Himachal Pradesh High Court
Suraj Bali vs State Of H.P. And Others on 27 October, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 270 of 2016
Decided on : 27.10.2017
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Suraj Bali ....Petitioner
Versus
State of H.P. and others ....Respondents
Coram:
The Hon'ble Mr. Sandeep Sharma, Judge.
Whether approved for reporting? 1_____
_____________________________________________
For the petitioner : Mr. R.L. Chaudhary, Advocate
For respondents : Mr. P.M. Negi and Mr. M. L. Chauhan,
Additional Advocate Generals.
__________________________________________
Sandeep Sharma, Judge (Oral)
Being aggrieved and dissatisfied with impugned summoning order dated 26.05.2016, passed by learned Chief Judicial Magistrate, Chamba, District Chamba, H. P. in Criminal Complaint filed under Sections 323, 500, 506-II of the Indian Penal Code, petitioner has approached this Court in the instant petition filed under Section 482 of the Code of Criminal Procedure,praying therein for setting aside 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 2impugned summoning order. Before adverting to the factual .
matrix of the case, it may be noticed that this Court had called for record of the Court below for its perusal, which has been perused.
2. Necessary facts as emerged from record are that FIR dated 21.06.2012 came to be lodged at Police Station, Chamba at the behest of Deputy Director (Education), Chamba, who alleged that on 21.06.2012, respondent No. 4 Mr. Mohammad Safi unauthorisedly entered into school premises and gave beatings to petitioner, who happened to be Lecturer in Government Senior Secondary School, Bakani, Tehsil and District Chamba, H.P. As per petitioner, he was saved from the clutches of the respondent No. 4 by his colleagues teaching in the School. On the basis of aforesaid FIR, investigation was carried out by the police and finally challan came to be presented in the Court of learned Chief Judicial Magistrate, Chamba, H.P. against respondent No. 4 for having committed offence punishable under Sections 353 and 332 of the Indian Penal Code.
::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 3Exactly, after one month of lodging of aforesaid FIR by .
petitioner, respondent No. 4 preferred a complaint under Section 200 of the Code of Criminal Procedure in the Court of learned Chief Judicial Magistrate, Chamba, District Chamba, H.P. alleging therein that on 21.06.2012, when he had gone to Government Senior Secondary School, Bakani, Tehsil and District Chamba, H.P. for collecting his marks sheet and character certificate, he was insulted and humiliated by petitioner in presence of other students namely Mr. Manoj Kumar and Mr. Vijay Kumar, who had also gone to the school for collecting their marks sheets and character certificates. In the aforesaid complaint, respondent No. 4 also alleged that petitioner asked him to bring a bottle of liquor because they are meant for this purpose only. Since respondent No. 4 refused to oblige petitioner, he was insulted and humiliated by the petitioner, who called him "Untouchable creature". Taking cognizance of the averments contained in the aforesaid complaint filed by respondent No. 4, learned Chief Judicial Magistrate ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 4 recorded preliminary evidence adduced on record by .
respondent No. 4 and thereafter proceeded to issue summoning order against the petitioner calling upon him to appear in the Court on 18th July, 2016. In the aforesaid background, instant petition came to be filed before this Court.
3. Mr. Chaudhary while referring to impugned summoning order, issued by learned Chief Judicial Magistrate contended that the complaint filed by respondent No. 4 is nothing but a counter blast to FIR lodged by the petitioner, which was admittedly filed on 21st June, 2012. Mr. Chaudhary further contended that respondent No. 4 while approaching learned Chief Judicial Magistrate under Section 200 of the Code of Criminal Procedure, failed to disclose the factum with regard to lodging of FIR by the petitioner and as such true facts qua the dispute, if any, inter-se parties never came to the knowledge of the learned Magistrate, who merely on the basis of one sided storey put-forth by respondent No. 4, ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 5 proceeded to issue summoning order to petitioner. While .
concluding his arguments, Mr. Chaudhary forcibly contended that this Court taking note of factual aspect of the matter, as is evident from the documents adduced on record, has wide power under Section 482 of the Code of Criminal Procedure to quash the impugned summoning order issued by learned Chief Judicial Magistrate.
4. Mr. N.K. Thakur, learned Senior Advocate, duly assisted by Ms. Jamuna, Advocate, while refuting the aforesaid submissions having been made by learned counsel representing the petitioner, vehemently contended that there is no scope of interference what-so-ever, of this Court in view of cognizance taken by learned Chief Judicial Magistrate on the complaint having been filed by respondent No. 4 under Section 200 of the Code of Criminal Procedure. While inviting attention of this Court to Ex.
CW-1/A adduced on record by respondent No. 4, Mr. Thakur contended that on 21.06.2012 i.e. the date of alleged incident, the matter was immediately brought to ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 6 the notice of District Magistrate, with a request to issue .
direction to police to initiate proceedings against the petitioner. But since no action was taken by the District Magistrate or police on his complaint dated 21.06.2012, respondent No. 4 had no option but to file complaint under Section 200 of the Code of Criminal Procedure.
