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2024 DIGILAW 123 (HP)

Beena v. Man Singh

2024-02-26

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The present revision petition is directed against the order dated 19.11.2011, passed by the learned Sessions Judge, Shimla, vide which the revision filed by the respondents (accused before the learned Trial Court) was allowed and the complaint filed by the petitioner (complainant before the learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present revision are that the complainant filed a complaint before the learned Trial Court for the commission of the offences punishable under Sections 354 and 500 of IPC. It was asserted that the informant is running a shop at Chamain. The police searched the shop of the complainant on 19.03.2008 and 25.12.2008, without any reason. No recovery was effected from the shop. The complainant was present in her shop on 09.01.2009 at about 6:00 p.m. Jagrati (CW-2)and other customers were also present in the shop. The complainant was ready to go to Shimla to buy articles for her shop when the accused entered the shop and searched it. They could not find anything. Accused No. 3 and 4, came out of the shop and brought some boxes inside the shop. The complainant objected and said that she would not keep any articles in her shop. However, she was told that these articles would be kept for a limited time. Kanwar Singh Dogra (CW-3) and Bablu Rajta(not examined), also reached on the spot in the meantime. The accused argued with them. Rajesh and Suresh, the brothers of the complainant, also reached Chamain to take her to Shimla. The complainant boarded the vehicle to go to Shimla. Accused No. 2 and 3 dragged the complainant out of the vehicle and did obscene acts with her. They tried to drag her in their vehicle. They told the complainant to put her signatures on the papers or else she would be dragged to the police station. Rs.60,000/- kept in an envelope and Mangalsutra being worn by the complainant got lost during the incident. The brothers of the complainant objected to the dragging of the complainant; however, they were taken to some distance in the vehicle. Accused No. 2 and 5 and some police officials went to the house of the complainant, but they did not find anything. The brothers of the complainant objected to the dragging of the complainant; however, they were taken to some distance in the vehicle. Accused No. 2 and 5 and some police officials went to the house of the complainant, but they did not find anything. The accused entered the shop of the complainant without any search warrant. They had done obscene acts with the complainant. Hence, a complaint was filed to take action against the accused. 3. The learned Trial Court recorded the statement of the complainant- (CW-1), Jagriti (CW-2), Kanwar Singh Dogra (CW-3) and Suresh Dogra (CW-4) and found sufficient reasons for summoning the accused for the commission of offences punishable under Sections 354, 500 and 379 of IPC against accused No. 2, Section 354 and 500 of IPC against accused No. 3 to 5 and Section 500 of IPC against accused No.1. 4. Being aggrieved from the order passed by the learned Trial Court, the accused preferred separate revisions before the Learned Sessions Judge, which were disposed of by a common order. Learned Sessions Judge, held that police had received secret information against the complainant that she was dealing in liquor without a valid permit. The police went to the shop of the complainant in the presence of witnesses. The complainant/victim picked up some cardboard boxes and threw them from the rear portion of her shop. The police collected 22 bottles of country liquor, three bottles of Beer and one bottle of IMFL from the backyard of the complainant’s shop. The complainant threatened police officials and the other persons. The police registered a case against the complainant for the commission of an offence punishable under Section 61 (1) (a) of the Punjab Excise Act, as applicable to the State of H.P. The complainant filed an application under Section 438 of Cr.P.C., in which no allegations were made against the police. It was only stated that the police had misbehaved with her. The complainant made a false case against the police officials and other persons to wriggle out of the criminal case filed against her. The learned Magistrate made a new case which was not even asserted by the complainant in her complaint. No complaint was ever made against the police officer before any Authority. The complainant made a false case against the police officials and other persons to wriggle out of the criminal case filed against her. The learned Magistrate made a new case which was not even asserted by the complainant in her complaint. No complaint was ever made against the police officer before any Authority. Accused No. 1, was entitled to the protection under Section 197 of Cr.P.C. and the learned Magistrate erred in concluding that no such protection was available. Hence, the order passed by the learned Magistrate was set aside and the complaint so filed by the complainant was ordered to be dismissed. 5. Feeling aggrieved and dissatisfied with the order passed by the learned Sessions Judge, the present revision has been filed, asserting that the learned Sessions Judge erred in accepting the revision. There was a violation of Section 100 of Cr.P.C. Two independent persons were not associated and no reason was assigned for their non-association. No lady constable was taken by the police. The learned Magistrate had rightly ordered the summoning of the accused and leaned Revisional Court erred in upsetting the well-reasoned order passed by the learned Magistrate. 6. I have heard Mr. K.S. Thakur, learned counsel for the petitioner, Mr. Vinay Thakur, learned counsel for respondents No. 1 to 4 and Mr. Jitender Sharma, learned Additional Advocate General for respondent No.6. 