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Himachal Pradesh High Court · body

2024 DIGILAW 76 (HP)

Vinod Kumar v. State of H. P.

2024-01-11

RAKESH KAINTHLA

body2024
JUDGMENT : RAKESH KAINTHLA, J. 1. The petitioner has filed the present petition for seeking the cancellation of bail granted to respondents No. 2 and 3. It has been asserted that the petitioner’s wife lodged a complaint with the Police on 10.05.2022 with the allegations that respondents No. 2 and 3 came to her house on 09.05.2022. They abused the informant and her family members. The informant entered the house and bolted the door. She narrated the incident to the petitioner and his son in the evening. She heard stones falling in her backyard on the same date at 9:30 p.m. When she went to her lintel, she found respondent No. 2 was damaging the boundary wall located in the backyard. When she asked respondent No. 2 to stop, he threw a stone at her, which hit her left leg. She started crying. Respondent No. 2 abused the informant and her family members and threatened to kill them. The matter was reported to the police and F.I.R. No. 28 dated 10.05.2022 was registered in the Police Station. The Police found after investigation the involvement of respondents No. 2 and 3 for the commission of offences punishable under Sections 451, 323, 427, 504, and 506 and read with Section 34 of IPC. Since the offences are bailable; therefore, respondents No. 2 and 3 were released on bail. A charge sheet was filed before the learned Judicial Magistrate, First Class, Aani, District Kullu, HP and Criminal Case No. 46 of 2022 was registered against respondents No. 2 and 3. Respondents No. 2 and 3 on 29.09.2022 at about 12:30 p.m. assaulted the petitioner by giving blows to his face. The petitioner suffered bruises all over his face and body. His two teeth were broken. The matter was reported to the police and F.I.R. No. 74 of 2022 was registered against respondents No. 2 and 3 for the commission of offences punishable under Sections 325, 504 506 and 34 of IPC. Respondents No. 2 and 3 were again released on bail despite the protest of the petitioner. The petitioner wrote various letters to the police for the cancellation of bail of respondents No. 2 and 3, but no action was taken. The petitioner and his family members are under constant threats from respondents No. 2 and 3. The petitioner shifted to village Mohin to a distance of about 25 K.M from their home. The petitioner wrote various letters to the police for the cancellation of bail of respondents No. 2 and 3, but no action was taken. The petitioner and his family members are under constant threats from respondents No. 2 and 3. The petitioner shifted to village Mohin to a distance of about 25 K.M from their home. Therefore, it was prayed that the present petition be allowed and bail granted to respondents No. 2 and 3 be cancelled. 2. The State has filed a status report reproducing the contents of the F.I.R. lodged by the petitioner’s wife. It was asserted that a charge sheet was filed against respondents No. 2 and 3. Respondent No. 2 Laxmi Kant also lodged an F.I.R. No. 73 of 2022 on 29.09.2022 against the petitioner for the commission of offences punishable under Section 341, 323, 504 and 506 of IPC, which is pending before the Gram Panchayat Nither and F.I.R. No. 74 was 2022 was registered at the instance of the petitioner for the commission of offences punishable under Sections 341, 323, 325, 506 and 34 of IPC. The challan has been filed against respondents No. 2 and 3. Respondents No. 2 and 3 did not violate the conditions of notice 41(1)(A) of Cr.P.C. Since the offences are bailable; therefore, respondents No. 2 and 3 were released on bail. 3. A separate reply was filed by Respondents No. 2 and 3 taking preliminary objection, regarding lack of maintainability, the petition being an abuse of the law, the petitioner having not come to the Court with clean hands and F.I.R. having been lodged as a counterblast to the F.I.R. lodged by respondent No. 2. It was asserted that the petition has been filed to settle the personal score and to pressurize respondent No. 2 and 3. There is a boundary dispute between the parties. The petitioner is a quarrelsome person and is in the habit of quarrelling with respondents No. 2 and 3. Criminal cases are pending against the petitioner and he has concealed this fact from the Court. Nisha wife of Laxmi Kant filed a complaint against the petitioner on 10.05.2022 and rapat No. 13 was registered at her instance. The matter is pending before the learned SDM Ani. She also made a report on 16.05.2022 and Rapat No. 13 was registered. Criminal cases are pending against the petitioner and he has concealed this fact from the Court. Nisha wife of Laxmi Kant filed a complaint against the petitioner on 10.05.2022 and rapat No. 13 was registered at her instance. The matter is