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2023 DIGILAW 297 (HP)

Rekha Devi v. State of Himachal Pradesh

2023-05-23

AJAY MOHAN GOEL

body2023
JUDGMENT : Ajay Mohan Goel, J. As common questions of law and fact are involved in both these petitions, the same are being disposed of by way of a common judgment. For ready reference, documents and Annexures appended with Cr.MMO No. 750 of 2022 are being referred to. 2. By way of these petitions filed under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, the petitioners have inter alia prayed for quashing of FIR registered against them, copy whereof is on record at page 21 of the paper book i.e. FIR No. 10 of 2021, dated 16.01.2021, registered at Police Station Joginder Nagar, District Mandi, H.P. under Sections 451, 447, 427, 504, 506 read with Section 34 of the Indian Penal Code, on the ground that the FIR against the petitioners is per se not maintainable as the initial complaint which was filed by the complainant qua the occurrence of the alleged offence neither named all the petitioners nor there was any remote reference therein to the petitioners and inclusion of the name of the petitioners in the private complaint subsequently as also in the FIR is nothing but an afterthought and on this count alone, the FIR has to be quashed. Issuance of process of summoning by the learned Trial Court stands assailed on the ground that the impugned order sans any reason. 3. Facts necessary for the adjudication of the present petitions are that a complaint was made by the private respondent Sh. Swaran Kumar, dated 19.07.2020, to the In-charge, Police Post Bassi, Tehsil Joginder Nagar, District Mandi, H.P., copy whereof is on record at page 66 of the paper book, in which it was alleged that the complainant was a resident of village Algawari, Post Office Bhararu, Tehsil Joginder Nagar, and on the fateful day, i.e. 19th July, 2020, at around 10:00 a.m. Sh. Birbal Bharmouria, forcefully dismantled the wall of the complainant with regard to which demarcation stood conducted in the month of June, in which demarcation, the wall was found to be correctly constructed. In terms of the complaint, a fresh demarcation was conducted on 15th July, 2020, in which, some part of the wall was found to be falling to the share of Birbal Bharmouria and the same was acceptable to the complainant but Birbal Bharmouria did not concur with the said demarcation. In terms of the complaint, a fresh demarcation was conducted on 15th July, 2020, in which, some part of the wall was found to be falling to the share of Birbal Bharmouria and the same was acceptable to the complainant but Birbal Bharmouria did not concur with the said demarcation. It was further mentioned in the complaint that on 19.07.2020, at around 10:00 a.m. the wall was forcefully dismantled and the complainant was threatened that he may go to police or revenue officers. It was further mentioned in the complaint that the complainant was being harassed mentally, as earlier also, a part of his gate was unlawfully dismantled and a false case was being threatened to be lodged against his son. Further, the entire family of Birbal Bharmouria was threatening to do away with the life of the complainant. 4. Record demonstrates that the investigation was carried out by the police and the effort made by the police was recorded in the rojnamcha of the same day, dated 19.07.2020. It appears that as the complainant was not satisfied with the investigation, he preferred a private complaint in the Court of learned Judicial Magistrate 1st Class, Joginder Nagar, under Sections 149, 504, 506, 427, 447, 451 and 452 of the Indian Penal Code, a copy of which is on record at page 25 of the paper book. 5. Incidentally, in this private complaint, now there were additional accused named and two photographers/ videographers, whose identities were not known to the complainant, were also arrayed as respondents/accused. In the complaint, it was alleged that the complainant had retired as an Honorary Captain from the Indian Army and constructed his house in village Algawari, Tehsil Joginder Nagar, District Mandi, and adjacent to his house, there was the house of accused No.1. As per complainant, he constructed his house in the year 1988 whereas accused No.1 constructed his house in the year 1995. It was further mentioned in the complaint that a wall stood constructed by the complainant about four years back and on 19.07.2020, the accused persons came on the land of the complainant by forming an unlawful assembly with an intent to demolish the wall and they demolished the same despite the requests of the complainant and his family members. It was further mentioned in the complaint that a wall stood constructed by the complainant about four years back and on 19.07.2020, the accused persons came on the land of the complainant by forming an unlawful assembly with an intent to demolish the wall and they demolished the same despite the requests of the complainant and his family members. The matter was reported to the police but nothing was done and the police after verification had prepared the Kalandra under Sections 107 and 151 of Cr.P.C. It was further mentioned in the complaint that in terms of the demarcation, a portion of the land owned by the complainant was found to be occupied by accused No.1. Accused Nos. 1 and 2 were practicing Lawyers and had influenced the police and threatened to eliminate the complainant and his family members and had also trespassed the land of the complainant and demolished the wall and thus caused loss of Rs. 20,000/- and a request was made by the complainant to register a case against the accused under the relevant provisions of the Indian Penal Code already narrated hereinabove. 