Himachal Pradesh High Court
Rajesh Verma vs State Of H.P. And Another on 14 March, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.405 of 2021 Decided on: 14th March, 2023
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Rajesh Verma .....Petitioner
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Versus
State of H.P. and another .....Respondents
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Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? 1 Yes For the Petitioner: Mr. Neel Kamal Sharma, Advocate.
For the Respondents: Mr. Y.P.S. Dhaulta and Mr. Navlesh Verma, Additional Advocates General with Ms. Seema Sharma and Mr. Sumit Sharma, Deputy Advocates General, for respondent No.1.
Mr. Ashwani Pathak, Senior Advocate with Mr. Dev Raj, Advocate, for respondent No.2.
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Jyotsna Rewal Dua, Judge The petitioner seeks quashing of FIR No.254/2019, dated 04.11.2019, registered against him under Sections 447 and 506 of the Indian Penal Code (IPC) at Police Station Boileauganj, Shimla West, District Shimla.
2. I have heard learned counsel for the parties and gone through the case record.
3. The Case:-
The aforesaid FIR has been registered at the instance of respondent No.2-Smt. Jamna Devi. Her 1 Whether reporters of print and electronic media may be allowed to see the order?::: Downloaded on - 16/03/2023 20:32:43 :::CIS 2
allegations in the FIR were that on 04.11.2019 at around 2:15 pm, while she was tending her flower pots, the petitioner came to the spot. He had come to that spot where he had constructed a store. The said store was constructed .
by him on her land. On reaching the spot, the petitioner attacked her with bricks and stones. He also held her by her throat. The land over which he had constructed the store had been demarcated five times previously. In all the demarcation reports, the store was found to have been constructed by him over her land. For the past two years, she had been repeatedly requesting the authorities for removal of this store from her land. Petitioner had attacked her in past as well. She had not made any police complaint about the previous incident. Further complaint was that the petitioner had threatened to do away with her life as well as lives of her children.
The police investigated the matter. The report under Section 173(2) of the Code of Criminal Procedure (Cr.PC) was presented. In this report, mention was made that the complainant/respondent No.2 was requested to undergo medical examination in view of her allegations of having been beaten by the petitioner with bricks and stones, however, she refused to undertake the medical examination. It is also recorded in the police report that ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 3 demarcation of the land in question was got carried out by the police personnel from the Revenue Department. In the said demarcation, the disputed land was found to be belonging to the complainant.
.
4. Submissions:-
Learned counsel for the petitioner submitted that the case falls under the parameters for exercising the jurisdiction under Section 482 Cr.PC for quashing of the FIR, prescribed by the Hon'ble Apex Court in 1992 Supp (1) SCC 335 (State of Haryana and others Versus Bhajan Lal and others). Following paragraph from the judgment was pressed into service:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 4 under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the .
accused;
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(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) r 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."
Learned counsel for the petitioner submitted that the FIR was registered against the petitioner under Sections 447 and 506 IPC. Even, a bare perusal of the FIR shows that both these offences were not made out against the petitioner. It was also submitted that the FIR in question was counter-blast to an earlier FIR lodged by Smt. Aarti Devi-Sister-in-Law of the petitioner. The said FIR No.253 of 2019, was registered on 04.11.2019, but prior in ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 5 time, i.e. at 17:53 hours, whereas the FIR in question, i.e. FIR No.254 of 2019, was registered at 20:00 hours. Learned counsel highlighted the fact that respondent No.2 had levelled allegations of being beaten by bricks and stones in .
the hands of the petitioner, however, she had refused to undergo medical examination.
Opposing the petitioner's prayer, learned Senior Counsel for respondent No.2 contended that the FIR discloses commission of a cognizable offence. The petitioner is a Tehsildar and has taken advantage of his position. The complainant/respondent No.2 is being denied the use of her property by the petitioner. The FIR pertains to a specific incident, wherein the petitioner had attacked the complainant while she was standing on her land. It was submitted that no case for interference is made out.
5. Observations:-
5(i). It will be appropriate at this stage to take note of the observations of the Hon'ble Apex Court in (2019) 14 SCC 318 (Suresh Kumar Goyal and others Versus State of Uttar Pradesh and another), wherein following steps were delineated for determining the veracity of a prayer for quashment raised by an accused for invoking the power vested in the High Court under Section 482 Cr.PC:-::: Downloaded on - 16/03/2023 20:32:43 :::CIS 6
"12. While dealing with the jurisdiction under Section 482 CrPC to quash the proceedings at the stage of issuance of process, or at the stage of committal, or at the stage of framing of charges, that is to say before the commencement of actual trial, in the light of material placed on record by the accused, this Court in Rajiv Thapar v. Madan Lal Kapoor laid down as under: (SCC pp. 347-48, paras 28-30) .