7. Mr. K.S.Thakur, learned counsel for the petitioner/complainant submitted that the learned Magistrate had passed a well-reasoned order and the learned First Appellate Court erred in interfering with the same. The version of the complainant was duly supported by the witnesses and the defence of the accused was not to be seen at this stage. The learned Revisional Court erred in relying upon the documents which were not filed before the learned Magistrate. Therefore, he prayed that the present revision petition be allowed and the order passed by the learned Revisional Court be set aside. 8. Mr. Vinay Thakur, learned counsel for respondents No.1 to 4 submitted that the documents considered by the learned First Appellate Court were undisputed and no prejudice is shown by the complainant. The learned Magistrate erred in holding that the protection of Section 197 of Cr.P.C. is not available and the learned Sessions Judge had rightly held that it was available. Mr. Vinay Thakur, learned counsel for respondents No.1 to 4 submitted that the documents considered by the learned First Appellate Court were undisputed and no prejudice is shown by the complainant. The learned Magistrate erred in holding that the protection of Section 197 of Cr.P.C. is not available and the learned Sessions Judge had rightly held that it was available. He relied upon the judgment of the Hon’ble Supreme Court in Matajog Dubey vs H.C. Bhari 1955 2 SCR 925 , and Sankaram Mottra vs. Sadhna Dass, AIR 2006 SC 1599 . He submitted that the learned Magistrate is required to pass a detailed order and he erred in not doing so. He relied upon the judgment of the Hon’ble Supreme Court in M/s Pepsi Food Ltd & another Vs. Special Judicial Magistrate &Ors., (1998) 5 SCC 745 in support of his submission. 9. Mr. Jitender Sharma, learned Additional Advocate General for respondent No.6 supported the submissions of Mr. Vinay Thakur, learned counsel for respondents No.1 to 4 and submitted that no interference is required with the order passed by the learned Sessions Judge. 10. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 11. It appears from the perusal of the record that the learned Revisional Court had relied upon the certified copy of the petition filed on behalf of the complainant to seek his pre-arrest bail, and the order passed by the learned Sessions Judge, on this application. These documents were taken on record pursuant to the application filed under Section 391 of Cr.P.C. 12. It was laid down by the Hon’ble Supreme Court in Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 , that while taking cognizance and summoning the accused the learned Magistrate is required to find out whether a prima facie case has been made out for summoning the accused or not. The learned Magistrate is not required to consider the defence version or the material or arguments nor he is required to evaluate the merits of the material placed before him. It was observed:- 8. The learned Magistrate is not required to consider the defence version or the material or arguments nor he is required to evaluate the merits of the material placed before him. It was observed:- 8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether a prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. 9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of the charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused based on prima facie case. Even at the stage of framing of charge, the sufficiency of materials for conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting the prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial. Xxxx 12. Xxxx 12. In our considered view, the High Court fell into error of evaluating the merits of the defence case and other submissions advanced on behalf of the accused which were not appropriate for consideration at the stage of taking cognizance and issuing summons. 13. The learned advocate for the accused persons, Mr D.N. Goburdhan has placed reliance upon the judgment in Pepsi Foods Ltd. v. Judicial Magistrate[ (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to highlight that summoning of an accused is a serious matter and, therefore, the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the relevant law, as highlighted in para 28 of the Report. In that case, emphasis was laid upon power available with the High Court either under Articles 226 and 227 of the Constitution or under Section 482 CrPC to quash a criminal proceeding even at the initial stage to prevent the abuse of the process of law by the inferior courts. But this Court cautioned that since the powers conferred on the High Court under the aforesaid provisions have no limits, hence more/due care and caution is required while invoking these powers. In para 29 it was emphasised that the accused can approach the High Court “to have the proceeding quashed against him when the complaint does not make out any case against him”. The facts in the present case are otherwise and required the High Court to exercise more caution in view of clear allegations in the complaint petition. The High Court erred in evaluating the merit of evidence for interfering with a summoning order. 13. Therefore, the defence of the accused and the documents produced by him are irrelevant for determining the liability of the accused and the learned Revisional Court could not have considered the defence of the accused while determining the correctness or otherwise of the order passed by the learned Judicial Magistrate. 