Chattisgarh High Court
Shivendra Pratap Singh @ Kuchchu vs The State Of Chhattisgarh on 13 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No. 1924 of 2022
• Shivendra Pratap Singh @ Kuchchu S/o.-Dharmendra Singh, Aged
About 24 Years, R/o Plot No. 803, Near Pahadi Talab, Sunder Nagar,
P.S.-D.D. Nagar, Raipur, Tehsil And District-Raipur (C.G.)
---- Petitioner
Versus
1. The State Of Chhattisgarh Through-Police Station-D.D. Nagar, Raipur,
District-Raipur (C.G.)
2. Sourabh Banjare S/o Late Budhelal Banjare, Aged About 34 Years R/o-
Adarsh Chowk, Sunder Nagar, Police Station-D.D. Nagar, Raipur,
District Raipur (C.G.)
---- Respondent
For Petitioner Mr. DK Gwalre, Advocate
For Respondent /State Mr. CB Kesharwani, Panel Lawyer
SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari
Order On Board
13/2/2023
1. Heard.
2. This petition has been filed seeking quashment of the impugned charge-sheet No.315/2019 dated 16.12.2019 and the consequential criminal proceedings in ST No.17/2020 pending in the Court of Ninth Additional Sessions Judge, Raipur qua the petitioner, filed by Police Station DD Nagar, Raipur.
3. Brief facts of the case are that on the date of the incident i.e. 2.10.2019 at about 23:45 p.m., when the petitioner and his father Dharmendra Singh were going to Paranjal Petrol Pump for filling petrol in their car, deceased Mahant Pathak @ Bulthu Pathak and 2 complainant Sourabh Banjare, who were on a motorcycle (Bullet) started a dispute with them for not putting the head light of their car in dipper while they were crossing each other. When Bhulthu Pathak and complainant Saurabh Banjare started using filthy language against the petitioner, he objected to the same. Thereafter, the petitioner and his father - Dharmendra Singh reached the petrol pump and they were chased by deceased Bulthu Pathak and complainant - Sourabh Banjare, on which, again a quarrel started. In such quarrel, deceased Bulthu Pathak and complainant Sourabh Banjare assaulted the petitioner and his father Dharmendra Singh by knife, on which, Dharmendra Singh, fired a gun shot at deceased Bulthu Pathak and killed him. The allegation against the present petitioner is that he exhorted his father to fire the deceased. The petitioner's father lodged FIR No.340/2019 of the incident at Police Station DD Nagar, Raipur, against deceased Mahant Pathak @ Bulthu Pathak and complainant Sourabh Banjare for the offence under Sections 307, 34 of IPC. Complainant Sourabh Banjare also lodged Dehatinalisi on the same day i.e. 3.10.2019 at 00:45 hours, based upon which, FIR No.341/2019 was registered at the same Police Station for the offence under Section 302, 34 of the IPC against the petitioner and his father.
4. Learned counsel for the petitioner submits that in the charge-sheet itself, it has been categorically stated that deceased Bulthu Pathak and complainant Sourabh Banjare started a dispute and caused a fatal blow on the petitioner and his father Dharmendra Singh by knife and Dharmendra Singh, in order to save his son as also himself, fired a gunshot towards assailant Bulthu Pathak. He submits that in the FIR, which was lodged by the complainant himself, immediately after the incident, no overt act of the present petitioner has been 3 attributed to prove that in any manner, he exhorted or instigated his father to fire towards the deceased. He further submits that the act was done based on the right of private defence, therefore, in such circumstances, Section 34 of the IPC does not attract. For the above submission, he places reliance on the judgment of the Supreme Court in the matter of Gurudatta Mal and others Vs. The State of U.P., AIR 1965 SC 257, in which, it was held that the common intention has relevance only to the offence and not to the right of private defence. He further submits that the complainant has improved his statement and subsequently added the allegation of exhortation against the petitioner in his 161 statement. For such conduct of the complainant, learned counsel places reliance on the judgment of the Supreme Court rendered in the matter of Abdul Wahid Vs. State of Rajasthan, (2004) 11 SCC 241. He submits that in a case, if there is an exhortation on behalf of one accused, he cannot be held guilty for sharing intention with the other accused, who inflicted the injuries. For the said submission, he places reliance on the judgment rendered by the Supreme Court in the matter of Paramjit Singh Vs. State of Punjab, (2005) 10 SCC 143. In the said matter, the appellant/accused therein was unarmed and the other accused was having a kirpan as per the tradition and the only evidence and the part played by the first accused was exhortation by not allowing the deceased to escape. It was held in the said case that no overt act is attributed to the accused to kill the deceased.
