Gujarat High Court
Navalsang Hamubhai Parmar vs State Of Gujarat & 6 on 7 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/7877/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7877 of 2016
With
SPECIAL CRIMINAL APPLICATION NO. 9665 of 2016
With
SPECIAL CRIMINAL APPLICATION NO. 7591 of 2016
With
CRIMINAL MISC.APPLICATION NO. 34787 of 2016
In
SPECIAL CRIMINAL APPLICATION NO. 7877 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== NAVALSANG HAMUBHAI PARMAR....Applicant(s) Versus STATE OF GUJARAT & 6....Respondent(s) ========================================================== Appearance:
MR BM MANGUKIYA ADVOCATE WITH MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 MR BHARGAV BHATT ADVOCATE WITH MR VIRENDRA BAHETI, ADVOCATE for the Respondent(s) No. 7 MS SHRUTI PATHAK, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Page 1 of 20 HC-NIC Page 1 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT Date : 07/02/2017 ORAL COMMON JUDGMENT 1 Since the issues raised in all the captioned writ applications are interrelated, those were heard analogously and are being disposed of by this common judgment and order.
2 The Special Criminal Applications Nos.7877 of 2016 and 9665 of 2016 have been filed by the accused persons, praying for quashing of the First Information Report bearing C.R. No.I32 of 2016 dated 3rd July 2016 registered at the Chuda Police Station, District: Surendranagar for the offence punishable under Sections 307, 504 read with 114 of the Indian Penal Code. Whereas the Special Criminal Application No.7591 of 2016 has been filed by the original first informant with a prayer to transfer the investigation of the First Information Report being IC.R. No.32 of 2016 registered with at the Chuda Police Station, District:
Surendranagar to any higher ranking officer or any other Investigating Agency.
3 Let me first deal with the two writ applications filed by the two accused persons for quashing of the First Information Report. One Bharatbhai Dharamshibhai Oganiya, a resident of village: Kanthariya, Taluka: Chuda, District: Surendranagar lodged a First Information Report on 3rd July 2016 at about 2 O'clock in the early morning, for an incident, which occurred on 2nd July 2016 at about 10:30 hours in the night. He along with one Ghanshyamsinh Shukhdevsinh Rana had gone to the village: Sontha to pay their condolences to the family members of one Arjanbhai Rabari who had passed away. After paying visit at the house of Arjanbhai Rabari, they left for village: Kanthariya on a motorcycle at about 10:15 hours in the night. Ghanshyamsinh was riding Page 2 of 20 HC-NIC Page 2 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT the motorcycle and the first informant was the pillion rider. Just before about one and half kilometers from the village: Kanthariya, a white coloured car came from behind i.e. from the direction of village: Sontha and intercepted the motorcycle. Two persons came out of the car, namely, Ranjitsinh Hemubha and Navalsinh Hemubha. The first informant could identify both those persons in the headlight of the motorcycle.
Both the persons started hurling abuses. It is alleged that Ranjitsinh Hemubha caught hold of Ghanshyamsinh, while Ghanshyamsinh was still sitting on the motorcycle, and Navalsinh Hemubha took out a knife and inflicted injuries on the abdomen. Injuries were also inflicted on the head with the knife. Ghanshyamsinh felt down from the motorcycle. On the first informant intervening, both the persons i.e. Ranjitsinh and Navalsinh fled away in their car. It is stated in the F.I.R. that Ghanshyamsinh sustained serious injuries and was blooding profusely. The first informant somehow managed to call for 108 ambulance and got Ghanshyamsinh admitted in the Civil Hospital situated at Limbdi. Having regard to the serious nature of the injuries, Ghanshyamsinh was thereafter shifted to the Sterling Hospital at Rajkot.
4 It appears from the materials on record that the police recorded the statement of Ghanshyamsinh on 4th July 2016. In his statement, he confirmed whatever has been stated in the First Information Report. It also appears that thereafter, on 4th July 2016 at about 14:20 hours, the Executive Magistrate recorded the dying declaration of Ghanshyamsinh. In the dying declaration also, he stated what has been alleged in the F.I.R.
