Madhya Pradesh High Court
Bundu Qureshi vs The State Of Madhya Pradesh on 22 March, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
MCRC No.15658/2021
Bundu Qureshi vs. State of M.P. & Anr.
Gwalior, Dated : 22.03.2021
Shri Mohd. Ayub Khan, Counsel for the applicant.
Smt. Uma Kushwah, Panel Lawyer for the respondent/State.
This application under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No.185/2020 registered at Police Station Kailaras, District Morena for offence under Sections 294, 323, 506 of IPC and under Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short Act 1989).
It is submitted by the counsel for the applicant that on 16.5.2020 at about 10:45 AM the complainant lodged a report alleging that at about 8:00 AM he and his mother were digging holes in the earth boundary of their field. The applicant whose field is adjoining to the field of the complainant came there and started abusing the complainant and his mother filthly and also humiliated and insulted him by calling him by his caste name (actual words are not being reproduced). Thereafter, he assaulted his mother on her right hand by an iron rod. When the complainant tried to intervene in the matter, then the applicant assaulted the complainant by means of a sickle, as a result he sustained injury on his forehead. On hearing their cries, his brother-in-law and brother came on the spot and saved the complainant and his mother. While fleeing away, the applicant 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
had also extended a threat that in case if the report is lodged, then he would kill them.
It is submitted by the counsel for the applicant that the FIR is nothing but a counterblast to the FIR lodged by the applicant against the respondent No.2 and other co-accused persons which was registered as Crime No.184/2020 at Police Station Kailaras, District Morena. It is submitted that the FIR was lodged at 9:15 am. In the said FIR, it was alleged that when the applicant went to his field, then he found that the respondent No.2 and other co-accused whose field is adjoining to the field of the applicant were digging in his field. When he objected to it, then he started abusing the applicant. When again it was objected by applicant, then the respondent No.2 assaulted him by a spade whereas the other two co-accused persons had caught hold of his hands. Because of the assault, the applicant sustained injuries on his nose and he somehow managed to save himself.
It is submitted by the counsel for the applicant that since the FIR in question was lodged after the FIR was lodged by the applicant, therefore, it is clear that the FIR lodged by the respondent No.2 was by way of counterblast to the FIR lodged by the applicant. There is nothing on record to indicate that the applicant had humiliated or insulted the respondent No.2. It is further submitted 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
that the FIR can be quashed if the same was lodged with malafide intention of the complainant.
Heard the learned counsel for the applicant. So far as the humiliation or insult of the respondent No.2 by calling him by his caste name is concerned, the Supreme Court in the case of Swaran Singh & Ors. vs. State reported in (2008) 8 SCC 435 has held that calling a member of Scheduled Caste by his caste name with intention to insult or humiliate him in a place within the public view is certainly an offence under Section 3(1)(x) of the Act, 1989. After the amendment in the Act, 1989 calling a person by his caste name even without any intention is an offence under Section 3(1)(s) of the Act, 1989. Undisputedly the incident took place at a place within the public view. Accordingly, this Court is of the considered opinion that prima facie a case has been made out warranting registration of offence under Section 3(1)(r)(s) and 3(2) (va) of the Act, 1989.
So far as the contention of the applicant that the FIR in question has been lodged by way of counterblast is concerned, this Court in exercise of powers under Section 482 of Cr.P.C. cannot adjudicate the said disputed question of fact. Whether the applicant was aggressor or the respondent No.2 was aggressor can only be decided after the trial is conducted.
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THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
It is next contended by the counsel for the applicant that since the applicant is aged about 72 years, therefore, on that ground the FIR may be quashed.
Considered the submission made by the counsel for the applicant.
The counsel for the applicant could not point out any provision of law which requires quashment of FIR only on the ground of age of the accused.
So far as the question of malafides is concerned, the same is a disputed question of fact. Further the Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar and others reported in (2008) 12 SCC 346 has held as under:-
"9. "8. Exercise of power u/s. 482 of CrPC in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of "quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur V/s. State of Punjab, 1960 3 SCR 388 this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:
•(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
•(ii) where the allegations in the first information report or complaint taken at their face value and 6 THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
accepted in their entirety do not constitute the offence alleged;
•(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp.378-
79, para 102) '(1) Where the allegations made in the first 7 THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
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 Act concerned (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 Act concerned, 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."
11. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision, in exercise of this power, is based on 8 THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire 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. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings".
(See Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995(6) SCC 194) , State of Kerala v. O.C. Kuttan (1999(2) SCC 651), State of U.P. v. O.P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999 (8) SCC 728) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC
259).
The above position was again reiterated in State of Karnataka v. M. Devendrappa (2002) 3 SCC 89, State of M.P. v. Awadh Kishore Gupta (2004) 1 SCC 691 and State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540, SCC pp. 547-50, paras 8-11."
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THE HIGH COURT OF MADHYA PRADESH MCRC No.15658/2021 Bundu Qureshi vs. State of M.P. & Anr.
It is well established principle of law that the FIR can be quashed only if the un-controverted allegations made in the FIR do not make out an offence. Defence of the accused cannot be taken into consideration at this stage. Accordingly, this Court is of the considered opinion that no case is made out warranting quashment of FIR.
The petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (alok) Digitally signed by ALOK KUMAR Date: 2021.03.23 18:18:21 +05'30'