6. This private complaint was disposed of by the Court of learned Judicial Magistrate First Class, Joginder Nagar, vide order dated 15.01.2021, in terms whereof, SHO was directed to register the FIR and investigate the matter and to file a report within a week. It was further ordered that if FIR stood registered then in that eventuality, SHO was to file status report within a week. 7. In terms of the directions so passed by the Court, the FIR, quashing of which is being sought by the petitioners, was lodged, investigation was carried out and process has been issued by summoning the accused in terms of order passed by learned Trial Court dated 10.09.2021. It is in this background that the present petition has been preferred before this Court by the petitioners. 8. Learned Counsel for the petitioners have argued that lodging of the FIR against the petitioners is nothing but an abuse of process of law, which is evident from the fact that in the earlier complaint, there was no allegation levelled against all the petitioners but subsequently when the private complaint was preferred by the complainant, he concocted the facts, exaggerated the same with an intent to implicate the petitioners falsely in a criminal case and arrayed all of them as accused. Learned Counsel has further argued that the process which has been issued by the learned Court below in terms of order dated 10th September, 2021, is also faulty as the same has been issued without any due application of mind which is apparent from the bare perusal of the order itself and the same is per se bad in terms of the law laid down by Hon’ble Supreme Court of India in Sunil Bharti Mittal vs. Central Bureau of Investigation, (2015) 4 SCC 609 , which has been recently followed by Hon’ble Supreme Court again in another judgment in Criminal Appeal No. 1757 of 2022, titled as Lalankumar Singh and others vs. State of Maharashtra, decided on 11.10.2022. Accordingly, learned Counsel have argued that as the lodging of the FIR is nothing but an abuse of the process of law and as no case is made out against the petitioners, the present petition be allowed and this Court in exercise of inherent jurisdiction may be pleased to quash the FIR and/or in the alternative set aside the order of summoning the accused/petitioners by learned Judicial Magistrate First Class, Joginder Nagar, as the same is a non-speaking order. 9. The petition is resisted by learned Counsel for the private respondent-complainant inter alia on the ground that a perusal of the original complaint demonstrates that it was clearly and categorically mentioned therein that whereas the main aggressor was Birbal Bharmouria, but he was assisted by his family members. Learned Counsel has further submitted that otherwise also it is not necessary to spell out each and everything in the initial complaint and only the occurrence has to be narrated in the initial complaint and subsequently, it is the course of investigation which reveals as to who all are guilty of the offence. Learned Counsel has further argued that as order dated 10.09.2021 has been passed by learned Trial Court after being prima facie satisfied that there were sufficient grounds to proceed against the accused, therefore, this order can also be not faulted with and in these circumstances, the present petition being devoid of merit is liable to be dismissed. Learned Counsel has further argued that as order dated 10.09.2021 has been passed by learned Trial Court after being prima facie satisfied that there were sufficient grounds to proceed against the accused, therefore, this order can also be not faulted with and in these circumstances, the present petition being devoid of merit is liable to be dismissed. Learned Counsel has further argued that the petitions otherwise also are not maintainable as the same have been preferred only by few of the accused and as other accused are not before the Court, therefore also, the relief being sought for by the petitioners cannot be granted to them. 10. Learned Additional Advocate General has submitted that whereas primarily it appears to be a boundary dispute between petitioner No. 1 and the private complainant, who are immediate neighbours but there is no illegality or irregularity either in the registration of the FIR by the police which has been duly registered in terms of order dated 15.01.2021, by learned Judicial Magistrate First Class, Joginder Nagar, District Mandi, upon the complaint filed by the private respondent. The process which has been issued by learned Court below also cannot be faulted with as it has been issued after recording that sufficient grounds existed for the issuance of the process. Accordingly, a prayer has been made for rejection of the petition. 