Himachal Pradesh High Court
Gurnam Singh And Others vs State Of Himachal Pradesh And Another on 10 April, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr. MMO No. 28 of 2019
Date of decision : 10th April, 2019
___________________________________________________________
Gurnam Singh and others ...Petitioners.
Versus
State of Himachal Pradesh and another ...Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No
For the Petitioners : Ms. Radhika Gautam and Mr. Atul
Verma, Advocates.
For the Respondents : Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs., with Mr.
Bhupinder Thakur, Dy. A.G., for
respondent No.1.
None for respondent No.2.
Tarlok Singh Chauhan, Judge (Oral)
The petitioners by medium of this petition under Section 482 of the Code of Criminal Procedure has sought quashing of FIR No. 57 of 2013 registered at Police Station, Swarghat on 17.9.2013 under Sections 143, 430, 447, 448, 120B IPC (for short the 'Code') and Sections 3 (1) (5), 3 (1) (13) and 3 (2) (7) of the Scheduled ____________________ Whether reporters of Local Papers may be allowed to see the Judgment? Yes ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 2 Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 .
(for short the 'Act') and criminal proceedings arising therefrom i.e. Criminal Case No. 175/2 of 2015 and C.No. 370/2015 pending before the Court of learned Judicial Magistrate 1 st Class, Bilaspur, H.P.
2. Notice of this petition was issued to respondent No.2/ complainant, who despite service failed to put in appearance.
3. It appears that during the year 2003, the residents of two villages, namely, Dadwal and Khurni got sanctioned a Government water supply scheme known as 'Vikas Main Jan Sahyog'. A dispute arose amongst the villagers of the aforesaid villages. The matter finally reached this Court when respondent No.2 filed a writ petition i.e. CWP No. 2096 of 2010 titled Vir Singh vs. State of H.P. and others and claiming therein the following relief:
"i) That the respondents No. 2 and 3 be directed to ensure that supply of drinking water is immediately restored to the residents of Scheduled Caste village Dadwal from the water lifting pump situate at a place known Jharod in Village Dadwal, set up under the scheme known as "VIKAS MAIN JAN SAHYOG KARYAKRAM".
4. In this petition, respondent No.2 prayed for a direction to the official respondents to ensure that the supply of drinking water ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 3 is immediately restored to the residents of village Dadwal from the .
water lifting pump situate at a place known Jharod in Village Dadwal.
5. Initially, the Deputy Commissioner, Bilaspur was directed to submit his report regarding the water supply and thereafter this Court directed the Chairman, District Legal Services Authority to look into the complaint. In compliance to the directions of this Court, the Chairman, District Legal Services Authority, Bilaspur visited the spot on 29.5.2010 and submitted his report which reads:
"I have visited the spot on 29.5.2010 at 8.30 A/M/ as per the direction given by Legal Services Authority alongwith Police officials of Police Station, Swarghat, the rough sketch of the Pump House prepared at spot and photographs were also drawn. The Pump House is locked with two locks. There is only one 2", G.I. Pipe to the water tank situated at village Dhadwal which is about 1000 meter above the pump house side. There is another ½" pipe line for one tap in the temple complex just near to the pump house for drinking water to the general public and cattle.
The village Kharuni is also 1 kilometer away from the pump house, but it is at the same level or slightly at the lower level from the pump house. There is no water pipe line connected with pump house to village Kharuni. There is kacha pit about 10 meter away from the pump house in the Nallah and one plastic pipe is lying by the side of the pit which takes water to village Kharuni by gravitational force. There are about 1 to 2 houses only which can get water gravity at village Kharuni. When I passed ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 4 through the village Kharuni then I also noticed taps and G.I. pipe .
which means there is water supply scheme to village Kharuni and that village is also connected with the road. The village Dhadwal is neither connected with any road nor it is having drinking water supply scheme except the water from present source and pump house. The rough sketch of the spot, C.D. of photographs taken with my own mobile phone, black and white print of the photographs are also attached with the report for the perusal of the Legal Services Authority."
6. When the petition came up for hearing on 3.6.2010 this Court passed the following orders:
"We are informed that each parties have their own locks on the pumping system. There will be direction to the parties to remove the locks within 24 hours. In case, the locks are not removed, there will be direction to the Superintendent of Police, Bilaspur to see that the locks are dismantled and water supply is restored as it existed before 20th March, 2010."