pending before the learned SDM Ani. She also made a report on 16.05.2022 and Rapat No. 13 was registered. Respondent No. 2 lodged an F.I.R. No. 73 of 2022, for the commission of offences punishable under Sections 341, 323, 504 and 506 of IPC against the petitioner. However, the said F.I.R. is a counterblast to the F.I.R. lodged by the respondent. Various criminal cases against the petitioner show that he is a habitual offender. F.I.R. No. 17 of 2016, F.I.R. 43 of 2017, a complaint under Section 107 of Cr.P.C. are pending against the petitioner and in addition to this RSA No. 419 of 2013, proceedings for eviction under the Public Premises Act and partition proceedings are pending before the Assistant Collect Nither. A false report was lodged against respondents No. 2 and 3 simply to harass them. The respondents have not violated bail conditions and a false story was concocted to implicate them. The F.I.R. was lodged by different persons and is related to different incidents. The present petition is not maintainable. Hence, it was prayed that the present petition be dismissed. 4. I have heard Mr. B.N. Misra, learned Senior Counsel assisted by Ms Farhana Khan, learned counsel for the petitioners, Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State and Mr Romesh Verma, learned Senior Counsel assisted by Mr. Sumit Sharma, learned counsel for respondents No. 2 and 3. 5. Mr. B.N. Misra, learned Senior Counsel for the petitioner submitted that respondents No. 2 and 3 were released on bail in the F.I.R. lodged at the instance of the petitioner’s wife. They violated the conditions of the bail by giving beatings to the petitioner; therefore, he prayed that the present petition be allowed and bail granted to respondents No. 2 and 3 be cancelled. He relied upon the judgment of the Hon’ble Supreme Court in Ratilal Bhanji Mithani vs. Assistant Collector of Customs, (1967) 3 SCR 926 and Rasiklal vs. Kishore, (2009) 4 SCC 446 , in support of his submission that bail can be cancelled for violations of the conditions of bail. 6. Mr. He relied upon the judgment of the Hon’ble Supreme Court in Ratilal Bhanji Mithani vs. Assistant Collector of Customs, (1967) 3 SCR 926 and Rasiklal vs. Kishore, (2009) 4 SCC 446 , in support of his submission that bail can be cancelled for violations of the conditions of bail. 6. Mr. Prashant Sen, learned Deputy Advocate General for respondent No. 1-State submitted that there was no violation of the conditions of bail; therefore, the present petition is not maintainable. Hence, he prayed that the same be dismissed. 7. Mr. Romesh Verma, learned Senior Counsel for respondents No. 2 and 3 submitted that the petition under Section 482 of Cr.P.C. does not lie because of the availability of alternative and efficacious remedy under Section 439(2) of Cr.P.C. He relied upon the judgment of the Hon’ble Supreme Court in R.P. Kapur vs. State of Punjab, 1960 SCC Online SC 21 : (1960) 3 SCR 388 , Hamida vs. Rashid, (2008) 1 SCC 474 and Palaniappa Gounder vs. State of Tamil Nadu, (1977) 2 SCC 634 : 1977 SCC (Cri) 397 in support of his submission. He submitted that the petitioner has not disclosed the pendency of the criminal cases against him and he is not entitled to any discretionary relief under Section 482 of Cr.P.C. He relied upon Umesh Kumar Yadav vs. State of U.P. 2022 SCC Online All. 655, Chinmaya Sahu vs. State of Orissa in Crl. M.C. No. 2452 of 2023, decided on 20.07.2023, Anup Kumar Singh vs. State of U.P. and Another, Application under Section 482 No. 4302 of 2023, decided on 16.02.2023 and Ashok Khurana and Another vs. State of Uttarakhand and Others, in Criminal Misc. Application No. 1588 of 2017, decided on 23.09.2023 in support of his submission. 8. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 9. Section 439(2) of Cr.P.C. empowers the High Court or the Courts of Sessions, to direct that any person who has been granted bail under Chapter 33 be arrested and committed to custody. 10. It was laid down by Orissa High Court in Madhab Chandra Jena vs. State of Orissa, 1986 SCC Online Ori. 144 : (1987) 63 CLT 226 : (1988) 1 APLJ (DNC 2) 39 : 1988 Cri. 10. It was laid down by Orissa High Court in Madhab Chandra Jena vs. State of Orissa, 1986 SCC Online Ori. 144 : (1987) 63 CLT 226 : (1988) 1 APLJ (DNC 2) 39 : 1988 Cri. L.J. 608 that the bail granted to a person can be cancelled by the Sessions Court or by the High Court in the new Cr.P.C. and there is no difference between the bailable and non-bailable offence as far as cancellation is concerned. Therefore, the power is vested in the Sessions Court and the High Court to cancel a bail under Section 439(2) of Cr.P.C. and there is a force in the submission of Mr. Romesh Verma, learned Senior Counsel for respondents No. 2 and 3 that extraordinary power cannot be exercised when a specific provision exits. 