5. Mr. Thakur further invited attention of this Court to provisions contained under Section 200 CrPC to demonstrate that Magistrate taking cognizance on a complaint, if any, filed under Section 200 CrPC on behalf of victim, had two options i.e. first to grant opportunity to adduce preliminary evidence, if any, in support of his or her complaint, secondly; to hand over the matter to police for investigation. In the case at hand, since respondent No. 4 i.e. complainant, was able to adduce on record preliminary evidence in support of his claim, there was no occasion, as such for learned Magistrate to refer the matter to police for investigation. Mr. Thakur further submitted that it is evident from the statements of witnesses adduced on record by ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 7 respondent No. 4 in support of his claim that on .
21.06.2012, he was insulted and humiliated and was also called 'Untouchable creature' and as such there is no illegality or infirmity in the summoning order issued by learned Chief Judicial Magistrate. Mr. Thakur further argued that correctness of material adduced on record by respondent cannot be adjudicated by this Court, rather, petitioner shall have opportunity before the learned trial Court below to cross examine the complaint. Lastly, Mr. Thakur invited attention of this Court to Judgment in case C.P. Subhash Versus Inspector of Police, Chennai and others, reported in (2013) 11 Supreme Court Cases 559 to suggest that where complainant makes out a prima facie case for alleged commission of offence, High Court in ordinary course should not invoke its powers to quash such proceedings, except in rare and compelling circumstances.
6. I have heard learned counsel for parties and have perused the record.
::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 87. Though, it is apparent from perusal of annexure P-3 .
that FIR dated 21.06.2012 came to be registered against respondent No. 4 at the behest of Deputy Director (Education), Chamba, who on the basis of complaint received by him from petitioner alleged that on 21.06.2017, respondent No. 4 unauthorisedly entered the school premises and thereafter gave beatings to the petitioner, but perusal of complaint i.e. annexure P-5, which admittedly came to be filed on 20th July, 2012 i.e. after one month of lodging of FIR, discloses altogether different facts.
Complainant in his complaint filed under Section 200 of the Code of Criminal Procedure, alleged that on 21.06.2017, when he had gone to collect his certificate from school, he was insulted and humiliated by the petitioner. Respondent No. 4 in support of his claim also examined two witnesses, who supported the version put-forth by the complainant.
8. Now question, which remains to be decided by this Court is whether learned Court was estopped from taking cognizance on the complaint filed by respondent No. 4 ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 9 under Section 200 of the Code of Criminal Procedure in light .
of FIR lodged by the petitioner on 21st June, 2012. It is not in dispute that factum with regard to lodging of FIR by petitioner was not brought to the knowledge of learned Chief Judicial Magistrate, by petitioner, but bare perusal of provisions as contained under Section 200 of the Code of Criminal Procedure, no where persuade this Court to agree with the contention raised by Mr. R.L. Chaudhary, learned counsel representing petitioner that summoning order issued by learned Chief Judicial Magistrate below deserves to be quashed on this sole ground. At the cost of repetition, it may be reiterated that the learned Chief Judicial Magistrate while exercising power under Section 200 of the Code of Criminal procedure had no option but to take cognizance of the complaint, if he had found that there prima facie case is made out, as also of the view that the allegations contained in complaint are true. In case at hand, as is evident from bare reading of preliminary evidence adduced on record, respondent No. 4 was ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 10 successful in satisfying the Court below that on .
21.06.2012, he was insulted and humiliated and as such learned Court below rightly proceeded to summon the petitioner, who shall definitely have opportunity to cross examine the respondent-complainant during trial. This Court finds no force in the argument made by Mr. R.L. Chaudhary, learned counsel representing the petitioner that factum with regard to non-filing of FIR/complaint, if any, immediately after alleged incident by respondent-
complainant itself falsify the story put-forth by respondent No. 4 in the complaint lodged by him under Section 200 of the Code of Criminal Procedure. Perusal of Ex. CW-1/A as has been taken note above, clearly suggest that on 21.06.2012, the respondent immediately approached learned District Magistrate and made a request to direct the police authorities to investigate the matter. This court need not go into the question that why respondent No. 4 had not gone to police directly immediately after the alleged incident, especially when he had approached ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 11 District Magistrate as is evident from perusal of Ex. CW-
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1/A. Otherwise also, there is/was no bar for the respondent-complainant to file complaint, if any, under Section 200 of the Code of Criminal Procedure. This court after having carefully perused the record of Court below, is convenienced and satisfied that the respondent No.4- complainant rmade out a prima facie case for alleged commission of offence, which would justify the impugned summoning order.
