Madhya Pradesh High Court
Munna Singh Tomar vs State Of M.P on 25 April, 2018
1
HIGH COURT OF MADHYA PRADESH
MCRC 6354/2013
Munna Singh Tomar and Ors vs. State of MP and Anr.
Gwalior, dtd. 25/04/2018
Shri Vijay Dutt Sharma, counsel for the applicants.
Shri RVS Ghuraiya, Public Prosecutor for the respondent
No.1/ State.
Shri RK Sharma, Senior Counsel with Shri Sanjay Gupta and Shri MK Chaudhary, counsel for the respondent No.2.
This application under Section 482 of CrPC has been filed for quashing the FIR in Crime No.505/2012, registered at Police Station Ambah, District Morena for offence under Sections 302, 294, 323, 34 of IPC and under Sections 25, 27, 29, 30 of Arms Act as well as the charge sheet and all criminal proceedings which are pending against the applicants.
The necessary facts for the disposal of the present application in short are that the applicants and co-accused Umesh Singh Tomar are facing trial for offence under Sections 302, 294, 323, 34 of IPC and under Sections 25, 27, 29, 30 of Arms Act. During the course of arguments, it has been accepted by the counsel for the applicants that the charges have been framed and the evidence has begun. However, it is also fairly conceded by the counsel for the applicants that the order framing charge has never been challenged.
According to the prosecution case, complainant Raj Kumar Sharma lodged a report on 05/10/2012 at about 10:00 am to the effect that at about 07:30 in the morning, his son Pawan was coming to his house from the street and this witness was following his son. At that time, co-accused Umesh Singh came there along with a gun and instructed the deceased that although his property dispute with his uncle is 2 going on but since Umesh Singh Tomar had taken over the Balaji Cold Store as well as two bigha of agricultural land, therefore, the deceased shall not cultivate the said land. When the first informant replied that they would cultivate the said land, at that time, the present applicants also came there and co-accused Umesh Singh Tomar started abusing the first informant and the deceased and with an intention to kill the deceased, fired a gunshot from his mouser pistol causing injury on the ''left thigh'' (made as ''right thigh'' by overwriting), as a result of which the deceased sustained injuries. The first informant was pushed by the applicant No.1 as a result of which he too sustained injuries. As the other witnesses reached on the spot, therefore, all the accused persons ran way. The first informant brought his son to Ambah Hospital, from where he was referred to District Hospital,Morena. On reaching the District Hospital Morena, Pawan was declared dead. Accordingly, the FIR was lodged. In the meanwhile, prior to registration of Dehati Nalishi, the police had received an information that in village Bareh a gunshot has fired, therefore, Sub-Inspector RS Kashyap posted at Police Station Ambah, went to Hospital Ambah, where he was informed that both the injured persons have been referred to District Hospital, Morena. Thereafter, he went to District Hospital, Morena where the above-mentioned Dehati Nalishi was lodged by first informant Raj Kumar Sharma. When the deceased was brought to Hospital Ambah, a Dying Declaration was recorded. In the said Dying Declaration, the names of all the four accused persons have been mentioned as accused, and the statement of deceased Pawan was recorded in which he informed that he was going to his house and was checking the accounts, at that time, co- accused Umesh Singh Tomar came along with a gun and fired 3 a gunshot causing injury on his left leg and, therefore, he has been brought to the Hospital.
The police after concluding the investigation filed charge sheet against the applicants for offence under Sections 302, 294, 323, 34 of IPC and under Sections 25, 27, 29, 30 of Arms Act.
Challenging the FIR as well as the investigation and the charge sheet as well as the criminal proceedings, it is submitted by counsel for the applicants that the Dying Declaration of injured Pawan was recorded at 08:00 am in the morning and although the person who had recorded the statement of deceased Pawan had mentioned the names of all the four accused persons, but in the body of the statement, there is no allegation against the applicants and it is only mentioned that co-accused Umesh Singh Tomar fired at the injured causing injury on his left leg. It is submitted that Dehati Nalishi was lodged on 05/10/2012 at 08:00 am and word ''left leg'' has been overwritten and corrected to ''right thigh'' because in the postmortem report, it was found that the injury was sustained by deceased Pawan on ''right thigh''. In the MLC report, also injury was found on ''right thigh''. It is further submitted that in fact, the complainant party had fired at Umesh Singh Tomar who had also sustained an injury on his thigh and,therefore, by way of counterblast, a false FIR has been lodged.