5 The medical officer of the Civil Hospital at Limbdi issued a certificate dated 11th July 2016 stating as under:
Page 3 of 20HC-NIC Page 3 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT "CERTIFICATE This is to certify that Shri Ghanshyamsinh Sukhdevsinh aged about 40 year was brought to the Hospital at 11:15 P.M. hours on the dated 02/07/16 with Police constable buckle No._____ (without yadi) for the following injuries.
End detained in the Hospital, was treated in the Hospital Assaulted by knife at 10: 30 P.M. at Sonatha and between Kanthariya, a scuffle took place.
Patient : Semiconscious.
History given by patient relative (Bharatbhai Dharmshibhai Devipujak) Assaulted by (1) Navalsinh Hemibha Parmar (2) Ranjitsinh Hemubha Parmar [1] Stab wound on head 6 x 2 x 1 cm in size Skin deep bleeding, heavy bleeding seen.
(one person catching hold, another person inflicted knife blow. At the time of alleged incident, serving with Devipujak Bharatbhai Dharmshibhai (Kanthariyawala)).
[2] Stab wound on Abdomen four in numbers:
(a) 2 x 1 cm in size
(b) 2 x 1 cm in size
(c) 2 x 1 cm in size
(d) 1 x 1 cm in size
[3] Stab wound on Right hand 6 x 1 x 1 cm in size, superficial in nature.
Nature of injuries: As per Expert opinion.
Cause of injuries : Sharp object.
Approximate time of injuries : Fresh.
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Recovery period: As per Expert opinion."
6 The Sterling Hospital at Rajkot issued a certificate dated 16th July
2016 as under:
"Local examination : Abdomen : 3 stab would present.
1) 2 x 0.5 cm size, elliptical shape, 4 cm deep, skin SC, muscle cut, oozing present, RHC region, mid clavicular line, oblique upwards direction both edge and margin is sharp cut.
2) 2 x 0.5 cm size, elliptical shape, 4 cm deep, right lumbar, AAL region, skin SC, muscle cut, oozing present, oblique downwards direction, both edge and margin is sharp cut.
3) 1.5 x 0.5 cm in size, elliptical shape, 3 cm deep, right lumber, MAL region, skin SC and muscle cut, oozing present, oblique upwards direction, both edge and margin is sharp cut.
Hand:
9 x 0.5 cm size, elliptical shape, 0.5 cm deep, right hand Palmer's surface, skin SC, tissue cut, both edge and margin in shape cut, movement and sensation not examined on right side as pt. is unconscious.
Head:
Sutured wound open 5 x 1 cm size, elliptical shape, 2 cm deep left temporal region, skin SC, galea cut, clot present, bleeding present, both edge and margin is sharp cut.
On 07/07/2016, Pre operative major blood investigation done.
On 03/07/2016, CT Brain done : No significant intracranial structural abnormality detected.
On 03/07/2016, CT Thorax done: No evident abnormality detected.
On 03/07/2016, MSCT Scan of Abdomen with Pelvis done: Subcutaneous air foci are seen in right lower quadrant of abdomen without evident penumoperitoneum or significant peritoneal collection.
Reference of Dr. Gaurang Vaghani was done for head injury.
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On 03/07/2016, Chest X Ray AP done: No evident displaced rib fracture is seen.
On 03/07/2016, Exploration of Wound + Debridement + Suturing done by Dr. Kaushik Kotak.
Blood investigation suggestive of HB was low so PCV given.
On 04/07/2016, Chest X Ray AP done: Note is made of Ryle's tube.
On 05/07/2016, MSCT Scan of Abdomen with Pelvis done: Subcutaneous air foci are seen in right lower quadrant of abdomen without evident penumoperitoneum. Note is made of bilateral minimal to mild pleural effusion with basal .... Mild diffuse abdominal wall oedema and minimal ascites is seen.
Reference of Dr. Chirag Matravalilda was done for medical management as HB was low advised for blood transfusion.
Patient was haemodynamically stable So, shifted to ward on 05/07/2016.
On 09/07/2016, CT Brain done: No significant intracranial structural abnormality detected.
On 09/07/2016, USG Abdomen with Pelvis done: Very minimal ascites is seen.
