Nalwaya has already been arrested and enlarged on bail; that the petitioners along with other persons had trespassed into the agricultural land of employer of the complainant and have destroyed some of the property lying over there. Therefore, prima facie case is made out against the petitioners. However, the investigation in this case is under progress by the police and the result of that is to be filed shortly. He submitted that the investigation in the present case is being carried out in fair manner and in accordance with law. On this ground, he prayed to dismiss these petitions. 9. Shri Abhshek Mehta, learned counsel for the complainant has opposed the prayer requesting quashing of the FIR and submits that the contents of the complaint and other material available on record prima-facie show that alleged offences have been committed by the petitioners. They, by trespassing into the property which was in the possession of respondent no. 2 have committed the alleged offences. They also damaged the property lying there. It is his further submission that CCTV footage and other electronic material, substantiate the contention of the complainant. Two females, who were members of scheduled caste/tribes have not only been abused in the name of their caste but their modesty have also been outraged by the petitioners. 10. It is further submitted that when prima facie offences have been made out, then under such circumstances the criminal proceedings or the FIR cannot be quashed. The Court can exercise the power under Section 482 of the Cr.P.C. only if, there is abuse of process of law. This aspect has to be considered and appreciated only after complete investigation and the material collected in the investigation. On the strength of above arguments, learned Public Prosecutor and learned counsel for the respondent no. 2 have prayed for dismissal of instant criminal miscellaneous petitions. 11. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and peruse the entire material available on record. 12. Before considering the factual aspect of this case, it would be apt to look into the law prevailing in the matter. Hon’ble the Apex Court, time and again has issued directions and guidelines as to how and in what manner the inherent power under Section 482 of Cr.P.C. has to be exercised. 12. Before considering the factual aspect of this case, it would be apt to look into the law prevailing in the matter. Hon’ble the Apex Court, time and again has issued directions and guidelines as to how and in what manner the inherent power under Section 482 of Cr.P.C. has to be exercised. In that light, it has been observed in catena of decisions that the inherent jurisdiction is the wide power and it has to be exercised sparingly, carefully and with great caution to give effect to an order under the Code to prevent abuse of process of the Court and to otherwise secure the ends of justice. In the case of Bhajan Lal and others the salient features to exercise the power under Section 482 of Cr.P.C. have been laid down. For the purpose of brevity, I quote paragraph 102 which reads as under: “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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (i) 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. (ii) 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. (ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) 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. (vii) 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.” 13. In the light of above principles laid down by Hon’ble the Apex Court, it appears that the First Information Report was lodged by one Deepak Goad. He is neither an injured person nor a victim of the alleged incident. The FIR was lodged on behalf of the injured persons, female victims of SC/ST community and his employer Mr. Mahendra Surana, who was a de-facto complainant behind the scene. The FIR was registered for the offences under Sections 143, 341, 323, 307, 447, 427, 379, 354 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(1)(w)(i) and Section 3(2)(va) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. Mahendra Surana, who was a de-facto complainant behind the scene. The FIR was registered for the offences under Sections 143, 341, 323, 307, 447, 427, 379, 354 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(1)(w)(i) and Section 3(2)(va) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. The different salient facts of the complaint can be classified as follows: (i) that the accused were abusing and threatening to kill the employer of the complainant Mr. Mahendra Surana, his son Kapil Surana and other family members. On this, the employer said that let them do it, we do not have to do anything. (ii) that at 2:00 a.m., about hundred people started fighting with the complainant and his companions with swords, lathis, bars and other weapons due to which Anju Shekhawat, Usha Meghwal, Mukesh Joshi, Sumer Singh, Nirmal Nagda and 2-3 other persons got serious and minor injuries. (iii) that the accused insulted Anju Shekhawat and Usha Meghwal by caste abuses, tore their clothes, pressed their breast and attempted to rape them. (iv) that the accused vandalised the cooler, water camper, motor-cycle, iron pillar, tent, lights, side glass of a car of the complainant. They also snatched away mobile phone, purse, gold chain of Usha Meghwal and Mukesh Joshi and threaten them to kill while leaving the spot. (v) that complainant made a video of the incident. Photographs were also taken which he would be submitting during the investigation. 14. Perusal of the FIR shows that complainant had not alleged any allegation related to the ingredients of the offence punishable under Section 447 of the IPC in the First Information Report. “Criminal trespass” on any land was not alleged against any of the petitioner. 15. As per the First Information Report, the complainant was reluctant to pursue the incident of the afternoon and it was mentioned in the FIR itself that he had nothing to do with the abuse meted out to him in the noon. 16. After registration of the impugned FIR, police started investigation and during the course of investigation several persons were interrogated including injured Sumer Singh Jala, Nirmal Nagda, Vikram Singh, Suresh Salvi, Yogesh Swami as well as alleged female victims Anju Shekhawat and Usha Meghwal. Other witnesses namely Mukesh Kumar Joshi, Deepak Singh, Arjun Singh and Dilip Singh were also examined. 