11. The application under Section 439(2) lies to the High Court. In Palaniappa Gounder’s case (supra), the legal heir filed an application for seeking compensation under Section 482 of Cr.P.C. The Hon’ble Supreme Court held that the application should have been filed under Section 357 of Cr.P.C. and not under Section 482 of Cr.P.C. however, mentioning the wrong Section does not affect the power of the High Court because the High Court could have dealt with the application under Section 357 of Cr.P.C. even though the application was filed under Section 482 of Cr.P.C. It was observed: 3. Section 482 of the Code under which the heirs of the deceased filed the application for compensation corresponds to Section 561-A of the Criminal Procedure Code of 1898. It saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A provision which saves the inherent powers of a Court cannot override any express provision contained in the statute which saves that power. This is put in another form by saying that if there is an express provision in a statute governing a particular subject matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter. This is put in another form by saying that if there is an express provision in a statute governing a particular subject matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter. From this, it will be clear that the application made by the heirs of the deceased for compensation could not have been made under Section 482 since Section 357 expressly confers power on the court to pass an order for payment of compensation in the circumstances mentioned therein. That did not, however, affect the power of the High Court to deal with the application because though the application was wrongly described as having been made under Section 482 the High Court could deal with it as if it were made under Section 357 of the Code. That in fact is what the High Court proceeded to do, for it passed the order of compensation not under Section 482 but under Section 357(1)(c) of the Code. 12. This is also in accordance with the principle that if the Court has power under some provision of law, this power is not taken away by mentioning a wrong provision. It was laid down by State of Karnataka vs. Muniyalla, (1985) 1 SCC 196 , that an order purported to be made under some provision of law does not become invalid so long as there is some provision under which it could have been validly made. It was observed: 4. Now it is obvious that the Judgment of the High Court is patently wrong and cannot be sustained and in fact, Mr. Kapil Sibal appearing on behalf of the respondent, with his usual candour and frankness, stated that it was difficult for him to support the Judgment. It was observed: 4. Now it is obvious that the Judgment of the High Court is patently wrong and cannot be sustained and in fact, Mr. Kapil Sibal appearing on behalf of the respondent, with his usual candour and frankness, stated that it was difficult for him to support the Judgment. We may proceed on the basis that the Sixth Additional City Civil and Sessions Judge could try only such Sessions Cases as were made over to him by the Principal City Civil and Sessions Judge in exercise of the powers conferred under Section 194 of the Criminal Procedure Code, though we are not at all sure that, even if the Sixth Additional City Civil and Sessions Judge tried a Sessions Case which was not formally made over to him, the trial would be invalid, because in any event the Sixth Additional City Civil and Sessions Judge would have inherent jurisdiction to try the Sessions Case. We need not, however, go into that question because we find that there was an order made by the Principal City Civil and Sessions Judge on January 30, 1981, making over Sessions Case No. 17 of 1979 to the Sixth Additional City Civil and Sessions Judge, Bangalore. Undoubtedly this order was purported to be made by the Principal City Civil and Sessions Judge in the exercise of the powers conferred under Section 409 of the Code of Criminal Procedure and this section did not confer power on the Principal City Civil and Sessions Judge to make over Sessions Case No. 17 of 1979 to the Sixth Additional City Civil and Sessions Judge. But it is now well-settled that merely because an order is purported to be made under a wrong provision of law, it does not become invalid so long as there is some other provision of law under which the order could be validly made. A mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it. A mere recital of a wrong provision of law does not have the effect of invalidating an order which is otherwise within the power of the authority making it. Here the Principal City Civil and Sessions Judge had power under Section 194 of the Code of Criminal Procedure to make over Sessions Case No. 17 of 1979 to the Sixth Additional City Civil and Sessions Judge and the order made by him on January 30, 