9. This Court sees no reason to interfere with the order passed by learned Chief Judicial Magistrate by exercising powers under Section 482 of the Code of Criminal Procedure, which otherwise requires to be exercised sparingly and cautiously, that too to meet the ends of justice. Needless to say, the petitioner shall have reasonable opportunity to cross examine the petitioner as well as evidence adduced on record by him during trial and as such no prejudice what-so-ever shall be caused to the petitioner in case he appears before the Court below.
::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 1210. In this regard reliance is placed upon judgment .
passed by the Hon'ble Apex Court in case titled C.P. Subhash Versus Inspector of Police, Chennai and others, reported in (2013) 11 Supreme Court Cases 559. The relevant paras are as under:-
"7. The legal position regarding the exercise of powers under Section 482 Cr.P.C. or under Article 226 of the Constitution of India by the High Court in relation to pending criminal proceedings including FIRs under investigation is fairly well settled by a long line of decisions of this Court. Suffice it to say that in cases where the complaint lodged by the complainant whether before a Court or before the jurisdictional police station makes out the commission of an offence, the High Court would not in the ordinary course invoke its powers to quash such proceedings except in rare and compelling circumstances enumerated in the decision of this Court in State of Haryana and Ors. v Ch. Bhajan Lal.
8. Reference may also be made to the decision of this Court in Rajesh Bajaj v. State, NCT of Delhi (1999) 3 SCC 259 where this Court observed:
(SCC p.262 para 9).::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 13
9" ...If factual foundation for the offence has .
been laid down in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details. For quashing an FIR (a step which is permitted only in extremely rare cases) the information in the complaint must be so bereft of even r the basic facts which are absolutely necessary for making out the offence."
9. To the same effect is the decision of this Court in State of Madhya Pradesh v. Awadh Kishore Gupta (2004) 1 SCC 691 where this Court said: (SCC p.700. para 11) 11"...The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 14 facts are incomplete and hazy, more so when the .
evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 15 High Court to quash the same in exercise of the .
inherent powers under Section 482 of the Code..."
10. Decisions of this Court in V.Y. Jose and Anr. v. State of Gujarat and Anr. (2009) 3 SCC 78 and Harshendra Kumar D. v. Rebatilata Koley etc. (2011) 3 SCC 351 reiterate the above legal position.
11. Coming to the case at hand it cannot be said that the allegations made in the complaint do not constitute any offence or that the same do not prima facie allege the complicity of the persons accused of committing the same. The complaint filed by the appellant sets out the relevant facts and alleges that the documents have been forged and fabricated only to be used as genuine to make a fraudulent and illegal claim over the land owned by complainant. The following passage from the complaint is relevant in this regard:
".....Thus evidently these two sale deeds being produced by GWL i.e. 1551/1922 dated: 10th March 1922 and 1575/1922 dated 27th June 1922 are forged and fabricated and after making the false documents they were used as genuine ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 16 to make fraudulent and illegal claim over our .
lands and go grab them. The representatives of GWL Properties with dishonest motive of grabbing our lands having indulged in committing forgery and fabrication of documents and with the aid of the forged documents are constantly attempting to criminally trespass into our lawful possessed lands and have been threatening and intimidating the staffs of our company in an illegal manner endangering life and damaging the land. The representatives of GWL properties also have been making false statements to the Government Revenue Authorities by producing these forged and fabricated documents with dishonest intention to enter their name in the Government Records. The present Director-in-charge and responsible for the affairs of the GWL Properties Limited is Mrs. V.M. Chhabria and all the above mentioned acts and commission of offences have been committed with the knowledge of the Directors of GWL Properties Ltd., and connivance for which they are liable. Mr. A.V.L. Ramprasad Varma representing M/s GWL Properties Limited has registered a civil suit in the District Court, ::: Downloaded on - 14/11/2017 18:14:58 :::HCHP 17 Chengalpet using the forged documents. Mr. .
Satish, Manager (Legal), Mr. Shanmuga Sundram, Senior Manager, (Administration), have assisted in fabricating the forged documents and used the same to get patta from Tahsildar, Tambaram, thus cheating the Govt. Officials. Hence we request you to register the complaint and to investigate and take action in accordance with law as against the said company M/s GWL Property Limited represented by Mr. Satish, Manager (Legal) Mr. Shanmudga Sundaram, Senior Manager (Administration), A.V.L. Ramprasad Varma, Directors, and their accomplice who have connived and indulged in fabricating and forging documents for the purpose of illegally grabbing our lands and for all other offences committed by them."
11. Consequently, in view of detailed discussion made hereinabove, as well as law laid down by the Hon'ble Apex Court, this Court sees no reasons to interfere with the orders passed by learned Chief Judicial Magistrate, which otherwise appears to be based upon proper ::: Downloaded on - 14/11/2017 18:14:59 :::HCHP 18 appreciation of material adduced before it by respondent-
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complainant. Hence, there is no force in the instant petition, the same is dismissed alongwith pending application (s), if any.
(Sandeep Sharma)
Judge
October 27, 2017
*brb* r
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