16. After registration of the impugned FIR, police started investigation and during the course of investigation several persons were interrogated including injured Sumer Singh Jala, Nirmal Nagda, Vikram Singh, Suresh Salvi, Yogesh Swami as well as alleged female victims Anju Shekhawat and Usha Meghwal. Other witnesses namely Mukesh Kumar Joshi, Deepak Singh, Arjun Singh and Dilip Singh were also examined. Statements of Anju Shekhawat and Usha Meghwal were also got recorded under Section 164 of the Criminal Procedure Code. 17. All these witnesses in their statements denied the occurrence as described in the First Information Report. Apart from this, all these witnesses also submitted their respective affidavits to the Investigating Officer mentioning therein that: “Mahendra Surana and his son Kapil Surana asked for some security personnel from a firm called “Ganga Security.” He took those security personnel to his land. They all were part of security personnel team. A JCB and about 50-60 labourers were also brought there by Mahendra Surana. Those labourers tried to capture some land by removing a 600 meter long boundary wall which was years old. During this an elderly person came there and interrupted Mahendra Surana from taking possession of his land stating that he had been in possession for the last 40 years. Mahendra Surana while threatening, forced him to leave the spot. He also instructed the people of the security team to stay there for the night and he left from the site.” “During the night, the people of the security team quarreled with each other after consuming alcohol. There was a fight and vandalism among them which also damaged some goods and materials lying over there, but the atmosphere was pacified by intervening. Team members ended the matter by apologizing to each other. During the quarrel purse and mobiles were lost in the night but gold chain of Mukesh Joshi was not lost.” “Taking advantage of this incident so occurred, Mahendra Surana had lodged the instant FIR through his driver Deepak Goad, only to serve his personal interests. Any third party people did not assaulted the security personnel team nor vandalized any goods.” “Security personnel Usha Meghwal and Anju Shekhawat have also made same statements stating that there was no incident like assault, outraging of their modesty or attempt to rape with them nor were they insulted or abused in the name of their caste. Any third party people did not assaulted the security personnel team nor vandalized any goods.” “Security personnel Usha Meghwal and Anju Shekhawat have also made same statements stating that there was no incident like assault, outraging of their modesty or attempt to rape with them nor were they insulted or abused in the name of their caste. Mahendra Surana said to persons of security team that he would file a F.I.R. regarding their injuries and caste related insult, but people of the security team flatly refused him to do so.” 18. The deposition of so called injured and eye-witnesses and perusal of record reveals that apart from other offences, the First Information Report was straight away registered for the offence under Section 307 of the Indian Penal Code, without any such injury to any person being life threatening. This fact clearly reflects the intention of the complainant and police registering the F.I.R. 19. The first Investigating Officer, after investigation found the allegations to be false and recommended, on 07.09.2022, for “negative final report” referring the case as “mistake of the fact.” 20. Vide letter dated 31.10.2022, the Superintendent of Police nominated a second Investigating Officer and directed him to further investigate into the matter on three additional specific points. 21. Now, the de-facto complainant Mahendra Surana came forward in the picture, who had been working behind the scenes till then. A complaint dated 25.05.2022 of him was taken on record containing almost the same facts and incident as mentioned in the FIR lodged by Deepak Goad. Thereafter, a fourth party “Shri Mahaveer Sena Sansthan” named social organization, which had nothing to do with the incident also submitted a complaint regarding the same incident and stating land dispute between the parties. 22. Mahendra Surana, in his above complaint, demanded detail investigation on some suggested new points stating the detailed flaws of the investigation conducted so far. He also mentioned that disputed land belongs to him. 23. The matter was further investigated. The second Investigating Officer also proposed “negative final report” and the Superintendent of Police, agreeing with the conclusion of the second Investigating Officer, vide a letter dated 31.01.2023 directed the SHO, Police Station Sukher to submit the negative final report in the Court. 24. Surprisingly, the investigation was again given a new twist by the higher police officers. The second Investigating Officer also proposed “negative final report” and the Superintendent of Police, agreeing with the conclusion of the second Investigating Officer, vide a letter dated 31.01.2023 directed the SHO, Police Station Sukher to submit the negative final report in the Court. 24. Surprisingly, the investigation was again given a new twist by the higher police officers. Vide order dated 11.02.2023, narrating simply the seriousness of the matter, Superintendent of Police, suo moto constituted a 12 member Special Investigation Team (SIT), without existence of any new ground. The Incharge of the SIT was made a same Police Officer who had already proposed negative final report after investigating the case as second Investigating Officer. 25. On 14.02.2023 i.e. three days after constitution of S.I.T. changing the Investigating Officer, again a single Investigating Officer namely Circle Officer (City) West, District Udaipur was assigned investigation and he was suggested a total of 14 specific points on which he was directed to conduct further investigation. 26. It is worth mentioning here that when all the ocular and substantial evidences related to the alleged incident had already come on record negatively, yet investigation was directed in the context of corroborative and circumstantial evidence. 27. After a month, vide order dated 13.03.2023 the Superintendent of Police again formed a Special Investigation Team consisting of four members. Only two days after that vide order dated 15.03.2023 this team was reconstituted by re-shuffle. The S.P. has kept on changing Investigating Officers one after another for no good reasons whatsoever. 