5. Reverting back to the present case, learned counsel for the petitioner submits that the prosecution has not brought any material on record to show that the petitioner has exhorted in any manner to fire or kill the deceased. He draws attention of the Court towards the CCTV footage, in which, there is no ingredients available for exhortation. 4 Further, except complainant Sourabh Banjare, the other eye- witnesses, who were present at the time of the incident at the petrol pump and the employees of the petrol pump namely Vasu Yadav, Mordhwaj Sahu, Lalit Sahu, Pradeep Mishra, Khilesh Kurre, Chetan Dewangan and Hridaylal Yadav have also not stated anything against the petitioner with regard to the over act of the petitioner, which in fact has been developed and improved in the subsequent statement made by the complainant. Since the petitioner was inflicted a fatal blow with a knife by the deceased causing stab injury on his chest, which resulted in acute kidney injury and hospitalisation at Shri Jagdamba Multi Specialty Hospital, Raipur from 3.10.2019 to 6.11.2019, the case of the petitioner and his father comes under the purview of the right of private defence, in absence of which, death could have resulted on account of the assault made by complainant Sourabh Banjare and his companion - Bulthu Pathak (deceased). In the memorandum statement of the father of the petitioner also, no incriminating evidence is present against the petitioner. He would also submit that even if the case of the prosecution is taken as it is, then also, chances of conviction of the petitioner is bleak and further, no useful purpose would be served to continue the criminal proceedings, which would amount to abuse of the process of law. He refers to the judgment rendered by the Supreme Court in the matter of Madhavrao Jiwajirao Scindia and others Vs. Sambhajirao Chandrojirao Angre and others, (1988) 1 SCC 692, in which, vide para 7, the following proposition was held with regard to scope for exercising powers under Section 482 of Cr.PC. Para 7 reads thus :
"7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish 5 the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
6. Learned counsel for the petitioner further places reliance on the matter of State of Haryana and others Vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 and refers to para 102 specially points 1, 3, 5 & 7, which reads thus :
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter 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 6 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 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."
7. Learned counsel for the petitioner also places reliance on the matter of Satish Mehra Vs. State (NCT of Delhi) and another, (2012) 13 SCC 614. In para 14 of the said judgment, it has been categorically observed that a prosecution which is bound to become lame or a sham ought to be interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the 7 core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. Therefore, he prays to quash the impugned charge-sheet and the consequential criminal proceedings qua the petitioner.
8. Per contra, learned counsel for the State would submit that the allegations against the petitioner are very serious. It is well settled that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection. He submits that it is for the trial Court to decide the matter after taking evidence and thereafter, to give a finding about the genuineness of the allegations levelled against the petitioner. He further submits that the petitioner has an opportunity to raise an objection at the time of the charge under Section 239 of Cr.PC and even otherwise, if any order has been passed, the same may be challenged before the Revisional Court. He places reliance on the matters of State of Orissa and others Vs. Ujjal Kumar Burdhan, (2012) 4 SCC 547 and Jeffrey J. Diermeier and another Vs. State of West Bengal and another, (2010) 6 SCC 243 . He further submits that the principle of common intention also applies qua the petitioner. The burden of proof of right to private defence is on the accused. However, he fairly submits that on account of the attack by the deceased and the complainant on the petitioner and his father by a knife, such incident took place.
9. Heard learned counsel for the parties and also perused the documents annexed along with the petition.
10. In the instant case, it is indisputable fact that the petitioner was unarmed at the time of the incident and the incident occurred on account of a trivial dispute of not putting the car's head light on dipper while crossing each other. However, as per the established case of the prosecution, the deceased and the complainant chased 8 the petitioner's car and when the petitioner and his father reached the petrol pump, the complainant and the deceased also reached there and started a quarrel with them. In such quarrel, the deceased and the complainant firstly started attacking the petitioner and his father by using a knife and caused a stab injury on the chest of the petitioner. In the FIR, which was lodged by the complainant immediately after the incident, there is no material allegation about exhortation made by the petitioner. No independent witness has supported the improved statement of the complainant, which has been added subsequently. Even in the CCTV footage (Panchanama), no such ingredients are available. Further, in the matter of Gurudutta Mal (supra), it has been categorically held that common intention has relevance only to the offence and not to the right of private defence.
11. For the foregoing, this Court is of the considered opinion that the petitioner has successfully demonstrated that it is a fit case in which the continuation of the criminal proceeding would amount to abuse of the process of the law. Further, if the entire case of the prosecution case is accepted as it is, even then, no case is made out against the petitioner.
12. Resultantly, the petition is allowed. Criminal Proceedings emanating from Crime No.341/2019 registered at Police Station DD Nagar (Deendayal Nagar), Raipur for the offence under Sections 302, 34, 307 of IPC and under Sections 30 & 27 of the Arms Act pending before the Ninth Additional Sessions Judge, Raipur, are quashed.
Sd/-
( Deepak Kumar Tiwari) Judge Shyna