On 10/07/2016, Patient had complained of vertigo and fall down in bathroom.
On 10/07/2016, Dr. Gaurang Vaghani advise for MRI brain. On 11/07/2016, MRI Brain done which shows no infarction and haemorrhage.
ON 11/07/2016, Chest X Ray PA done: Bilateral apical pleural thickening is seen. Rest of the lung fields appear hyperinflated and show thickened vascular markings.
On 12/07/2016, Patient developed redness around abdominal wound.
On 14/07/2016, Wound redness same with serious discharge.
On 15/07/2016, Redness reduced slowly.
Patient's ward stay was uneventful.
On 16th July, 2016 patient was absconded from the Sterling Hospital, Page 6 of 20 HC-NIC Page 6 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT Rajkot.
We have informed to Chuda Police Station and local police station of Rajkot for absconded the patient."
7 It appears that since one F.I.R. was registered in the near past against the injured i.e. Ghanshyamsinh, he apprehending arrest in connection with the said F.I.R., absconded from the hospital on 16th July 2016.
8 Mr. Mangukiya, the learned counsel appearing for the applicants vehemently submitted that the First Information Report is palpably false ans is nothing, but a counter blast to the earlier F.I.R. lodged by his clients against the injured and others. He submitted that in fact, at the relevant point of time, his clients were in a programme of Bhajan organised in the village at the house of Rabari Arjanbhai Bhim. Mr. Mangukiya invited my attention to the affidavits filed by various persons who were in the programme of Bhajan. The idea in placing reliance on such affidavits is to establish that the programme of Bhajan started at about 10:30 hours in the night. In short, Mr. Mangukiya has raised the plea of alibi. According to him, at the relevant point of time, his clients could not have been present at the spot of the incident as alleged since they were in the programme of Bhajan. Mr. Mangukiya submitted that there is a long standing enmity between the parties which led to filing of the two First Information Reports in the past, one being IC.R. Nos.17 of 2016 and 18 of 2016 respectively. Mr. Mangukiya further submitted that Ranjitsinh Hemubha is a Vice President of the Panchayat, whereas Navalsinh Hemubha is an I.I.S. (Indian Information Service). Only with a view to ruin the career of both the persons, the incident as alleged has been concocted.Page 7 of 20
HC-NIC Page 7 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT 9 Mr. Mangukiya further submitted that the Investigating Officer had preferred an application in the Court of the learned Judicial Magistrate First Class dated 10th July 2016 seeking permission to subject Bharat Organiya and the injured witness Ghanshyamsinh to a Lie Detection Test. The said application was rejected by the learned Magistrate vide order dated 19th September 2016. He seeks to rely upon the order passed by the learned J.M.F.C., because there is some reference that his clients might be innocent.
10 In such circumstances, Mr. Mangukiya prays that the F.I.R. be quashed.
11 On the other hand, both the writ applications filed by the accused persons have been opposed by the learned Additional Public Prosecutor appearing for the State and Mr. Bhargav Bhatt, the learned counsel appearing for the original first informant. Both the learned counsel submitted that the matter is at the stage of investigation. The plain reading of the First Information Report discloses commission of a very serious offence of an attempt to commit murder punishable under Section 307 of the Indian Penal Code. They submitted that the plea of alibi cannot be considered at this stage, more particularly, when the investigation is still in progress. The allegations levelled in the F.I.R., the statement of the injured and his dying declaration are fully corroborated by the medical evidence on record. The distance between the place of occurrence and the place where the programme of Bhajan was organised at the relevant point of time is just about one and half kilometers. Mr. Bhargav Bhatt, the learned counsel appearing for the first informant submitted that the plea of alibi is falsified by the affidavits produced before the Investigating Officer. The affidavits of various persons Page 8 of 20 HC-NIC Page 8 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT residing in the village would suggest that the Bhajan started after 10:30 hours in the night. He submitted that the defence of counter blast was considered by a Coordinate Bench while considering the Special Criminal Application No.4377 of 2016 filed in connection with the F.I.R. being IC.R. No.18 of 2016. He submitted that the Coordinate Bench declined to quash the F.I.R. being IC.R. No.18 of 2016 lodged against the accused persons in the past.