1981, was clearly within his authority and the only error was that he recited a wrong section of the Code of Criminal Procedure. The order dated January 30, 1981, made by the Principal City Civil and Sessions Judge must be read as an order made under Section 194 of the Code of Criminal Procedure insofar as the direction making over Sessions Case No. 17 of 1979 to the Sixth Additional City Civil and Sessions Judge is concerned. We are therefore of the view that Sessions Case No. 17 of 1979 was validly made over to the Sixth Additional City Civil and Sessions Judge and he had jurisdiction to try that Sessions Case. The Judgment of the High Court setting aside the conviction and sentence recorded against the respondent on the ground that the Sixth Additional City Civil and Sessions Judge has no jurisdiction to try Sessions Case No. 17 of 1979, must consequently be held to be erroneous. 13. This position was reiterated in Kishun Singh vs. State of Bihar, (1993) 2 SCC 16 , wherein it was observed: 17. For the reasons stated above while we are in agreement with the submission of the learned counsel for the appellants that the stage for the exercise of power under Section 319 of the Code had not reached, inasmuch as the trial had not commenced and evidence was not led, since the Court of Session had the power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime prima facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is well settled that once it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal. 14. We, therefore, dismiss this appeal. 14. A similar view was taken in T. Nagappa vs. Y.R. Muralidhar, (2008) 5 SCC 633 : (2008) 2 SCC (Cri) 677 wherein it was observed: 13. Ms Suri, however, pointed out that the application of the appellant being one under Section 293 of the Code of Criminal Procedure was rightly rejected. It is now a well-settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance if the court had the requisite jurisdiction to pass an order. 15. Hence, the petition cannot be dismissed merely because Section 482 of Cr.P.C. was mentioned instead of Section 439 (2) of Cr.P.C. 16. It was submitted that the petitioner has not come to the Court with clean hands and has not disclosed the pendency of the criminal cases against him. This submission will not assist respondents No. 2 and 3. First of all mere pendency of the criminal cases is no ground to refuse to exercise the jurisdiction under Section 482 of Cr.P.C. It was laid down by the Hon’ble Supreme Court in Mohd. Wajid vs. State of U.P. 2023 SCC Online SC 951 : 2023 INSC 683 that the Court cannot refuse to quash the FIR on the ground that the criminal cases were registered against the petitioner. It was observed: 38. The learned Additional Advocate General appearing for the State vehemently submitted that considering the gross criminal antecedents of the appellants before us, the criminal proceedings may not be quashed. The learned Additional Advocate General appearing for the State in her written submissions has furnished details in regard to the antecedents of the appellants. A bare look at the chart may give an impression that the appellants are history sheeters and hardened criminals. However, when it comes to quashing the FIR or criminal proceedings, the criminal antecedents of the accused cannot be the sole consideration to decline to quash the criminal proceedings. An accused has a legitimate right to say before the Court that however bad his antecedents may be, still if the FIR fails to disclose the commission of any offence or his case falls within one of the parameters as laid down by this Court in the case of Bhajan Lal (supra), then the Court should not decline to quash the criminal case only on the ground that the accused is a history-sheeter. 17. 17. Therefore, the Court cannot refuse to exercise the jurisdiction under Section 482 of Cr.P.C. on the ground that the petitioner has criminal cases pending against him. Merely because many cases are pending against the petitioner does not mean that he will be deprived of his right of approaching the Court to protect his life and the lives of his family members from the assailants. No person can go and beat the person against whom the cases have been registered. Secondly, the petitioner has sought cancellation of the bail of respondents and No. 2 and 3 due to violation of the conditions of the bail. It is not understood how and under what circumstances he was required to mention the cases pending against him. He was only required to mention that the respondents had violated the conditions of bail and not the cases pending against him. Hence, the submission that the petition is liable to be rejected due to suppression of criminal cases pending against the petitioner is not acceptable. 