Madhya Pradesh High Court
Dhanendra Singh Bhadoriya vs Mohar Singh Kaurav on 18 November, 2020
Author: Vishal Mishra
Bench: Vishal Mishra
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.43332/2020
(Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav)
Gwalior, Dated:-18/11/2020
Heard through Video Conferencing.
Shri Vivek Khedkar, learned counsel for the petitioner.
Shri F.A. Shah, learned counsel for the respondent.
The present petition is being filed under section 482 of Cr.P.C. arising out of an order dated 14.9.2016 passed by the learned Judicial Magistrate First Class, Datia in Complaint Case No.GH0089/2013, whereby the cognizance for offences under sections 147, 323, 342, 365, 380, 455, 451 read with section 149 of IPC has been taken.
It is alleged that the respondent-complainant has filed a complaint against the petitioner and other co-accused persons before the Trial Court with respect to an incident said to have taken place in the year 2012. After lodging the complaint, the matter was transferred to the C.J.M. to the concerned Magistrate and statements under section 200 and 202 of Cr.P.C. were recorded and the matter was kept pending. From time to time the statements were recorded up to year 2013 and thereafter the complainant has filed an application for transfer of the matter from the Court of concerning Magistrate. And finally the cognizance in the matter was taken by the Special Judge on 20.4.2013. It was pointed out that the initial complaint was filed on 9.8.2012, but in the aforesaid complaint there was no specific allegation with respect to the present petitioner. Thereafter another 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) complaint was filed before the I.G. Police Bhopal, wherein the name of the petitioner was roped up and it was alleged that he has entered into the house of respondent and is taken an amount of Rs.30,000/- from the Alimrah. It was further pointed out that the private complaint which was filed with a delay of nearly 8 months from the date of initial complaint and was filed on 9.8.2012 and it is a modified version as far as the initial complaint was made by the complainant. The private complaint was registered as D.F. No.2013 filed on 2.4.2013. An order dated 8.8.2013 was passed by the Additional Sessions Judge, wherein nothing was found in record or in evidence for which the Court could have taken cognizance under section 395 and 397 of IPC read with section 11 and 13 of M.P.D.V.P.K. Act and therefore, the matter was remanded back to Magistrate for inquiry because remaining complaint was triable by Magistrate. Thereafter the remand order clearly reveals that the matter was directed to be re- examined by the Magistrate on the basis of the evidence available on record. But, after the remand order the learned Judicial Magistrate First Class has again initiated fresh inquiry on the basis of the complaint and has again directed for recording of statements and has got recorded the statements again which is clearly barred by law. The Magistrate has exceeded its jurisdiction as well as has exceeded the directions given by the Additional Sessions Judge regarding re- 3
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) examination of the matter. Thereafter the present case have cropped up and on the basis of the new evidence recorded by the learned Judicial Magistrate First Class without marshalling the earlier evidence available on record and without following the directions issued by the learned Additional Sessions Judge has directed to register the case and has also directed to issue summons to the concerning persons vide its order dated 14.9.2016. When the cognizance was taken into the matter the petitioner's services were terminated after conducting due inquiry into the matter on 26.3.2016. It is pointed out that the petitioner after facing a departmental inquiry and filing an appeal against his termination order was finally reinstated in service vide order dated 22.8.2019.