"28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/ complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 7 care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in .
the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/ complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 8 to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
.
In para 30.5 of the above extracted judgment, it has been held out that in case the judicial conscience of this Court is persuaded to quash the criminal proceedings in exercise of power vested in it under Section 482 Cr.PC for doing justice to the accused, then, the same should be resorted to as it would save precious court time, which would otherwise be wasted in holding a trial, especially when it is clear that the same would not conclude in the conviction of the accused.
In 2021 (12) SCALE 293 (Central Bureau of Investigation (CB) and another VS Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and another), Hon'ble Apex Court considered the scope of review that a High Court exercises while entertaining a petition for quashing of an FIR under Article 226 of the Constitution of India or Section 482 Cr.PC, as under:-
"35. The well settled test is whether, as they stand, the allegations contained in the FIR make out an offence. The locus classicus on this issue is the judgment of a two Judge Bench of this Court in Bhajan Lal (supra), where the Court provided an illustrative set of situations where the High Court may exercise its jurisdiction under Article 226 of the ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 9 Constitution or Section 482 of the CrPC. Delivering the judgment, Justice S Ratnavel Pandian held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent .
powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(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 ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 10 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."
.
36. In a more recent decision of a three Judge Bench of this Court in Neeharika Infrastructure (supra), Justice M R Shah, speaking for the Bench consisting also of one of us (Justice D Y Chandrachud), enunciated the following principles in relation to the Court exercising its jurisdiction under Article 226 of the Constitution or Section 482 of the CrPC:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;::: Downloaded on - 16/03/2023 20:32:43 :::CIS 11
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and .
one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 12 allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers .
under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/ disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
(emphasis supplied)"
::: Downloaded on - 16/03/2023 20:32:43 :::CIS 135(ii). In my considered opinion, petitioner has been able to bring his case within the parameters prescribed by the Hon'ble Apex Court in several pronouncements for exercise of inherent powers under Section 482 Cr.PC. This .
is for the following reasons:-
5(ii)(a). The material on record demonstrates that Smt. Aarti Devi-Sister-in-Law of the petitioner had lodged FIR No.253 on 04.11.2019 at 17:53 hours. In her FIR, she has complained about an incident that happened at around 1:30 pm on 04.11.2019. According to her, Smt. Jamna Devi (present respondent No.2) alongwith one another lady were demolishing Smt. Aarti Devi's (petitioner's sister-in-law) shed (dhara) using spade and a long iron rod. When confronted, said Smt. Jamna Devi attacked her and her Brother-in-Law (present petitioner), who had come to protect her on hearing the noise. As against this, the FIR in question, i.e. 254 of 2019, was got registered at 20:00 hours on the complaint of respondent No.2. In the FIR in question, respondent No.2 speaks about an incident that allegedly happened at 2:15 pm, i.e. after the incident reported by petitioner's Sister-in-Law in FIR No.253 of 2019.
5(ii)(b). In the FIR in question (254 of 2019), respondent No.2 clearly admits that on her land in question, the ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 14 petitioner had constructed a store. Thus, the land over which the store was constructed, was admittedly not in her possession. The FIR has been registered against the petitioner for having committed criminal trespass over the .
property of respondent No.2. Section 441 IPC defines criminal trespass as under:-
"441. Criminal trespass.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
The petitioner was admittedly in possession of the property in question. The offence alleged in the FIR is not made out.
5(ii)(c). The documents on record reveal that the parties are embroiled in a civil dispute with respect to the ownership of the land over which the store is admittedly constructed by the petitioner. In the FIR itself, respondent No.2 has stated that the demarcation of the land, where the store has been constructed by the petitioner has been carried out many times in past. In all the demarcation reports, the land has been found to be belonging to her.
However, Annexure P-6 is an order passed by the Collector, Sub-Division Shimla (Urban), H.P. in Appeal No.1-VIII-
::: Downloaded on - 16/03/2023 20:32:43 :::CIS 152020. In this order passed on 15.01.2021, the operation of the demarcation order dated 02.12.2019 passed by the Assistant Collector 1st Grade in Demarcation Case No.55/2018 between respondent No.2 on the one side and .
father of the petitioner on the other side, was ordered to be stayed. The parties were directed not to alienate and alter the status of the disputed land till the disposal of the appeal. This being a civil dispute, it will be appropriate to refer to a judgment passed by the Hon'ble Apex Court on 30.01.2023 in Criminal Appeal arising out of SLP (Crl.) No.5866 of 2022 (Usha Chakraborty & Anr. versus State of West Bengal & Anr.), wherein, criminal proceedings were quashed after noticing that the attempt was to give a cloak of criminal offence to a civil dispute.
