Punjab-Haryana High Court
Dharmender Singh @ Sunny S/O Harjinder ... vs State Of Punjab on 4 March, 2010
Crl. Misc. No. M-36910 of 2009
1
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
Crl. Misc. No. M- 36910 of 2009
Date of decision. 04.03.2010
Dharmender Singh @ Sunny s/o Harjinder Singh, r/o village Sarih, Tehsil
Nakodar, Police Station Nakodar, District Jalandhar.
....... Petitioner
Versus
1. State of Punjab
2. Harjinder Singh s/o Santokh Singh, r/o village Hardo Sekh, Tehsil
Phillaur, District Jalandhar.
........ Respondents
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present:- Mr. T.P.S. Bhatti, Advocate
for the petitioner.
Mr. T.S. Salana, DAG,
for respondent no.1-State.
Mr. Naresh Kaushik, Advocate
for respondent no.2.
--
Sham Sunder, J.
This petition under Section 482 of the Code of Criminal Procedure, for quashing the First Information Report No.24 dated 10.02.2008, under Sections 365, 323, and 324 read with Section 34 of the Indian Penal Code, Police Station Noor Mahal, District Jalandhar, and all the subsequent proceedings, arising therefrom, on the basis of Crl. Misc. No. M-36910 of 2009 2 compromise, has been filed by the petitioner .
2. On 10.02.2008, at about 5/5.30 PM, Harjinder Singh, complainant, had gone to the shop of barber namely Ram of his village Hardo Sekh, District Jalandhar. When he came out of the shop, Jitender Singh alias Hunny, Damanjit Singh alias Daman, Dharmender Singh alias Sunny, and Mankirat Singh alias Many, all rs/o village Sarih, came to him, on two motorcycles. They were already known to Harjinder Singh, complainant. They tried to make him (Harjinder Singh) sit on the motorcycle forcibly. On his refusal, they gave him fist blows. Damanjit alias Daman, attacked him with Datar from reverse side, which hit his left arm. They lifted the complainant and took him away in the Dera of Dharmender alias Hunny, situated near village Sarih. There also they gave fist blows to the complainant. Thereafter, they made him sit on a wooden bench. He somehow escaped from their clutches and reached his village, where his friend Manjeet Kumar son of Dara, after making arrangement of vehicle, got him admitted in Civil Hospital, Noor Mahal. It was stated by him that when he was abducted, Barber namely Ram, and Sarpanch Gurinderjit Singh and Jaswinder Singh son of Dev Raj, all rs/o Hardo Sekh were Crl. Misc. No. M-36910 of 2009 3 present, who witnessed the incident.
2-A. On the basis of the statement of Harjinder Singh, complainant, formal FIR was registered.
3. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully.
4. The Counsel for the petitioner has submitted that a compromise, has been arrived at, between the parties and there remains, no dispute, between them. He has further submitted that since the parties have arrived at a compromise, no useful purpose shall be served, by keeping the proceedings alive. He, thus, prayed for quashing the FIR and the subsequent proceedings, arising therefrom.
5. The Counsel for respondent-
complainant no.2, in reply, as also at the time of arguments, has submitted that the compromise has been arrived at, between the parties. He has further submitted that the differences, between the parties, arose only on account of mis-understanding. He has further submitted that the trial against Jitender Singh alias Hunny, Damanjit Singh alias Daman and Mankirat Singh alias Manny took place, wherein Harjinder Singh son of Santokh Singh resiled Crl. Misc. No. M-36910 of 2009 4 from his statement and, ultimately, they were acquitted. He has further submitted that the petitioner was, however, declared proclaimed offender.
6. The Counsel for respondent no.1-State has, however, submitted that Dharmender Singh, petitioner, has already been declared proclaimed offender. He has further submitted that Dharmender Singh, petitioner being a proclaimed offender, had no locus standi to file the instant petition for quashing the FIR, in question, until and unless, he submitted himself to the jurisdiction of the Court. He has further submitted that the mere fact that the remaining accused have been acquitted, after undergoing the trial, does not mean that the FIR and the subsequent proceedings, at this stage, should be quashed, qua the petitioner.
7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the FIR and the subsequent proceedings, should be quashed. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has Crl. Misc. No. M-36910 of 2009 5 to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations, set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of Crl. Misc. No. M-36910 of 2009 6 justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases:
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 Crl. Misc. No. M-36910 of 2009 7 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 prudgent person can every 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. 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.
Where allegations in the complaint did constitute a cognizable offence justifying registration of a Crl. Misc. No. M-36910 of 2009 8 case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.
8. The inherent powers with which the Criminal Courts are clothed are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised, in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the petitioner deserves the indulgence of the Court or not. The power, under Section 482 Cr.P.C., can be exercised only in the rarest of rare cases. Section 482 Cr.P.C., provides an extra- ordinary remedy, which can be invoked only in exceptional circumstances. The power under Section 482 Cr.P.C., cannot be exercised, when there is an express bar created by any provision of the Cr.P.C., or any other Statute. In the present case, the offence, punishable under Section 365 of IPC is non-compoundable, as per the provisions of Section 320 Cr.P.C. In Surendra Nath Mohanty and another Vs. State Crl. Misc. No. M-36910 of 2009 9 of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non- compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Section 482 Cr.P.C. In the case of Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that merely because the parties had compromised the case, and the payment was made, in proceedings, charged under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up, its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows :
"28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Crl. Misc. No. M-36910 of 2009 10 Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the Crl. Misc. No. M-36910 of 2009 11 cloak of an appeal is disguise."
29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because Crl. Misc. No. M-36910 of 2009 12 they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
9. In view of the enunciation of the principle of law, made in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar created by Section 320 Cr.P.C. for composition of the offence, punishable under Section 365 IPC. Not only this, since the present petitioner was declared proclaimed offender by the Court below, and is still at large, by no stretch of imagination, he deserves the indulgence of the Court, in exercise of the power, under Section 482 Cr.P.C. He, instead of submitting himself to the jurisdiction of the trial Court, and participating in the proceedings, has tried to wriggle out of the clutches of law, by over-reaching Crl. Misc. No. M-36910 of 2009 13 this Court, by resorting to the extra-ordinary remedy under Section 482 Cr.P.C. If the present petitioner, who has thrown the provisions of law, to winds, by breaching the same, with impunity, and considers himself, beyond the reach of law, is shown indulgence, in exercise of the power, vested in this Court, under Section 482 Cr.P.C., then every perpetrator of crime, will feel encouraged, not to abide by the rule of law, and, ultimately, after a very long spell of absence, from the criminal proceedings, in the trial Court, against him, by invoking the inherent power of the Court, would make the mockery of law. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then there will be complete lawlessness in the society. Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings.
10. For the reasons recorded above, petition under Section 482 Cr.P.C., for quashing the First Information Report No. 24 dated 10.02.2008, under Sections 365, 323, and 324 read with Section 34 of the Indian Penal Code, Police Station Noor Mahal, District Jalandhar, and the subsequent proceedings, arising therefrom, is dismissed. Any observation, made in this order, shall not be taken, as an Crl. Misc. No. M-36910 of 2009 14 expression of mind on merits of the case.
11. The Registry is directed to comply with the order immediately.
04.03.2010 (SHAM SUNDER)
dinesh/preeti JUDGE