28. It is further worth mentioning that in return response to the notice under Section 91 of the Criminal Procedure Code given to the original complainant Deepak Goad, he had made it clear that he did not have any photographs and videography of the damaged goods and car. In spite of that, an “analysis memo” of video was prepared stating that said video had been received through an “informer” and after analyzing it was taken on record, flouting the provisions of Section 65B of the Indian Evidence Act. 29. In spite of that, an “analysis memo” of video was prepared stating that said video had been received through an “informer” and after analyzing it was taken on record, flouting the provisions of Section 65B of the Indian Evidence Act. 29. A perusal of the record reveals that while ocular evidence has already come on record in negative form, after the investigation in the very first round of investigation as also in the second round, even after that investigation is now diverted to collect circumstantial and corroborative evidence such as transportation of the alleged accused, vehicle used in the transport, payment of fare of the vehicles, mutual call details of the accused, record of the SIM card and criminal conspiracy has been collected and further efforts for the same are still going on. As stated earlier, the police could be said to have made a mockery of the entire investigation. If alleged incident had taken place, the injured and female victims have come forward and lodged a F.I.R. for themselves. In this view of the matter, the instant F.I.R. is totally vague. In the other words, in spite of the fact their investigation has been completed twice in the matter, still it is being kept alive on one pretext or the other which is like trying to flog a dead horse. 30. Furthermore, on 13.05.2022 i.e. one day prior to the date of present FIR, petitioner no. 5 Prem Singh had filed a FIR No. 276/2022 and that was submitted on the place of occurrence itself. It was alleged therein by Prem Singh that Arazi No. 49 belongs to him and he is in possession of it for the last 45 years. There is a pucca house built with boundary wall all around and a gate. Mahendra Surana and Kapil Surana started vandalizing his property through 60-70 people and asked him to leave from the land. After lodging of above F.I.R. by Prem Singh, Mahendra Surana has lodged the present F.I.R. No. 279/2022 through his driver Deepak Goad on 14.05.2022, the next date. 31. In view of above, this Court is of the view that the investigation which is being re-opened on one pretext or the other is nothing but sheer abuse of process of law. 32. 31. In view of above, this Court is of the view that the investigation which is being re-opened on one pretext or the other is nothing but sheer abuse of process of law. 32. Therefore, it is abundant clear from the record available that in the negative final report itself which was proposed by the first Investigating Officer, this fact had come on record that the agricultural land of Mahendra Surana and petitioner no. 5 Prem Singh are adjacent. There exists a dispute of demarcation of boundary, possession and ownership between them. Due to this dispute and enmity, Mahendra Surana had lodged instant FIR through his driver but he, suppressing the real dispute of land and giving a different colour to the matter, has lodged the present FIR. 33. It was argued by the learned counsel for the petitioner that alleged incident turns out to be false and fabricated on the very ground that it has been filed as a defence to the report lodged by petitioner Prem Singh against Mahendra Surana. The other ground is that even a dead person was arraigned as accused of causing of alleged crime which is corroborative by the fact that name of said Salam Singh is not there among the accused who were interrogated during the investigation nor the fact of his death was taken on record by the police. The investigation in this respect is completely silent which is an another example of abuse of process of law. In view of this Court, the above arguments of learned counsel for the petitioner holds water and on these grounds also the further investigation in the present FIR is clear abuse of process of law. 34. I am conscious of the fact that the Court must be very slow in interfering with the investigation at the initial stage, but when the prima facie evidence and materials available on record itself doubts the entire version of the incident as stated by the complainant and all other subsequent chain of the events and when a civil dispute is also existing between the parties, in such circumstances to allow the further investigation to continue is apparently without any justification, since, Section 482 of the Cr.P.C. is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment. 35. 35. I am of the considered opinion that the said dispute appears to be purely civil in nature and only with the intention to take revenge, a criminal complaint has been filed. 36. Keeping in view the ratio laid down in the above decision, on careful perusal of the factual matrix as well as after considering the entire record of the case and after hearing the arguments, this Court is of the opinion that the prosecution of the petitioners in the instant FIR is absolutely unjustified. There does not appear to be any justification for the FIR filed by Mahendra Surana and it seems to have been filed for oblique motive only. No useful purpose would be served in lying investigation proceedings to be continued any further. 37. This Court is further of the view that necessary ingredients for constituting offences under Sections 143, 341, 323, 307, 447, 427, 379, 354 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(1) (w)(i) and Section 3(2)(va) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not disclosed from the statements of so called injured and victims as well as investigation conducted till date. 38. Taking into consideration the above facts and circumstances, the petitioners have been successful to made out a case so as to quash the FIR and continuation of investigation would definitely amount to abuse of process of law. 39. In view of the same, these criminal petitions under Section 482 of the Cr.P.C. are allowed and the F.I.R. No. 279/2022 of Sukher Police Station, District Udaipur stands quashed. 40. The observations made in the present petitions are not going to effect the other proceedings and litigation pending between the parties.