12 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the First Information Report should be quashed at this stage.
13 The Supreme Court in the case of Padma Charana Behra vs. State of Orissa and others reported in 2009 Criminal Law Journal 2585 held in paras 6, 7, 10 to 27 as under:
"6. The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can 'softpedal the course of justice' at a crucial stage of investigation/proceedings. (Vide State of West Bengal v. Swapan Kumar Guha, AIR 1982 SC 949 : (1982 Cri LJ
819); Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709 : (1988 Cri LJ 853). The Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892 : (1993 Cri LJ 600); Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, AIR 1996 SC 309 : (1996 Cri LJ 381);
G. Sagar Suri v. State of U.P., AIR 2000 SC 754 : (2000 Cri LJ 824) and Ajay Mitra v. State of M.P., AIR 2003 SC 1069 : (2003 Cri LJ 1249).
7. Similar view has been taken by the Apex Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 4 SCC 70; Vir Prakash Sharma v. Anil Kumar Agarwal, (2007) 7 SCC 373 : (2007 Cri LJ Page 9 of 20 HC-NIC Page 9 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT 3735); Didigam Bikshapathi v. State of Andhra Pradesh, (2008) 2 SCC 403 : (2008 Cri LJ 724) and Sunita Jain v. Pawan Kumar Jain, (2008) 2 SCC 705.
10. In L. V. Jadhav v. Shankarrao Abasaheb Pawar, AIR 1983 SC 1219 : (1983 Cri LJ 1501) the Apex Court held that Court's power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the High Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceedings against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations.
11. In Trisuns Chemical Industry v. Rajesh Agarwal, (1999) 8 SCC 686 : (1999 Cri LJ 4325) the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj v. State N.C.T. of Delhi, AIR 1999 SC 1216 : (1999 Cri LJ 1833) and observed that the inherent power of the High Court should be limited to very extreme exceptions.
12. In State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, the Hon'ble Supreme Court laid down the guidelines for exercising the inherent power 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 cognizance offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S. 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 noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S. 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 Page 10 of 20 HC-NIC Page 10 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT 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 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.
13. In Ganesh Narayan Hegde v. S. Bangarappa, (1995) 4 SCC 41 :
(1995 Cri LJ 2935) an earlier decision in Mrs. Dhanalakshmi v. R. Prasanna Kumar, AIR 1990 SC 494 : (1990 Cri LJ 320) has been cited with approval for the proposition that there should be no undue interference by the High Court as no meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at this stage. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges.
14. In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, AIR 2005 SC 9 : (2005 Cri LJ 92) the Hon'ble Apex Court held that criminal proceeding's can be quashed but such power is to be exercised sparingly, carefully with caution and only when such exercise is justified by the tests specifically laid down in the statutory provisions itself. It is to be exercised ex debito justitiae to do real and substantial justice for administration of which alone Courts exists. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. A case where the FIR or the complaint does not disclose any offence or is frivolous, vexatious or oppressive, the proceedings can be quashed. It is, however, not necessary that at this stage there should be meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. The allegations have to be read as a whole.
15. In State of W.B. v. Narayan K. Patodia, AIR 2000 SC 1405 : (2000 Cri LJ 1811), the Apex Court observed that lodging an FIR is only the first step of investigation by the police. Premature quashing of the FIR at the initial stage instead of serving the cause of justice, harmed it. The inherent powers of the High Court are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or Page 11 of 20 HC-NIC Page 11 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT otherwise to secure the ends of justice".
Thus, in view of the above, law can be summarized on the subject that criminal proceedings/FIR/complaint is liable to be quashed only if the Court comes to the conclusion that the FIR or complaint does not disclose any offence or is frivolous, vexatious or oppressive. Power of quashing can be exercised by the Court only in exceptional circumstances wherein the Court is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of the process of the Court or that the interest of justice otherwise calls for quashing of the FIR or complaint.