18. In Anup Kumar’s case (supra), the petitioner had concealed the fact that non-bailable warrants were issued against him and proceedings under Section 82 of Cr.P.C. were pending against him. These were held to be relevant in a petition for quashing the proceedings pending against him in that very case. A person who is avoiding the process of the Court cannot take shelter behind the very process that he is avoiding. Hence, the disclosure of the pendency of warrants of arrest was necessary. 19. In Umesh Kumar Yadav’s case (supra) a petition was filed to quash the complaint filed under Section 498-A of IPC, it was asserted that a compromise was effected between the parties but no compromise was effected and it was held that the petitioner had concealed the fact, which was again a relevant consideration because the compromise formed the basis of the petition under Section 482 of Cr.P.C. 20. In Ashok Kumar Khurana’s case (supra), a summoning order was challenged and averment was made that a civil suit was pending between the parties, however, it was found subsequently that no such Civil Suit was pending and it had already been dismissed. In Ashok Kumar Khurana’s case (supra), a summoning order was challenged and averment was made that a civil suit was pending between the parties, however, it was found subsequently that no such Civil Suit was pending and it had already been dismissed. The High Court held that a person who makes a wrong averment to get relief under Section 482 of Cr.P.C. is not entitled to the discretionary relief of Section 482 of Cr.P.C. It was a relevant consideration because it pertained to the petition under Section 482 of Cr.P.C. and the basis of which it was filed. 21. In the present case, the pendency of the criminal case does not form the foundation of the proceedings. It not going to affect the outcome of the decision as laid down by the Hon’ble Supreme Court in Mohd. Wajid’s (supra). Therefore, the submission that the petitioner has concealed the material facts from the Court and is not entitled to invoke the jurisdiction of the Court under Section 482 of Cr.P.C. is not acceptable. 22. The Hon’ble Supreme Court held in Rasiklal’s case that the bail can be cancelled in a bailable offence if the accused misuses his liberty by indulging in similar criminal activity, interfering with the course of the investigation, tampering with the evidence of witnesses. It was observed: 13. It may be noticed that sub-section (2) of Section 436 of the 1973 Code empowers any court to refuse bail without prejudice to action under Section 446 where a person fails to comply with the conditions of bail bond giving effect to the view expressed by this Court in the abovementioned cases. However, it is well settled that bail granted to an accused with reference to a bailable offence can be cancelled only if the accused (1) misuses his liberty by indulging in similar criminal activity. (2) interferes with the course of investigation. (3) attempts to tamper with evidence of witnesses. (4) threatens witnesses or indulges in similar activities which would hamper the smooth investigation. (5) attempts to flee to another country. (6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency. (7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. 23. (4) threatens witnesses or indulges in similar activities which would hamper the smooth investigation. (5) attempts to flee to another country. (6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency. (7) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. 23. In the present case, the earlier F.I.R. was registered by the wife of the petitioner and the subsequent F.I.R. was lodged by the petitioner. The earlier F.I.R. pertained to the commission of offences punishable under Sections 451, 323, 427, 504 and 506 read with Section 34 of IPC, whereas subsequent F.I.R. pertain to offences punishable under Sections 325, 504 and 506 read with Section 34 of IPC. 24. As per the status report, two F.I.R. were lodged regarding the same incident. F.I.R. No. 73 of 2022 was lodged at the instance of respondent No. 2, whereas F.I.R. No. 74 of 2022 was lodged at the instance of the present petitioner, therefore, it is still to be ascertained who was the aggressor. The matter is pending before the competent Court of law and at this stage, it cannot be said that the liberty was misused by indulging in similar criminal activity. 25. A copy of the F.I.R. No. 74 of 2022, was not placed on record to show that it was related to the previous F.I.R. The police specifically stated in the status report that the condition was not violated. Keeping in view the litigation pending between the parties, it is highly unsafe to conclude, at this stage, that the respondent had violated the condition of bail. 26. In view of the above, the present petition fails and the same is dismissed. 27 The observation made hereinabove shall remain confine to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.