Relevant paras from the judgment are as under:-
"5.1 In Paramjeet Batra v. State of Uttarakhand & Ors., this Court held:-
"12. While exercising its jurisdiction under Section 482 of the Code of the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of the facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 16 Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court."
5.2 In Vesa Holdings Private Limited and Anr. v. State of Kerala and Ors., it was held that:-
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the .
complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings."
5.3 In Kapil Aggarwal and Ors. v. Sanjay Sharma and Ors., this Court held that Section 482 is designed to achieve the purpose of ensuring that criminal proceedings are not permitted to generate into weapons of harassment. 5.4 In the decision in State of Haryana v. Bhajan Lal, a two Judge Bench of this Court considered the statutory provisions as also the earlier decisions and held as under:-
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 17 of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(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 r 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.
5.5 In Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, a three Judge Bench of this Court laid down the following principles of law:-
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 18 has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
.
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference r would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. 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;::: Downloaded on - 16/03/2023 20:32:43 :::CIS 19
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and .
xv) 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."
11. In the aforesaid circumstances, coupled with the fact that in respect of the issue involved, which is of civil nature, the respondent had already approached the jurisdictional civil court by instituting a civil suit and it is pending, there can be no doubt with respect to the fact that the attempt on the part of the respondent is to use the criminal proceedings as weapon of harassment against the appellants. The indisputable facts that the respondent has filed the pending title suit in the year 2015 , he got no case that he obtained an interim relief against his removal from the office of Secretary of the School Managing Committee as also the trusteeship, that he filed the stated application for an order for investigation only in April, 2017 together with absence of a case that despite such removal he got a right to get informed of the affairs of the school and also the trust, would only support the said conclusion. For all these reasons, we are of the considered view that this case invites invocation of the power under Section 482 Cr.P.C. to quash the FIR registered based on the direction of the Magistrate Court in the afore-stated application and all further proceeding in pursuance thereof. Also, we have no hesitation to hold that permitting continuance of the criminal proceedings against the appellants in the aforesaid circumstances would result in abuse of the process of Court and also in miscarriage of justice."
5(ii)(d). Significantly, respondent No.2 in her FIR, had levelled the allegations of having been given beatings with ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 20 bricks and stones by the petitioner. The prosecution in its final report has submitted that respondent No.2 refused to undergo medical examination.
6. Conclusion:-
.
It is well established that jurisdiction under Section 482 Cr.PC is to be exercised sparingly with care and caution. Well defined legal principles for quashment juxtaposed over the allegations levelled by respondent No.2 and the investigations carried by respondent No.1, leave no scope but to hold that instant is a fit case for exercise of inherent power. The offence of criminal trespass has been alleged by respondent No.2 over the land, which is not in her possession. Respondent No.2 though claims that the land belongs to her, but admits that the same has been constructed upon by the petitioner. Her grievance is that a 'dhara' has been constructed by the petitioner over her land and that her repeated requests in past for removal of this 'dhara' have not yielded any positive result. Respondent No.2 might be having some genuine grievance of civil nature with the petitioner, however, the same cannot be redressed by giving the dispute a cloak of criminal proceeding.
Investigating Agency has also found the petitioner to be in possession of the land over which offence of 'criminal trespass' has been alleged against him. In view of his ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 21 possession over the land, the offence is not made. Revenue disputes between the parties relating to demarcation of the land in question are also pending adjudication before the competent Court. The only other allegation levelled in the .
FIR is that of petitioner beating up respondent No.2 with bricks and stones. The investigating agency's report is that respondent No.2 had refused to undergo medical examination. Coupled with these, is the aspect that petitioner's family member had lodged an FIR against respondent No.2 about her attempting to take law in her hands for removing the 'dhara' on the land in question.
That FIR was prior in time to the FIR lodged by respondent No.2 implicating the petitioner.
7. For all the foregoing reasons, it has to be concluded that the FIR has been instituted with an ulterior motive for wreaking vengeance on the accused in order to settle the civil/revenue dispute. For securing ends of justice to prevent abuse of process of law, continuation of the proceedings against the petitioner arising out of FIR No.254 of 2019 are not warranted.
Consequently, the present petition is allowed.
FIR No.254/2019, dated 04.11.2019, registered against the petitioner under Sections 447 and 506 IPC at Police Station ::: Downloaded on - 16/03/2023 20:32:43 :::CIS 22 Boileauganj, Shimla West, District Shimla, H.P. is quashed.
Consequential proceedings are also set aside.
The petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if .
any.
Jyotsna Rewal Dua
March 14, 2023 Judge
Mukesh
r to
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