Per contra, it is submitted by the counsel for the respondent No.2 as well as the counsel for the State that in fact, Umesh Singh Tomar had fired a gunshot causing injury to deceased Pawan, who ultimately succumbed to his injury and died within a few hours of the assault. In fact, with an intention to create a false evidence and defence, a self- inflicted injury was caused by Umesh Singh Tomar to himself 4 and a false FIR has been lodged against the complainant party for an offence under Section 307 of IPC. The police after concluding the investigation, had found that Umesh Singh Tomar had caused a self-inflicted injury and thereafter, after concluding the investigation, the police came to a conclusion that FIR lodged against the complainant party is false and accordingly, a closure report was filed. The closure report was not accepted by the concerning Magistrate and a direction for further investigation was given. Again, after conducting the further investigation, the police filed a closure report which again was not accepted by the Magistrate and when the closure report was filed for the third time, the Magistrate took cognizance of the matter and the said proceedings have been challenged by the complainant party by filing MCRC 9291/2014. It is submitted by counsel for the complainant that in fact, the FIR lodged against the complainant party is nothing but has been lodged by way of counterblast and, therefore, it cannot be said that the applicants have been falsely implicated. Furthermore, it is submitted by the counsel for the respondent No.2 that in the statements recorded under Section 161 of CrPC the witnesses have specifically stated that while running away from the spot,the accused persons had fired indiscriminately and were also alleging that now the complainant party should also be implicated in a false case of causing gunshot injury. The indiscriminate firing by the accused persons, is further corroborated by recovery of various cartridges from the spot. Even belt containing 25 cartridges of 315 bore gun were recorded from the spot. Certain empty cartridges were also recovered from the spot. Gunshot marks on different buildings were found. Blood was recovered from the place where the deceased was shot. Therefore, it is submitted that prima facie an offence under 5 Sections 302, 294, 323, 34 of IPC and under Sections 25, 27, 29, 30 of Arms Act is made out. The trial is already in progress. Some of the witnesses have been examined and all the arguments which have been raised by the counsel for the applicants are the matter of defence which are required to be proved before the trial Court.
Heard the learned counsel for the parties. For the sake of convenience, MCRC 9291/2014 filed by the complainant party is also heard along with this case.
The first submission raised by the counsel for the applicants that, the applicants have been falsely implicated by way of counter-blast as a gunshot injury was caused to co- accused Umesh Singh Tomar and in order to falsely implicate the applicants and to create defence, a false case has been lodged against the applicants is concerned, this question has been dealt with by this Court in detail in MCRC 9291/2014 and for the reasons assigned by this Court in MCRC 9291/2014, this Court is of the considered opinion that it cannot be said that the FIR has been lodged against the applicants by way of counter-blast and accordingly, the first submission made by the counsel for the applicants is rejected.
It is submitted by the counsel for the applicants that in the MLC as well as in the postmortem report, the injury was found on the ''right thigh'' of the deceased, whereas in the dying declaration which was recorded at 08:00 am as well as in the Dehati Nalishi and in the FIR initially the word ''Ckka;s'' [Left] was mentioned, however, word ''Ckka;s'' has been overwritten and it has been made as ''nka;s'' (Right). Thus, it is clear that the Dehati Nalishi as well as the FIR has been interpolated so as to make the injury in consonance with the MLC report and the postmortem report. However, there is no 6 overwriting in the Dying Declaration in which it is specifically mentioned that the injury was caused on ''Ckka;s'' (left). The counsel for the applicants, in support of his submissions, has relied upon the judgment passed by the Supreme Court in the case of Bir Singh and Ors. vs. The State of Uttar Pradesh, reported in 1977 CAR 398 (SC) and submitted that when there is material overwriting and interpolation in General Diary, then the Supreme Court has held that the benefit of doubt must go to the accused persons.