11. I have heard learned Counsel for the parties and also carefully gone through the pleadings as well as documents appended therewith. 12. Before I dwell upon the respective contentions of learned Counsel for the parties, it is necessary in brief to touch the situations in which this Court in exercise of its powers conferred under Section 482 of the Code of Criminal Procedure, can quash the FIRs. Hon’ble Supreme Court in State of Haryana and others vs. Chaudhary Bhajan Lal and others, AIR 1992 Supreme Court 604, has been pleased to cull out certain categories of cases by way of illustration wherein said power could be exercised either to prevent the abuse of process of any Court or otherwise to secure the ends of justice. Hon’ble Supreme Court in State of Haryana and others vs. Chaudhary Bhajan Lal and others, AIR 1992 Supreme Court 604, has been pleased to cull out certain categories of cases by way of illustration wherein said power could be exercised either to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The categories as culled out by Hon’ble Supreme Court are quoted herein below:- (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 F.I.R. 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 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.” 13. (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.” 13. In M/s Neeharika Instrastructure Private Limited vs. State of Maharashtra and others (Criminal Appeal No. 330 of 2021), Hon’ble Supreme Court of India after referring to the earlier adjudications made by it, has been pleased to reiterate that the power of quashing should be exercised sparingly with circumspection and in the rarest of rare cases but rarest of rare cases standard in its application for quashing under Section 482 of Cr..P.C. is not to be confused with the norm which has been formulated in the context of the death penalty. Hon’ble Supreme Court also held that extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice and the first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Hon’ble Court further went on to hold that when a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the Court has to permit the investigating agency/police to investigate the allegations in the FIR. Hon’ble Court further held that there is no denial of the fact that power under Section 482 of the Code of Criminal Procedure, is very wide but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court which exercises this power and the High Court has to give brief reasons which will reflect the application of mind by the Court to the relevant facts while exercising this power. 14. This Court will proceed in the matter keeping in consideration the guidelines laid down by Hon’ble Supreme Court of India referred to hereinabove. 15. The initial complaint filed by the private respondent to the police is dated 19.07.2020. 14. This Court will proceed in the matter keeping in consideration the guidelines laid down by Hon’ble Supreme Court of India referred to hereinabove. 15. The initial complaint filed by the private respondent to the police is dated 19.07.2020. A perusal of this complaint demonstrates that the allegations mentioned therein were that on 19th July, 2020, at around 10:00 a.m. Advocate Birbal Bharmouria had forcefully dismantled the wall of the complainant. A careful perusal of this complaint demonstrates that there is no mention of any other person in this complaint upon whom the allegation was that he either himself or alongwith Birbal Bharmouria dismantled the wall or assisted Birbal Bharmouria in the alleged dismantling of the wall. Though in the last three lines of this complaint, there is a reference that the entire family of Birbal Bharmouria was threatening to do away with the life of the complainant but this allegation is general in nature and has neither been attributed to any individual nor it is any event specific. Now in this backdrop, when we peruse the private complaint filed by the complainant, which is on record at page 25 of the paper boo2k, ex facie perusal of the same demonstrates that the accused mentioned therein included persons other than Birbal Bharmouria who was the only person named in the original complaint and the allegations now stood levelled against other accused also which were neither mentioned nor detailed in the original complaint. In fact it is necessary to mention that whereas the original complaint is dated 19th July, 2020, the private complaint is dated 17th December, 2020, which means that this was filed after about a gap of five months. The FIR has been registered on the basis of directions passed by learned Judicial Magistrate First Class, Joginder Nagar, vide order dated 15.01.2021, on the basis of this private complaint. The FIR has been lodged besides