Counsel for the petitioner has pointed out that from 26.3.2016 till his reinstatement in service i.e. on 22.8.2019 the petitioner was out of his job, therefore, the notices/summons of bailable warrants/non- bailable warrants, which may have been issued by the learned Trial Court were never served upon him. It is for the first time the aforesaid fact came to his knowledge when the order was passed by the Court on 4.6.2020 that on the instance of the complaint made by the respondent, non-bailable warrant has already been issued against the petitioner in the case which was registered on 14.9.2016. The petitioner further came to know about the fact that the writ petition 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) bearing W.P.No.13871/2020 has been filed challenging the non- compliance of the orders passed by the learned Trial Court regarding execution of non-bailable warrants on various grounds. The orders have been passed by the Court with respect to filing of the status report and the action taken by the police authorities for making compliance of this Court's order of the non-bailable warrants upon the accused, who are admittedly the police officials. The petitioner has pointed out that he is a government servant and was unaware of the facts of issuance of the non-bailable warrants as he was out of job from 2016 to 2019 and as soon as this fact came to his knowledge he has shown his willingness to surrender before the Trial Court. Although, it is pointed out that the challenge is being made to the order passed by the learned Trial Court, whereby the cognizance is being taken on the private complaint on several grounds including the ground that the private complaint is a counter blast to an earlier FIR registered against the respondent-complainant by the police authorities and for which he has relied upon the judgments passed by the Hon'ble Supreme Court in the case of M.N. Ojha Vs. Alok Kumar Shrivastava and another, (2009) 9 SCC 682 and in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others, (1998) 5 SCC 749 and further in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal, 2007 (12) 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) SCC 1 and has argued that consistently the Hon'ble Supreme Court has held that the FIR of the private complaint which has been filed as a counter blast on the basis of which cognizance has been taken the proceedings were held to be not maintainable and were quashed. He has further relied upon the judgment passed by the Hon'ble Supreme Court in the case of Baijnath Jha Vs. Sita Ram and another, (2008) 8 SCC 77 and in the case of State of Haryana Vs. Bhajanlal, 1998 Suppl. 1 SCC 335, wherein the Hon'ble Supreme Court has laid down the law with regard to powers of 482 Cr.P.C. exercised by the Courts and it was held that the powers can be exercised to give effect to an order under the Court and also to prevent the abuse of process of law. It is pointed out that the complainant of the present case is an Advocate having a practice of 17 years against whom an FIR was got registered for misbehaving with the police authorities and for interrupting in official working with the Collector and Superintendent of Police, therefore, the FIR was got registered against him for the offences under section 323, 294 and 353 of IPC at Crime No.351/2012. Being annoyed by such action of the State authorities the complaint has been made against the petitioner along with others. As already pointed out that in the initial complaint there was no name of the present petitioner as well as no role was said to have been assigned to him and subsequently he has been roped up in the case on 6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) the second complaint made to the Inspector General of Police and thereafter continuously he has been harassed by getting registered a false private complaint. He has further relied upon the judgments passed by the Hon'ble Supreme Court in the case of Satguru Singh Vs. State of Punjab, AIR 1995 SC 2449 and in the case of Mangal Singh and others Vs. State of M.P., 2009 ILR MP 2671, wherein it has been held that subsequent information which has been given to the police by way of private complaint is delayed on the basis of which the cognizance has been taken by the learned Trial Court was found liable to be quashed by the Hon'ble Supreme Court. He has further relied upon the judgment passed in the case of Vijay Shankar and another Vs. Union of India, (2004) 4 SCC 666, wherein the Metropolitan Magistrate has taken the cognizance of one person and remaining has been left to decide separately. The Hon'ble Supreme Court has directed that the entire facts are held that the Metropolitan Magistrate is exfacie an act of fraud by fictitious person and an abuse of process of Court and every and any action taken pursuant to the said complaint gets vitiated and ultimately the complaint was quashed. In the present case also the initial complaint was made wherein the then Collector and the S.P. were named in the complaint, but subsequently the name of the present petitioner has been taken up when a second complaint was made to the Inspector 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) General wherein the specific allegation is made that he has taken out an amount of Rs.30,000/- from the Almirah.
Counsel for the petitioner submits that he has aware about the limitation of the Court as several disputed questions of facts are involved in the matter, but as he has already pointed out the fact that initially when the matter after recording of statements was examined by the Additional Sessions Judge he has found that no case for commission of offence under section 395 and 397 of IPC read with section 11/13 of M.P.D.V.P.K. Act has made against the present petitioner as well as others. Therefore, he has remanded the matter back to the learned Judicial Magistrate First Class for re-examination on the basis of the material and evidence available on record, but thereafter the Magistrate has exceeded its jurisdiction and has recorded the fresh statements on the basis of which the cognizance has again been taken into the matter. He submits that he is ready to face the Trial, but for which some breathing time may be granted. He submits that as the non-bailable warrants are already issued against him, therefore, he is ready to surrender before the Trial Court, but as the matter is an outcome of a private complaint registered by leading Advocate of District Bar Datia, in such circumstances, he submits that certain protection may be granted to him and prays that he will surrender before the Trial Court within a period of seven days, but for 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) at least 15 days the directions be issued that no coercive action be taken against him to enable him to seek bail from the Court. He submits that he will be ready to abide by all the terms and conditions that may be imposed by the Court while considering his petition for grant of relief.
