Himachal Pradesh High Court
Prahlad Kumar Alias Raj Kumar vs State Of Himachal Pradesh And Others on 12 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.102 of 2022 .
Reserved on: 14.12.2023 Date of Decision: 12.01.2024.
Prahlad Kumar alias Raj Kumar ...Petitioner of Versus State of Himachal Pradesh and others rt ...Respondents Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. R.L. Chaudhary, Advocate.
For the Respondents : Mr. R.P. Singh, Deputy Advocate General for respondents-State.
Rakesh Kainthla, Judge The present petition has been filed for quashing the complaint dated 29.8.2020 filed under Sections 8 and 9 of H.P. Good Conduct Prisoners (Temporary Release) Act, 1968 (hereinafter referred to as the Act) and the consequent proceedings arising out of the same FIR.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 12/01/2024 20:36:58 :::CIS 22. Briefly stated, the facts giving rise to the present petition are that the petitioner was convicted for the .
commission of an offence punishable under Section 20(c) of the ND&PS Act. He was sentenced to undergo rigorous imprisonment for a period of 10 years, pay a fine of ₹1.00 lac and to undergo further rigorous imprisonment of one year in default of on payment of the fine. He was serving the sentence in Modern Central Jail, Nahan as per the warrant issued by learned Special rt Judge (Fast Track Court) Chamba. On 14.11.2019, he applied for 42 days parole for agricultural purposes under Sections 3 and 4 of the Act. This application was allowed and 42 days parole was sanctioned in favour of the petitioner. A temporary release warrant dated 15.6.2020 was prepared and forwarded to the learned District Magistrate, Kangra for information and acceptance of the surety bond. The learned District Magistrate, Kangra accepted the bonds after which the petitioner was released temporarily on 26.6.2020 to avail 42 days parole w.e.f.
27.6.2020 till 7.8.2020 with a direction to surrender on 8.8.2020.
The petitioner failed to surrender on 8.8.2020 and violated the provisions of the Act. SHO, Police Station Nurpur was requested to arrest the petitioner. The petitioner surrendered on 21.8.2020.
::: Downloaded on - 12/01/2024 20:36:58 :::CIS 3He violated the terms and conditions of the temporary release warrant and overstayed for 13 days. Hence, a complaint was filed .
to take action against the petitioner.
3. The learned Trial Court summoned the petitioner.
4. The petitioner has filed the present petition for of quashing of the complaint. It was asserted that the petitioner's mother was suffering from cancer and she was under treatment rt from IGMC, Shimla. The petitioner could not report to the Jail authorities due to the ailment of his mother. The petitioner's mother could not recover from illness and she died ultimately.
The petitioner applied for an extension of the parole period, but his prayer was rejected. The petitioner filed CWP No. 2841/2020 which was decided on 18.8.2020. The petitioner surrendered before the Jail authorities but the Jail authorities filed a complaint against the petitioner. The petitioner could not report to the Jail authorities immediately after the expiry of the parole period due to the illness of his mother. There is no fault on the part of the petitioner; hence the present petition for quashing of the complaint.
::: Downloaded on - 12/01/2024 20:36:58 :::CIS 44. The petition is opposed by filing a reply making preliminary submission reproducing the contents of the .
complaint. It was asserted that the petitioner was convicted in two other cases. He abused the provisions of parole. The petitioner's mother expired on 31.8.2021 and 90 days parole was sanctioned in his favour w.e.f. 25.8.2021 to 22.11.2021. There is of no provision for extension of parole beyond the prescribed period and the petitioner was bound to surrender before the rt authorities after the completion of the parole period. Seven days parole was granted to the petitioner from 22.12.2020 to 28.12.2020 for the treatment of his mother. He overstayed the period of parole. The Jail Superintendent is duty-bound to take action for the violation of the provisions of the Act. Therefore, it was prayed that the present petition be dismissed.
5. I have heard Mr. R.L. Chaudhary, learned counsel for the petitioner and Mr. R.P. Singh, learned Deputy Advocate General for respondent-State.
6. Mr. R.L. Chaudhary, learned counsel for the petitioner submitted that the petitioner had a reasonable cause for not surrendering due to the illness of his mother. Therefore, ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 5 he prayed that the present petition be allowed and the complaint be quashed.
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7. Mr. R.P. Singh, learned Deputy Advocate General submitted that the question of reasonableness of the cause is to be decided by the learned Trial Court where the matter is pending and cannot be decided in the proceedings under Section of 482 of Cr.P.C. Hence, he prayed that the present petition be dismissed.
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8. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
9. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 :
(2023) 7 SCC 711 wherein it was observed at page 716:-
17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly.
In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 6 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) "27. ...27.1. Though there are no limits to the .
powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the rt record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 7 bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of .
a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
of 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a "civil wrong" with no "element of rt criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
::: Downloaded on - 12/01/2024 20:36:58 :::CIS 827.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials .
given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence of is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a rt view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to an abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 9 been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
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10. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan of Lal, 1992 Supp (1) SCC 335, this Court held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter rt 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 channelised 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) ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 10 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-
of 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 rt 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 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 11 the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
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(emphasis supplied)
11. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The of allegations are required to be proved during the trial by leading evidence. It was observed:
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10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 12 the accused for which the accused is required to be tried or not".
11. One other reason pointed out by the High Court .
is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the of High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is rt not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
12. It is undisputed that the petitioner did not surrender on 7.8.2020 and surrendered on 21.8.2020. Thus, there was an overstay of 13 days. Section 8 of the Act obliges the prisoner to surrender to the Superintendent of the Jail from which he was released on the expiry of the release period. Section 8(2) provides that if the prisoner does not surrender within 10 days from the date he should have surrendered, he may be arrested by the police officer without a warrant. Section 9 of the Act provides that a person, who is liable to be arrested under Section 8(2) of ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 13 the Act shall be punishable with imprisonment which may extend to two years or both. Therefore, the person who has not .
surrendered within 10 days of the date fixed, is liable to be punished under Section 9 of the Act. In the present case, the petitioner had not surrendered before the Jail authorities within 10 days of the stipulated date; thus, he was liable to be arrested of under Section 8(2) of the Act and he was also liable for the penalty prescribed under Section 9 of the Act.
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13. The petitioner asserted that he had a reasonable cause as his mother was ill. He has relied upon the order passed by this Court in CWP No. 2841 of 2020, titled Parhlad Vs. The Director General of Prisons and another, decided on 18.8.2020, however, the Court had only directed that in case the petitioner filed an application after surrendering, the same would be considered sympathetically. Thus, the Court never extended the period of the parole.
14. Whether the petitioner had a sufficient cause or not and whether the same will mitigate the offence or not is a matter to be adjudicated by the learned Trial Court where the complaint is pending. The petitioner by not surrendering within 10 days ::: Downloaded on - 12/01/2024 20:36:58 :::CIS 14 has prima facie committed the offence under Section 9 of the Act, for which he is liable to be tried.
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15. Therefore, the plea that the complaint does not disclose the commission of a cognizable offence is not acceptable; hence, the complaint cannot be quashed.
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16. In view of the above, the present petition fails and the same is dismissed.
17. rt The observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 12th January, 2024 (Chander) ::: Downloaded on - 12/01/2024 20:36:58 :::CIS