14. It was submitted that even if the allegation in the complaint and statement on oath are taken to be true, they do not constitute the commission of offences punishable under Sections 500, 379 and 354 of IPC. 14. It was submitted that even if the allegation in the complaint and statement on oath are taken to be true, they do not constitute the commission of offences punishable under Sections 500, 379 and 354 of IPC. It was further pointed out that the complaint itself was made for the commission of offences punishable under Sections 354 and 500 of the IPC and there was no reference to Section 379 of the IPC in it. The complainant improved upon her version in the Court to say that a theft was committed during the incident, which was not the case set up by her in the complaint filed by her. In order to appreciate this submission, it is necessary to look into the averments made in the complaint as well as the statements on oath. 15. It was asserted in the complaint that the complainant boarded the vehicle of her brothers Rajesh and Suresh. Accused No.2 and 3 dragged her out of her vehicle and did obscene acts with her. The complainant stated on oath that SHO Rameshwar took her inside the shop, bolted the shop and did “Batamizi” with her. 16. Jagriti (CW-2) stated that SHO asked her to go out of the shop and thereafter he bolted the room from inside. The SHO and the complainant remained in the room for some time. 17. Kanwar Singh (CW-3) has not stated anything about this aspect. 18. Suresh Dogra (CW-4) stated that when the complainant tried to board the vehicle. SHO Kotkhai and a constable dragged her outside the vehicle and misbehaved with her. 19. Thus, it is apparent that different accounts have been given of the commission of an offence punishable under Section 354 of IPC. The complainant and Jagriti never stated that the modesty of the complainant was outraged when she was dragged out of the vehicle rather they projected a new version that SHO took the complainant inside the room, bolted the room and misbehaved with her, which was never the case projected in the complaint. Only Suresh Dogra stated about the dragging of the complainant from the vehicle. Even he has not mentioned what act was done to outrage the modesty of the complainant. Only Suresh Dogra stated about the dragging of the complainant from the vehicle. Even he has not mentioned what act was done to outrage the modesty of the complainant. Simply because the complainant was dragged from the vehicle by itself without anything more does not constitute outraging the modesty when an attempt was being made to prevent the complainant from escaping from the spot. In a criminal case, the specific acts were required to be mentioned so as to attract the commission of cognizable offences, and the use of words like “Badtmizi” (misbehaviour) cannot lead to an inference that the modesty was outraged. Hence, perusal of the complaint and statement on oath does not disclose the commission of an offence punishable under Section 354 of IPC. 20. The complainant never stated in the complaint that the accused had taken away Rs.60,000/- and the Mangalsutra, rather it was stated that Rs.60,000/- belonging to her kept in an envelope and the Mangalsutra which she was wearing at the time of the incident were lost. Anything getting lost is not equivalent to anything being stolen. A specific allegation was required to be made that the accused had taken these articles from the complainant to deprive her of the same. 21. The complainant stated on oath that Rs.60,000/- kept in an envelope and the Mangalsutra worn by her were lost, which could not be traced. 22. Jagriti (CW-2) stated that an envelope containing money and other articles fell during the scuffle, which were picked up by SHO. 23. Kanwar Singh (CW-3) did not state anything about this aspect. 24. Suresh Dogra (CW-4) stated that the complainant had an envelope containing money and she wearing a Mangalsutra, which fell. These could not be found subsequently. 25. It is apparent that only Jagriti stated that SHO had picked up the mangalsutra and the envelop, whereas Suresh Dogra and Kanwar Singh did not say any such fact. Thus, there is no evidence of commission of any theft. 26. Kanwar Singh Dogra (CW-3) stated that the acts of the accused led to the insult of the informant. Suresh Dogra (CW-4) stated that repeated search and misbehaviour led to the insult of the informant. Therefore, it is apparent that these witnesses are trying to establish the case of defamation on the basis of repeated searches. 26. Kanwar Singh Dogra (CW-3) stated that the acts of the accused led to the insult of the informant. Suresh Dogra (CW-4) stated that repeated search and misbehaviour led to the insult of the informant. Therefore, it is apparent that these witnesses are trying to establish the case of defamation on the basis of repeated searches. However, that is not sufficient as Section 499 of IPC requires the use of words, signs, and visible representation, which is lacking in the present case. 27. Therefore, the submission that no case for the commission of an offence punishable under Sections 354, 500 and 379 of IPC is made out, assuming the averments in the complaint and the statements on oath as correct, has to be accepted. Hence, the order passed by the learned Sessions Judge has to be upheld although on different grounds. 28. It was laid down by the Hon’ble Supreme Court in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 that the revisional court does not sit in appeal over the order sought to be revised and only examines the legality or regularity of the procedure. It was observed: 13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under: “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC.” 14. This Court in the aforesaid judgment has also laid down principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr. P.C. is sought for as under: “27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for the proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit the continuation of prosecution rather than its quashing at that initial stage. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit the continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding admissibility and reliability of the documents or records but is an opinion formed prima facie.” 15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.” 29. There is no infirmity in the order passed by the learned Revisional Court and no interference is required with the same. Hence, the present petition fails and the same is dismissed. Record of the learned Trial Court be returned forthwith.