The submissions made by the counsel for the applicants cannot be accepted for the simple reason that the Supreme Court has considered the fact of interpolation while deciding the appeal against the conviction of the accused as there was already a judgment on merits by the trial Court. Secondly, in the said case, by making an interpolation, the name of the accused was changed. The name ''Narain'' was converted to ''Dularey''. Thus, the Supreme Court came to a conclusion that there is a possibility of attempt of converting the word '' 'Narain'' to ''Dularey'' and this overwriting cannot be said to be a mere clerical mistake. If the facts of this case are considered, then undisputedly, the deceased had suffered a gunshot injury on his right thigh. If the witnesses under a mistaken impression had explained the right thigh as ''Ckka;s iSj'' [left leg''] by saying ''Ckka;s'', then undisputedly, it would be a mere mistake and would not adversely affect the case of the complainant party.
Further, it is submitted by the counsel for the respondent No.2 that sometimes, a person gets confused that whether ''Ckka;s'' is ''left'' or ''right'', therefore, under this confusion, initially the word ''Ckka;s'' was mentioned, but immediately when the mistake was realized, and it was 7 corrected, then it cannot be said that the Dehati Nalishi as well as the FIR was overwritten in order to make it in consonance with the MLC report as well as the postmortem report. Undisputedly, the deceased Pawan has suffered a gunshot injury on his right thigh. It is beyond imagination that the injured himself instead of state that he had suffered an injury on his right thigh would show that he had suffered injury on his left leg or or left thigh. Thus, it is clear that it was mere a mistaken impression that ''Ckka;s'' is known as ''right''. Even otherwise, this mistake, at the most, can be said to be a factual mistake, which can be clarified in evidence and it cannot be said that there is a discrepancy between the ocular as well as the medical evidence, making the ocular evidence unreliable.
In the dying declaration the word ''Ckka;s iSj'' is mentioned. Further, there is no correction in the dying declaration, whereas in the Dehati Nalishi as well as in the First Information Report, initially the word ''Ckka;s iSj'' was written which was subsequently corrected as ''nka;s iSj'. Whether it is a result of mistaken impression or not, or whether it is an attempt to correct the Dehati Nalishi so as to bring it in consonance with the MLC as well as postmortem report or not, are the disputed facts which can be explained by the witnesses during evidence.
It is next contended by the learned counsel for the applicants that in the Dying Declaration although the names of all the persons have been described as the accused persons but in the body of the statement of the deceased there is no allegation that the present applicants had played any role and the only allegation is that accused Umesh Singh Tomar had fired a gunshot, causing injury to the deceased.
8Again, suffice it to say that the Dying Declaration is yet to be proved in the trial. At this stage, the said document cannot be factually interpreted by this Court while exercising power under Section 482 of CrPC and it is for the trial Court to come to a conclusion that whether the Dying Declaration on which it has been placed reliance by the prosecution is worth-reliable or not and that finding of fact can be given only after recording of the evidence.
The Supreme Court in the case of Satvinder Kaur Vs. State (Govt. Of NCT of Delhi) reported in (1999) 8 SCC 728, has held as under :
"14. Further, the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations.
15. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At 9 the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction.
16. Lastly, it is required to be reiterated that while exercising the jurisdiction under Section 482 of the Criminal Procedure Code of quashing an investigation, the court should bear in mind what has been observed in the State of Kerala v. O.C. Kuttan reported in (1999) 2 SCC 651 to the following effect: (SCC pp. 654-55, para 6) "Having said so, the Court gave a note of caution to the effect that the power of quashing the criminal proceedings should be exercised very sparingly 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 the extraordinary or inherent powers do not confer an 10 arbitrary jurisdiction on the court to act according to its whim or caprice. It is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and, therefore, while exercising the power and deciding whether the investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion one way or the other. In the case of State of U.P. v. O.P. Sharma reported in (1996) 7 SCC 705 a three-Judge Bench of this Court indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 or under Articles 226 and 227 of the Constitution of India, as the case may be, and allow the law to take its own course. The same view was reiterated by yet another three-Judge Bench of this Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada reported in (1997) 2 SCC 397 where this Court sounded a word of caution and stated that such power should be sparingly and cautiously exercised only when the court is of the opinion that otherwise there will be gross miscarriage of justice. The Court had also observed that social stability and order is required to be regulated by proceeding against the offender as it is an offence against society as a whole.""