Birbal Bharmouria against Vineet Bharmouria, Rekha, Sukh Dev Rathore and Reena and two other unknown persons. In Cr.MMO No. 750 of 2022, there are two petitioners before this Court, namely, Smt. Rekha Devi and Birbal Bharmouria, whereas in Cr.MMO No. 545 of 2021, there is only one petitioner before this Court, namely, Shri Vineet Bharmouria. In Cr.MMO No. 750 of 2022, there are two petitioners before this Court, namely, Smt. Rekha Devi and Birbal Bharmouria, whereas in Cr.MMO No. 545 of 2021, there is only one petitioner before this Court, namely, Shri Vineet Bharmouria. Thus, this Court without any fear of contradiction can safely say that out of the present three petitioners, only one petitioner was named in the original complaint and there was neither any whisper nor any murmur with regard to any conduct, overt or covert, having been committed by any other accused subsequently arrayed in the FIR as far as dismantling of wall is concerned. Not only this, a perusal of the original complaint as compared to the contents of the FIR also clearly demonstrates that improvements stood made in the complaint by the complainant as is borne out from the contents of the private complaint. This Court is not commenting on the veracity of the allegations per se for the reason that this Court in exercise of its power under Section 482 of the Code of Criminal Procedure, is not to perform the function of the adjudicatory Court as to whether the allegations are correct or incorrect but this much observation this Court would like to make that the allegations contained in the subsequent private complaint and the FIR were nowhere mentioned in the original complaint. In State of Haryana and others vs. Bhajan Lal (supra) Hon’ble Supreme Court of India while illustrating the category of cases which have been clarified not to be exhaustive in nature, has held that where the allegations made in the FIR or the complaint, even if 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 or where the allegations made in the FIR 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, even in these circumstances, the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure. In the present case, what to talk of the allegations in the FIR, here is a matter where the initial complaint, in fact, contained no allegations against petitioners Smt. Rekha Devi and Vineet Bharmouria, but subsequently, they were impleaded as accused in the FIR and allegations were made against them qua the alleged occurrence which took place on 19th July, 2020. This demonstrates that the lodging of the private complaint as also the FIR, at least against these two persons, was nothing but an abuse of the process of law for the reason that there is no cogent explanation either in the complaint or in the FIR as to why these two persons were not named in the original complaint. To be more precise, it was not the case of the complainant in the original complaint that acused Birbal Bharmouria and certain other persons allegedly dismantled the wall. The allegation was clear and explicit that it was Birbal Bharmouria who allegedly dismantled the wall of the complainant, at around 10:00 am, in the morning of 19th July, 2020. That being the case, the subsequent addition of other accused, both in the private complaint as well as FIR, naturally was nothing but an afterthought and the abuse of the process of law and this Court in exercise of inherent powers so vested in it under Section 482 of Cr.P.C. can come to the rescue of said two petitioners because Hon’ble Supreme Court of India in State of Haryana and others vs. Bhajan Lal and others (supra) has unequivocally held that power under Section 482 Cr.P.C. can be exercised by the High Court also in a situation where a criminal proceeding is manifestly attended with mala fides 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. In the present case, it is writ large on the face of the record that there is a dispute going on between the families of the complainant and accused. As already mentioned hereinabove, in the original complaint, there was no mention that any offence stood committed by Smt. Rekha Devi and Sh. In the present case, it is writ large on the face of the record that there is a dispute going on between the families of the complainant and accused. As already mentioned hereinabove, in the original complaint, there was no mention that any offence stood committed by Smt. Rekha Devi and Sh. Vineet Bharmouria on 19.07.2020, yet these two persons have been impleaded as accused both in the private complaint and the FIR and as already discussed hereinabove, without any explanation as to why there was no disclosure of their names in the original complaint. This clearly demonstrates that the criminal proceedings which were initiated against them by the complainant were manifestly attended with mala fide and proceeding was maliciously instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite them due to private and personal grudge. 