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2023 DIGILAW 264 (UTT)

Harvinder Singh v. State of Uttarakhand

2023-04-10

RAVINDRA MAITHANI

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JUDGMENT : Ravindra Maithani, J. Petitioners seek quashing of an FIR No.270 of 2022, under Sections 223, 224 & 225 of IPC, Police Station Sitarganj, District Udham Singh Nagar and other related reliefs. 2. Heard learned counsel for the parties and perused the file. 3. Facts necessary to appreciate the controversy, briefly stated, are as follows: Petitioner no.2-Amrik Singh was under a liability to pay Rs.71,02,565/- to SBI Sitarganj; he is a defaulter. On 13.07.2022, the Revenue Team confined him in the prison, but according to the FIR, the petitioner-Amrik Singh escaped from the custody with the help of other petitioners. 4. Learned counsel for the petitioners would submit that prima facie no offence under Sections 223, 224 & 225 of IPC is made out against the petitioners. He would raise the following points in his submission:- (i) On 13.07.2022, the petitioner-Amrik Singh was apprehended by Revenue Officials, when he was in the market; he was unwell and his family was never informed. (ii) When in custody, a doctor was summoned to examine the petitioner-Amrik Singh, the doctor advised that, in case, there is some emergency, the petitioner-Amrik Singh may be brought to the hospital. iii) In the meantime, the petitioner-Amrik Singh’s health deteriorated. Both of his sons tried to contact Sub-Divisional Magistrate of the area, who directed them to the Tehsildar, by providing the telephone number of Tehsildar. (iv) The Tehsildar of the area was contacted, but he did not pick up the phone. (v) Since the condition of the petitioner-Amrik Singh was deteriorating, his sons took him to a Doctor in the midnight, who subsequently, referred the petitioner-Amrik Singh to a higher medical centre. The petitioner-Amrik Singh was admitted at Narayan Hospital and Trauma Center, Rudrapur, on the same night, he was operated; he was a heart patient. (vi) There has been no legal custody of the petitioner-Amrik Singh. The petitioner-Amrik Singh was not an offender; there was no charge against him; he was not a convict and his family members were never informed of his apprehensions. (vii) The petitioner nos. 1 and 3, who are the sons of the petitioner-Amrik Singh did not offer any resistance to apprehensions of petitioner- Amrik Singh. They were not present the when petitioner-Amrik Singh was apprehended by the Revenue Officials. (viii) Intention is important in the offences under Sections 223, 224 & 225 of IPC. (vii) The petitioner nos. 1 and 3, who are the sons of the petitioner-Amrik Singh did not offer any resistance to apprehensions of petitioner- Amrik Singh. They were not present the when petitioner-Amrik Singh was apprehended by the Revenue Officials. (viii) Intention is important in the offences under Sections 223, 224 & 225 of IPC. The petitioners did not have any intention to escape from the custody. The only pure intention was to save the life of the petitioner-Amrik Singh. (ix) The petitioners did not have any option except to take the petitioner-Amrik Singh to a doctor and that was done in good faith. 5. Learned counsel for the petitioners would submit that prima facie no offence is made out and this is a case, which definitely requires indulgence at this stage. Otherwise, it is argued that the petitioners could have to undergo the rigours of a long drawn trial for no reason. They had done nothing intentionally so as to commit any wrong. Whatever action was taken by the petitioners was taken, so as to save the life of the petitioner-Amrik Singh. 6. Learned State Counsel would submit that whatever arguments have been raised, they have touched upon the factual aspects of the matter, which may be examined during investigation or trial. The FIR is not an encyclopaedia. There are specific allegations against the petitioners. 7. It is a petition under Article 226 of the Constitution of India. A jurisdiction which is much wide, but also guided by the principles of law as laid down by the Hon’ble Supreme Court in a catena of decisions. In the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335, the Hon’ble Supreme Court illustratively gave a list of circumstances under which interference at this stage is warranted. In para 102, the Hon’ble Supreme Court observed as hereunder:- “102. In the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335, the Hon’ble Supreme Court illustratively gave a list of circumstances under which interference at this stage is warranted. In para 102, 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. (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. (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. During the course of argument, the learned counsel for the petitioners has also referred to the provisions of Sections 41, 42, 43, 50 & 54 of the Code of Criminal Procedure, 1973, to argue that, the apprehensions of the petitioner-Amrik Singh was in violation of these statutory provisions. In fact, reference has also been made by the learned counsel for the petitioners to Section 81 of the IPC, which reads as hereunder:- “81. Act likely to cause harm, but done without criminal intent, and to prevent other harm.— Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation.—It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm.” 9. What is being argued is that, whatever action was done by the petitioners that was done, to save the life of the petitioner-Amrik Singh. 10. This Court, in this petition, may not record the findings on factual aspects. This Court cannot conduct a mini trial. What is being argued is that, whatever action was done by the petitioners that was done, to save the life of the petitioner-Amrik Singh. 10. This Court, in this petition, may not record the findings on factual aspects. This Court cannot conduct a mini trial. Only FIR has been recorded; it will be investigated; the Investigating Officer (“the IO”) is also empowered to take a decision with regard to commission of any offence and involvement of person(s) in it. Once, it is done, there is another stage of trial, at that stage also, the Court may evaluate the material collected during investigation. 11. It is admitted by the petitioners that the petitioner-Amrik Singh was taken from civil prison by the other two petitioners. A defence is being taken that the petitioner-Amrik Singh was unwell. Can it be a ground to quash an FIR? State has filed the counter affidavit. There are witnesses, who have stated that, in fact, the petitioner-Amrik Singh had complaint of a chest pain. Dr. Ravinder Singh has stated that he had examined the petitioner-Amrik Singh and his general condition was normal. He had advised, in case of emergency, the patient may be brought to the hospital. In his statement, Dr. Ravinder Singh has told that, in fact, he did not refer the petitioner-Amrik Singh to any higher medical centre because his general condition was normal. 12. There is another witness Dr. Abhilasha Pandey, who has told it to the IO that at 12:45 in the night, the petitioner-Amrik Singh all alone had visited her and complained that he is a heart patient. His blood pressure was slightly high, therefore, she referred him to a higher medical centre. According to the doctor, the petitioner- Amrik Singh had then not revealed that he has come from a prison, otherwise, she would have informed the police. 13. It is the case of the petitioners that thereafter, on 14.07.2022, some surgical procedure was done on the petitioner-Amrik Singh in connection to his heart problem. There are other witnesses also. One witness, Shiv Prasad was also in the same prison. He has stated that as to how the petitioner-Amrik Singh was taken away from the prison by other petitioners. One of the witnesses, Jagmohan Tripathi, the In-charge Tehsildar has also stated about the petitioner-Amrik Singh. According to him, the petitioner-Amrik Singh’s sons and relatives were calling him repeatedly. One witness, Shiv Prasad was also in the same prison. He has stated that as to how the petitioner-Amrik Singh was taken away from the prison by other petitioners. One of the witnesses, Jagmohan Tripathi, the In-charge Tehsildar has also stated about the petitioner-Amrik Singh. According to him, the petitioner-Amrik Singh’s sons and relatives were calling him repeatedly. They also got telephone done to this witness from other persons. 14. It is admitted that, in fact, earlier the petitioner-Amrik Singh had filed a Writ Petition (M/S) No.2846 of 2021, Amrik Singh vs. Collector & others, challenging the recovery citation issued against him. That petition was decided on 05.01.2022 with the directions to the petitioner-Amrik Singh to approach the concerned bank for a proposal. 15. During the course of argument, it has been informed that, in fact, till 13.07.2022, the petitioner- Amrik Singh had not completely settled the claim with the bank concerned. The petitioner-Amrik Singh was apprehended for recovery of bank dues. 16. Whether the petitioner-Amrik Singh was so unwell, that, it required an immediate attention of a doctor, as stated, one of the doctors had told it to the IO that when he had examined, the petitioner-Amrik Singh, he did not refer him to a higher medical centre because his general condition was normal. 17. Has the petitioner-Amrik Singh devised a method to escape from the custody on the pretext of sickness? The escape was intentional. Admittedly, the locks of the prison were broken. What was his purpose? As stated, has it been done under the garb of illness? This Court refrains from recording any findings on those aspects. The FIR in the instant case prima facie discloses commission of offences and, in fact, these are very serious offences. A person in custody has been escaped by breaking the locks of the prison with the help of his children. The IO will examine all the aspects of the matter and may submit a report, thereafter. 18. Having considered, this Court is of the view that there is no reason to make any interference. Accordingly, the present criminal writ petition deserves to be dismissed. 19. The present criminal writ petition is dismissed. 20. However, at any subsequent stage, the petitioners may definitely be at liberty to raise all the valid defences or exceptions that are permissible under law.