LIMITATIONS ON EXAMINING QUESTIONS OF MALA FIDE IN QUASHING APPLICATIONS UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE
16. The issue of mala fide decided by the Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal (Reported in 1992 Cri LJ 527) (supra) held as under : "At this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides." (Emphasis added)
17. In Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877 :
(1987 Cri LJ 793) the Hon'ble Apex Court while dealing with the issue of mala fides in criminal law observed as under : "It is well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant." (Emphasis added)
18. Similarly, in State of Bihar v. J. A. C. Saldanha, (AIR 1980 SC 326) (supra), the Apex Court has held as under : "It must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produced unimpeachable evidence disclosing the offence." (Emphasis added)
19. In Sarjudas v. State of Gujarat, 1999 (8) SCC 508 : (2000 Cri LJ
509) the Hon'ble Supreme Court held that there must be cogent evidence Page 12 of 20 HC-NIC Page 12 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT of mala fides or malicious intention of the informant or the complainant for taking note of the allegations of mala fide. The bald statement in this respect is not sufficient.
20. In State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540, it has been held that probabilities of the prosecution version cannot be analyzed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus :
"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." (Emphasis added)
21. In M. Narayandas v. State of Karnataka, (2003) 11 SCC 251 :
(2004 Cri LJ 822) the Apex Court rejected the contention that proceedings were liable to be quashed as the same stood initiated on account of personal vendetta observing that complaint has to be tested and weighed after the evidence is collected.
22. Similar view has been explained by the Apex Court in State of Bihar v. Shri P. P. Sharma, AIR 1991 SC 1260 : (1991 Cri LJ 1438) and Zandu Pharmaceutical Works Ltd. (2005 Cri LJ 92) (supra).
23. Thus, it is evident that in case there is sufficient evidence against the accused, which may establish the charge against him, even if the bias/mala fide is established, the proceedings cannot be quashed.
DEFENCE AND INVESTIGATIONAL MATERIAL NOT TO BE CONSIDERED AT THIS STAGE :
24. In Savita v. State of Rajasthan, (2005) 12 SCC 338, it has been held that at the stage when investigation had not even started and chargesheet had not been submitted the High Court could not take into consideration extraneous material given by the party concerned for reaching the conclusion that no offence was disclosed. This in fact was too premature a stage for the High Court to give such a finding when even the investigation had not started and the investigating agency had no occasion to find out Page 13 of 20 HC-NIC Page 13 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT whether there was material to file a chargesheet or not.
25. Similarly in State of T. N. v. Thirukkural Perumal, (1995) 2 SCC 449, it has been held that it is impermissible to quash criminal proceedings based on evidence collected by the investigating agency during investigation. The Court held as under: "The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not Justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition.....seeking the quashing of the FIR and the criminal proceedings."
26. In S. M. Datta v. State of Gujarat, (2001) 7 SCC 659 : (2001 Cri LJ 4195) the practice of the High Court in scuttling criminal proceedings at the initial stage was criticised, except in the rarest cases where the same amounted to abuse of the process of law. Only broad allegations were to be seen and genuineness of the FIR could not be looked into at this stage. The Court observed as under : "Criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than an ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude, neither is it a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. It is in this context, however, one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be so scuttled. The first information report needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law 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.(Emphasis added)"
27. In M/s. Medchl Chemicals and Pharma (P) Ltd. v. M/s. Biological E. Ltd., AIR 2000 SC 1869 : (2000 Cri LJ 1487) the Apex Court observed Page 14 of 20 HC-NIC Page 14 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT that the complaint or chargesheet can only be quashed in the rarest of rare exceptional case, but where the allegations on the face of the complaint do not constitute an offence, criminal proceedings may be unhesitantly quashed. The Court held as follows : "Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the chargesheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the provision. With the lodgment of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The Jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or chargesheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount.(Emphasis added)"
14 Bearing in mind the principles laid down by the Supreme Court referred to above, I am of the view that a prima facie case is made out, and therefore, at this stage, it is not legally permissible for this Court to interfere with the investigation and quash the F.I.R. It would not be proper or rather impermissible for this Court to consider the merits of the allegations or test the veracity of the allegations. I should not ignore the caution sounded by the Supreme Court that 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 evidences have not been collected and produced before the Court.