16. Therefore, in the light of above discussion, these two petitions succeed to the extent that the FIR in issue as also ensuing criminal proceedings against the petitioners Rekha Devi and Vineet Bharmouria are quashed and set aside on the ground that the proceedings have been attended with mala fides and have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge, which the complainant has with the family of the petitioners on account of boundary dispute between the families. As far as the proceedings which are continuing against petitioner Birbal Bharmouria are concerned, this Court is not interfering with the same for the reason that he was named in the original complaint by the complainant, however, it is clarified that this Court is not giving any observation with regard to the culpability of Shri Birbal Bharmouria vis-a-vis the allegations which stand made against him and the same, of course, will have to pass the test of the trial. 17. As far as the objection taken by learned Counsel for the private respondent that the petitions are not maintainable as all the accused have not approached the Court, is concerned, in the considered view of the Court, this objection raised by learned Counsel for the private respondent has no legal force. 17. As far as the objection taken by learned Counsel for the private respondent that the petitions are not maintainable as all the accused have not approached the Court, is concerned, in the considered view of the Court, this objection raised by learned Counsel for the private respondent has no legal force. Simply because there are more than one accused in the FIR, the same does not debars any aggrieved accused from invoking the extraordinary jurisdiction of this Court under Section 482 of Cr.P.C. for seeking appropriate relief. There is no law which says that for the purpose of quashing of an FIR, all the accused named in the FIR have to approach the Court together. In other words, every accused has an independent right vested in him or her to approach the Court under Section 482 Cr.P.C, but, of course, the order that may be passed by the Court in such proceeding, would be dependent upon facts of the case of the individual. 18. Before parting I would like to deal with the contention raised by learned Counsel for the petitioners that the petitioner in Cr.MMO No. 750 of 2022 in terms whereof he has laid challenge to the order passed by the Court of learned Judicial Magistrate First Class dated 10.09.2021, in terms whereof, the accused stands summoned on the ground that the order does not contains any reasons for issuance of the process. Hon’ble Supreme Court of India in Lalankumar Singh and others vs. State of Maharashtra (Criminal Appeal No. 1757 of 2022), by relying upon its earlier judgment in Sunil Bharti Mittal vs. Central Bureau of Investigation (2015) 4 SCC 609 , has been pleased to reiterate that the order of issuance of the process is not an empty formality and the Magistrate is required to apply his mind as to whether sufficient grounds for proceeding existed in the case or not. Hon’ble Court has been further pleased to hold that formation of such an opinion is required to be stated in the order itself and the order is liable to be set aside if no reasons are given in the order while coming to the conclusion that there is a prima facie case against the accused. 19. Hon’ble Court has been further pleased to hold that formation of such an opinion is required to be stated in the order itself and the order is liable to be set aside if no reasons are given in the order while coming to the conclusion that there is a prima facie case against the accused. 19. In the background of the law so declared by Hon’ble Supreme Court, if one peruses order dated 10.09.2021 passed by learned Trial Court, the only conclusion which can be drawn is that the order of summoning which has been passed by learned Judicial Magistrate First Class, Joginder Nagar, is prima facie bad in the eyes of law as no reasons stand assigned therein while coming to the conclusion that there is a prima facie case against the accused. All that is recorded in the order is that after perusal of the challan and documents attached as the Court finds that there are sufficient grounds to proceed against the accused, therefore, let accused be summoned for 15.11.2021. Neither the order depicts any due application of mind as to whether sufficient grounds for proceeding against the accused existed or not, nor there is any explanation contained in the order from which it could be ascertained as to what weighed with the learned Judicial Magistrate when learned Magistrate formed the opinion that there are sufficient grounds to proceed against the accused. Therefore, this order is also not sustainable in the eyes of law and the same is also quashed and set aside but with direction to the learned Judicial Magistrate to pass a fresh order, by assigning reasons therein, justifying the conclusion that may be arrived at by the learned Magistrate, based on the challan and the documents appended therewith. With these observations, the petitions stand disposed of. Pending miscellaneous application(s), if any, also stand disposed of accordingly.