7. The writ petition was again listed before this Court on 6.9.2010 on which date the following order came to be passed:
"This petition involves disputed question of facts and law which cannot be settled only by filing affidavits. Faced with this situation, Sh.Rajiv Jiwan, learned counsel for the petitioner prays for leave to withdraw the writ petition with liberty reserved to the petitioner to take out appropriate proceedings in the appropriate forum. Prayer allowed. It is made clear that till the petitioner approaches the civil court and obtains appropriate interim order from the Civil Court the direction dated 3.6.2010 shall continue. It is also made clear that the civil Court will decide the interim application on its ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 5 own merits totally uninfluenced by any order passed by this .
Court."
8. Respondent No. 2 instead of approaching the Civil Court appears to have approached the learned Chief Judicial Magistrate, Bilaspur by invoking the provision of Section 156 (3) of the Code of Criminal Procedure for registration of the criminal case against the villagers of village Khurni and certain other persons, officials etc. including the present petitioners. The learned Chief Judicial Magistrate allowed the complaint and ordered the registration of FIR against the petitioners and other persons and consequently FIR No. 57 of 2013 came to be registered on 17.9.2013.
9. The petitioners have sought quashing of FIR on the ground that it is a grave misuse of the process of law as no offence much less the offences for which they have been charged are made out against the petitioners. It is further submitted that a perusal of the judgment dated 06.09.2010 passed by this Court in CWP No. 2096 of 2010 makes it clear that while allowing the withdrawal of the writ petition, liberty was reserved to the petitioner to take out appropriate proceedings in the appropriate forum, which at best ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 6 could be by way of civil suit, but in no event could respondent No.2 .
be permitted to initiate criminal proceedings, that too, after long lapse of time. It is further argued that respondent No.2 could otherwise not resorted to the remedy under Section 156(2) Cr.P.C.
by filing a private complaint especially when the Chief Judicial Magistrate on earlier two occasions, called for the reports from the police, who in turn, has submitted that no case is made out. It is also argued that the FIR otherwise deserves to be quashed as this Court has already quashed this FIR against one Bhagat Singh Thakur in Cr.MMO No. 4106 of 2013, decided on 17.4.2015.
10. As observed above, the complainant/respondent No.2 has not chosen to appear before this Court despite being served. As regards respondent No.1, even though no formal reply has been filed, but the petition has been opposed on the ground that the proceedings ought not/should not be quashed.
11. I have heard learned counsel for the parties and gone through the records of the case carefully and meticulously.
12. It is not in dispute that the matter is a direct out and fall out as in CWP No. 2096 of 2010. However, if the petitioners have taken law in their own hands, then I really fail to understand why respondent No.2, who admittedly was the petitioner in the aforesaid ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 7 writ petition, failed to bring all these facts to the knowledge of this .
Court, what prevented him from doing so and further why he waited for three months to file complaint under Section 156 Cr.P.C. before the learned Chief Judicial Magistrate, Bilaspur is not forth-coming.
13. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding its true version. In case, there is some delay in filing an FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging an FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint may prove to be fatal. When there is no proper explanation for the delay, the Court can always presume that the allegations were an after thought or that the complainant had given a coloured version of events. The Court has to carefully examine the facts before it, for the reason, that the complainant party may initiate criminal proceedings just to harass the other side with malafide intentions or with ulterior motive of wreaking vengeance. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 8 other party in long and arduous criminal proceedings, the Court may .
take a view that it amounts to an abuse of the process of law.
14. Notably, CWP No. 2096 of 2010 was being monitored by this Court wherein an affidavit of compliance was filed by the Superintendent of Police, Bilaspur. The said affidavit was duly considered by this Court and even therein this Court did not find any action of the petitioners to be uncalled for and more particularly i.e. respondent No.2 did not make out any grievances against the petitioners till the disposal of the writ petition. Therefore, in absence of any explanation for the delay of more than three months, it can safely be concluded that the allegations set-out in the complaint are nothing but an after thought and the complainant has given a coloured version simply to harass the petitioners.
15. The criminal proceedings instituted against the petitioners at the instance of respondent No.2 are manifestly attended with malafide and ulterior motive and, therefore, cannot be sustained.
16. In view of the aforesaid discussion, there is merit in this petition and the same is accordingly allowed and FIR No. 57 of 2013 registered at Police Station, Swarghat on 17.9.2013 under Sections 143, 430, 447, 448, 120B IPC and Sections 3 (1) (5), 3 (1) (13) and ::: Downloaded on - 12/04/2019 21:58:18 :::HCHP 9 3 (2) (7) of the Act insofar as it relates to the petitioners and criminal .
proceedings arising therefrom i.e. Criminal Case No. 175/2 of 2015 and C.No. 370/2015 pending before the Court of learned Judicial Magistrate 1st Class, Bilaspur, H.P., are quashed. Pending application, if any, is also disposed of in view of disposal of the main petition.
10th April, 2019.
r (Tarlok Singh Chauhan)
Judge
(GR)
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