Counsel for the petitioner at the outset submits that he does not want the quashment of the proceedings as the petitioner is willing to surrender and face trial.
Per contra counsel for the respondent has vehemently opposed the arguments advanced by the petitioner and submits that despite of non-bailable warrants issued against the petitioner which were in his knowledge, the bailable warrants were not served upon him owing to the fact that the petitioner belongs to the Police Department. It is submitted that the only anxiety which is put-forth by the respondent in the present case as well as by filing a separate writ petition seeking the relief of execution of the non-bailable warrants and also for fair trial in the matter (Writ Petition is pending wherein there are already direction issued by this Court). In such circumstances, filing a separate petition under section 482 of Cr.P.C. seeking such a relief is not warranted and prays for dismissal of the petition.
Heard the learned counsel for the parties and perused the documents.
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THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) From the documents it is clear that the cognizance is being taken by the learned Trial Court far back in the year 2016 on a private complaint filed by the respondent. It is not disputed that from 2016 to 2019 the present petitioner was terminated and was facing a departmental inquiry and only after getting successful in the departmental appeal he has been reinstated in service in the year 2019. It is also seen from the documents that in the initial complaint which was filed with respect to the incident said to have taken place in the year 2012 the name of the present petitioner was not involved. In a subsequent complaint made to the Inspector General of Police the allegations were levelled against the present petitioner and he was roped up in the complaint. This Court is aware of the limitations with respect to issuance of granting interim relief in pending investigation cases, but the fact remains that the present case is an outcome of a private complaint that too registered by a leading Advocate in District Datia. It is further seen from the record that initially with respect to the misbehaviour by the complainant in a Jan Sunwai with the then Collector, District Datia an FIR was got registered against the respondent for offences under section 323, 294 and 353 of IPC for interrupting in the official working. Thereafter the present complaint is being filed as a counterblast. It appears that thereafter the present complaint is being filed as a counterblast. It is not disputed that the 10 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) petitioner is a government servant serving in the police department and is willing to surrender before the Trial Court and is also ready to face the trial.
In the case of Anjani Kumar Vs. State of Bihar and others, AIR 2008 SC 1992, the Hon'ble Supreme Court has held as under:
"6. In support of the appeal, learned counsel for the appellant submitted that the factual scenario as noted above goes to show the allegations were made as a counter blast by respondent No.2 for the action taken against him. With a view to harass and humiliate the appellant a complaint was filed. The appellant had acted in course of his official duty and the High Court should not have dismissed the petition on the ground that no sanction was necessary, without considering the mala fides.
10. The pivotal issue i.e. applicability of Section 197 of the Code needs careful consideration. In Bakhshish Singh Brar v. Smt. Gurmej Kaur and Anr. (AIR 1988 SC 257), this Court while emphasizing on the balance between protection to the officers and the protection to the citizens observed as follows:-
"It is necessary to protect the public servants in the discharge of their duties. In the facts and circumstances of each case protection of public officers and public servants 11 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties or purported discharge of his duties, and whether the public servant has exceeded his limit. It is true that Section 196 states that no cognizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."
In the case of Inder Mohan Goswami and others (supra) the Hon'ble Supreme Court has held as under:
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.12
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav)
24. Inherent powers under section 482 Cr.P.C.
though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
Taking into consideration the overall facts and circumstances of the case and also the fact that the cognizance has already been taken into by the learned Trial Court far back in the year 2016, for which the non-bailable warrants have already been issued against the petitioner, this Court does not deem it appropriate to entertain the petition under section 482 Cr.P.C. for quashment of the impugned order.
However, looking to the facts and circumstances of the case and the controversy involved in the present case, coupled with the fact that the petitioner is a government servant a police official who is ready to surrender within a period of seven days, this Court deems it appropriate to grant him a breathing space and if the petitioner surrenders within a period of seven days from today before the Trial Court, then in such circumstances no coercive action is directed to be 13 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.43332/2020 (Dhanendra Singh Bhadoriya Vs. Mohar Singh Kaurav) taken against him for a period of fifteen days from his date of surrender to enable him to apply for regular bail before the learned Trial Court.
With the aforesaid observations, the petition is disposed of. E-copy/Certified copy as per rules/directions.
(Vishal Mishra) Judge Pawar* ASHISH PAWAR 2020.11.23 14:14:47 +05'30'