15 As regards the plea of alibi, I can do no better than refer to and
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rely upon the decision of the Supreme Court in the case of Rajendra Singh vs. State of Uttar Pradesh reported in (2007 ) 7 SCC 378 wherein the Supreme Court observed as under:
"7. That apart, the plea taken by the respondentKapil Dev Singh in his petition under Section 482, Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to section 103 reads as under :
"B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it."
This provision makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition filed by him under Section 482, Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. See Gurcharan Singh v. State of Punjab, AIR 1956 SC 460; Chandrika Prasad Singh v. State of Bihar, AIR 1972 SC 109 and State of Haryana v. Sher Singh, AIR 1981 SC 1021. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to crossexamine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge.
8. Shri S.R. Singh, learned senior counsel for the respondent No. 2, has submitted that though the statements recorded by the investigating officer under Section 161, Cr.P.C. are not substantive piece of evidence, but the High Court while exercising power under Section 482, Cr.P.C. could have looked into attending circumstances, namely, the statements and the affidavits filed by some of these persons before the Superintendent of Police, Allahabad. Learned counsel has also submitted that the summoning order itself must exhibit special circumstances warranting such a course of action and if no special circumstances are demonstrated in the order, the summoning order is per se illegal. Learned counsel has further submitted that the trial of coaccused Daya Singh has concluded and he has been acquitted by the learned Sessions Judge and in such circumstances it will not be a sound exercise of discretion to set aside the order passed by the Page 16 of 20 HC-NIC Page 16 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT High Court and restore that of the learned Sessions Judge.
9. Shri Manoj Goel, learned counsel for the appellant, has, on the other hand, submitted that the name of Kapil Dev Singh was mentioned in the FIR and a specific role was attributed to him. In his statement in Court the first informant Rajendra Singh had corroborated the version given in the FIR and had not only mentioned about the presence of Kapil Dev Singh at the scene of commission of the crime but had assigned specific role to him. He has also submitted that having regard to the background of the case, viz., the earlier tripple murder case in which Nigam Singh was the first informant and the main eyewitness, the accused had a strong motive to commit his murder. Learned counsel has thus submitted that the ingredients of Section 319, Cr.P.C. were fully satisfied and the learned Sessions Judge had rightly exercised the power and had summoned the accused. Shri Goel has also submitted that in the present case, the learned Sessions Judge while acquitting the coaccused Daya Singh in the trial which concluded much later has referred to the impugned order of the High Court dated 24.4.2006 at several places in the judgment and has observed that fifty per cent of the prosecution case has already been disbelieved by the High Court. Learned counsel has also made a statement that the first informant Rajendra Singh has filed Criminal Revision No.1828 of 2007 (Rajendra Singh v. Daya Singh) challenging the acquittal of Daya Singh which has been admitted by the High Court on 11.7.2007 and is pending for hearing.
10. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161, Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482, Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161, Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained."
16 Thus, the dictum laid down by the Supreme Court is that the High Court should not record any finding on a plea of alibi in a petition under Section 482 of the Cr.P.C. The burden to prove the alibi lays upon the accused, which he could do by leading appropriate evidence in the trial and not by filing some affidavits or statements purported to have been Page 17 of 20 HC-NIC Page 17 of 20 Created On Sat Aug 12 12:31:45 IST 2017 R/SCR.A/7877/2016 JUDGMENT recorded under Section 161 of the Cr.P.C.
17 In the overall view of the matter, I have reached to the conclusion that I should not interfere at this stage and permit the investigation to proceed further in accordance with law.
18 In the result, the Special Criminal Applications Nos.7877 of 2016 and 9665 of 2016 are rejected.
19 It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question whether the F.I.R. should be quashed or not and shall not be construed as an expression of the final opinion.
20 The above takes me to consider the Special Criminal Application No.7591 of 2016 filed by the first informant for transfer of the investigation to any higher agency.
21 The ground urged in this writ application is that the investigation is not proceeding in the right direction and is not being carried out impartially. The police is trying to softpedal the issue and is indirectly helping the accused persons.