In the case of Padal Venkata Rama Redeey Vs. Kovvuri Satyanarayan Reddy reported in (2011) 12 SCC 437, the Supreme Court has held as under :
"31. We have already pointed out various principles and circumstances under which the High Court can exercise inherent 11 jurisdiction under Section 482. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 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 detail in Bhajan Lal reported in (1992) SCC (cri) 426. The powers possessed by the High Court under Section 482 are very wide and at the same time 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 sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.
32. It would not be proper for the High Court to analyse the case of the complainant in the light of all the probabilities in order to determine whether conviction would be sustainable and on such premise arriving at a conclusion that the proceedings are to be quashed. In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case in which the complaint does not disclose any offence or is frivolous, vexatious or oppressive. There is no need to analyse each and every aspect meticulously before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. The statement of witnesses made on oath to be verified in full and materials put forth in the charge-sheet ought to be taken note of as a whole before arriving at any conclusion. It is the material concluded during the investigation and evidence led in court 12 which decides the fate of the accused persons."
In the case of Mosiruddin Munshi Vs. Md. Siraj reported in AIR 2014 SC 3352, the Supreme Court has held as under :
"6. Yet again in Mahesh Chaudhary v. State of Rajasthan (2009) 4 SCC 439 this Court stated the law thus:
"11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The Court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence."
The Supreme Court in the case of Sushil Suri Vs. CBI reported in (2011) 5 SCC 708 has held as under :
"18. In Dinesh Dutt Joshi v. State of Rajasthan (2001) 8 SCC 570, while explaining the object and purpose of Section 482 CrPC, this Court had observed thus: (SCC p. 573, para 6) "6. ... The principle embodied in the section is based upon the maxim:
quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been 13 embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."
19. Recently, this Court in A. Ravishankar Prasad (2009) 6 SCC 351, relied upon by the learned counsel for CBI, referring to several earlier decisions on the point, including R.P. Kapur AIR 1960 SC 866, State of Haryana v. Bhajan Lal 1992 (Supp) 1 SCC 335, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 395 B.S. Joshi, (2003) 4 SCC 675 Nikhil Merchant, (2008) 9 SCC 677 etc. has reiterated that the exercise of inherent powers would entirely depend on the facts and circumstances of each case.
20. It has been further observed that: (A. Ravishankar Prasad case (2009) 6 SCC 351 "23. ... The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they cannot be seen in their true perspective without sufficient material."
In the case of State of A.P. Vs. Vengaveeti Nagaiah reported in AIR 2009 SC 2646, it has been held as under :
''4.Exercise of power under Section 482 of the Code 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 the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under 14 the Code, (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. 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 recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal 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 course of administration of justice on the principle quando lex alicui aliquot concedere, conceditur 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 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 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 power to prevent such 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 court would be justified to quash any proceeding if it finds that initiation or 15 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 complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
5.In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) this Court summarized 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 its face value and 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.
6.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 of the Code, 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 no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and 16 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 of the Code 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 rarest of rare cases.
The illustrative categories indicated by this Court are as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the F.I.R. 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 F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police 17 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.As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. 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 18 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. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. 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 Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding."
The Supreme Court in the case of Rajiv Thapar Vs. 19 Madan Lal Kapoor reported in (2013) 3 SCC 330 has held as under :
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
20In the case of R. Kalyani Vs. Janak C.Mehta, reported in (2009) 1 SCC 516, it has been held by Supreme Court as under :
"15. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
Thus, it is clear that the disputed question of fact cannot be decided while exercising power under Section 482 of CrPC. The Court has to accept all the allegations as true and thereafter, has to come to a conclusion that whether the allegations so made against the accused persons, prima facie, make out any offence or not. The defence raised by the accused persons cannot be considered at the stage of exercising power under Section 482 of CrPC.
Considering the facts and circumstances of the case, this Court is of the considered opinion that the FIR lodged 21 against the applicants as well as the charge sheet filed against the applicants and the proceedings pending against the applicants cannot be quashed in this petition.
Before parting with this order, this Court finds it appropriate to issue a word of caution to the trial Court that this order has been passed considering the limited scope of interference while exercising power under Section 482 of CrPC. The Trial Court must decide the trial strictly on the basis of evidence, which would come on record without getting prejudiced by any of the observations made by this Court in this order.
Accordingly, this application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2018.05.02 14:42:26 +05'30'