22 On behalf of the State, an affidavitinreply has been filed duly affirmed by the Deputy Superintendent of Police inter alia stating as under:
"2 I say and submit that the deponent herein is serving as Dy.S.P. Surendranagar Division, Surendranagar and the deponent is appointed as the investigating officer with respect to an FIR being CRI32 of 2016 which has been registered with the Chuda Police Station, Surendranagar for offences u/s. 307, 504, read with Section 114 of the IPC. The deponent herein has taken charge of the investigation with repct to the aforesaid FIR with effect from 10.07.2016.
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3 I say and submit that the deponent herein is filing this affidavit
incompliance of the order dated 08.11.2016 passed by the Hon'ble Court whereby the Hon'ble Court had directed the investigating officer to file an appropriate reply indicating the investigation which has been carried out so far.
4 I say and submit that earlier the investigation was done by the PSI of Chuda Police Station however, upon instruction the deponent herein has taken over charge of the inquiry. I say and submit that after taking over charge of the investigation of CRI32 of 2016, the statements of the witnesses have been taken by the deponent herein. The earlier investigating officer had prepared Panchnama of the place of the incident and had collected necessary. The samples of clothes as well as blood were taken by the concerned officer. Thereafter, the deponent herein has taken statements of the accused persons. The accused persons namely Navalsing Hemubhai Paramar had given an application to the District Superintendent of Police, Surendranagar to carry out the investigation properly as per his say, he had stated that he and accused no.2 were falsely involved in the offence as at the time of incident, he as well as the accused no.2 were attending a bhajan at the place of Arjanbhai Rabari at village Sontha. During the investigation, the deponent herein also recorded the statement of in all total seven witnesses who have stated that both the accused no.1 and 2 were attending the bhajan program at village Songtha between 9 p.m. to 12.30 a.m. 5 I say and submit that the investigation at present is in progress and the authorities are ceased of the investigation of the aforesaid FIR. During the course of investigation, an application was given by my predecessor before the Court of Judicial Magistrate, First Class at Chuda for seeking permission for lie detection test to be conducted upon the complainant as well as the victim. I say and submit that the injured persons namely Ghanshyamsing Sukhdev Singh had filed objection opposing to such approval for life detection test. The Ld. JMFC Court, Chuda vide order dated 19.09.2016 rejected the application preferred by the authorities for life detection test.
6 I say and submit that thereafter, subsequently, another application was preferred on 07.10.2016 by the authorities seeking permission of the Ld. JMFC Court, Chuda for seeking approval / permission for life detection test of the accused. The said application was rejected by the Ld. JMFC Court, Chuda vide orderr dated 24.10.2016. The deponent herein has therefore, vide communication dated 24.10.2016 forwarded communication to the District Government Pleader, Surendranagar for preferring Criminal Revision Application for challenging the order dated
23.10.2016 passed by the JMFC Court, Chuda.
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7 I say and submit that the Revision Application has been preferred
before the Sessions Court, Limdi which has been numbered as Criminal Misc. Application No.28 of 2016 and the same was pending for adjudication.
8 I say and submit that the investigation is in progress and the investigating officer is still investigating into the matter. I say and submit that to the best of the ability of the deponent herein, efforts are made to see that truth comes out. I say and submit that at this stage, the apprehension of the applicant is permature that the investigation is not carried out diligently. I say and submit that the investigating authority is also trying to trace out the location and call details of the person involved."
23 Having heard the learned counsel appearing for the parties and having considered the materials on record, I am not inclined to transfer the investigation at this point of time. I expect the Investigating Officer, who is of the rank of the Deputy Superintendent of Police, to proceed further with the investigation in accordance with law. The investigation shall be conducted in a fair and transparent manner. I direct the Superintendent of Police to monitor the investigation and see to it that the same is conducted fairly, transparently and impartially.
24 With the above, the Special Criminal Application No.7591 of 2016 is also disposed of. Notice is discharged.
25 In view of the order passed in the main matter, the connected application being Criminal Miscellaneous Application No.34787 of 2016 is also disposed of. The interim relief, if any, is vacated forthwith.
(J.B.PARDIWALA, J.) chandresh Page 20 of 20 HC-NIC Page 20 of 20 Created On Sat Aug 12 12:31:45 IST 2017