Himachal Pradesh High Court
Date Of Decision: 04.09.2024 vs State Of Himachal Pradesh And Others on 4 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8597
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.201 of 2022
Date of Decision: 04.09.2024
_____________________________________________________________________
.
Sudarshana Devi
.........Petitioner
Versus
State of Himachal Pradesh and Others
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Ajay Sharma, Senior Advocate, with Ms.
Kavita Kajal, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. B.C. Verma and Mr.
Vishal Panwar, Additional Advocates General,
r with Mr. Ravi Chauhan, Deputy Advocate
General, for respondents No.1 & 2/State.
Mr. Parkash Sharma, Advocate, for the
respondent No.3.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant petition filed under Section 482 Cr.P.C., prayer has been made on behalf of petitioner for quashing of FIR No.167 of 2020, dated 03.06.2020, under Sections 336, 337 & 427 IPC, registered at Police Station Bhunter, District Kullu, Himachal Pradesh, as well as consequential proceedings pending in the Court of learned Judicial Magistrate First Class, Court No.V, Kullu, District Kullu, Himachal Pradesh.
2. Precisely, the facts of the case, as emerge from the record are that FIR sought to be quashed in the instant proceedings came to ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 2 be lodged at the behest of respondent No.3-Mr. Surender Kumar (hereafter, 'complainant'), who in his statement recorded under Section 154 Cr.P.C. alleged that on 03.06.2020 at 04:00 p.m., while he .
had come from market to his house, one branch of poplar tree, standing in front of his house, fell on the lintel of his house, as a result thereof, his son, who at that relevant point of time was standing in the courtyard, suffered multiple injuries. He also alleged that on account of felling of tree, damage was also caused to water tank and staircase. He alleged that since poplar tree standing in front of the house of the accused was likely to fall, he repeatedly requested accused named in the FIR to get it removed, but despite there being permission granted by Forest Department, he neither removed the tree, nor permitted him to remove the same, as a result thereof, it fell on the lintel of his house. In the aforesaid background, FIR sought to be quashed, came to be instituted against the petitioner under Sections 336, 337 & 427 IPC.
3. After completion of investigation, Police has already presented Challan in the competent Court of law, but before same could be taken to its logical end, petitioner has approached this Court in the instant proceedings, praying therein to quash the FIR, as well as consequential proceedings pending in the competent Court of law, on the ground that no case much less under Sections 336, 337 & 427 IPC is made out against the petitioner.
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4. Pursuant to the notices issued in the instant proceedings, private-respondent No.3 has filed reply, whereas, despite repeated opportunities, no reply has been filed on behalf of respondent/State, .
but status report, detailing therein facts leading to lodging of FIR has been filed.
5. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Ajay Sharma, learned Senior Counsel, assisted by Ms. Kavita Kajal, Advocate, representing the petitioner is that no case much less under Sections 336, 337 & 427 IPC is made out against the petitioner and as such, prosecution launched against the petitioner is likely to fail in all probabilities. While making this Court peruse contents of FIR, learned Senior Counsel submitted that on the alleged date of incident, branch of poplar tree fell on the lintel of the house of the complainant on account of heavy storm and there was no hand, if any, of petitioner and his family members in breaking of the branch of the tree in question. Mr. Sharma, learned Senior Counsel, stated that though material available on record suggest that permission was granted to the complainant by the Forest Department for removal of the tree, which could be danger to his life and property, but yet, he took no steps to get the tree removed. Mr. Sharma, learned Senior Counsel, further stated that though there is no material adduced on record, suggestive of the fact that poplar tree standing in the mid of house of ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 4 petitioner and complainant was likely to be uprooted, but even if it is presumed that same was in danger condition, no criminal case, much less under aforesaid provisions of law, could have been registered .
against the petitioner for the reason that on the date of alleged incident, one branch of poplar tree fell on the lintel of the complainant on account of heavy storm, if it is so, alleged incident can be said to have been happened on account of natural calamity and not on account of rash and negligent act, if any, of the petitioner. He submitted that since there is nothing on record to prove rash and negligent act, if any, of the petitioner, coupled with the fact that there was no mischief, if any, on the part of the petitioner, prosecution launched against the petitioner under relevant provisions of law would not succeed, but if such prosecution is permitted to continue, that would unnecessarily put the petitioner to inconvenience, who would be unnecessarily made to suffer the ordeal of protracted trial, which otherwise is bound to culminate in his acquittal.
6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General representing the respondents/State and Mr. Parkash Sharma, learned counsel representing the respondent No.3/complainant, while refuting the prayer made on behalf of the petitioner, vehemently argued that though on the date of alleged incident, tree in question fell on account of heavy storm, but there is ample evidence adduced on record, suggestive of the fact that ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 5 repeatedly request was made by the complainant to the petitioner to get the tree removed, so that no damage is caused to the life and property of the petitioner and complainant. While making this Court .
peruse material available on record by learned Additional Advocate General and learned counsel representing the complainant, stated that since tree in question was likely to fall any time, matter was brought to the notice of the Forest Department, which had further granted permission to the complainant to get the same removed, however, the same was not removed and ultimately, tree in question was unable to bear the force and intensity of storm and it fell down on the lintel of the house of the complainant. Above named counsel representing the respondent No.3/complainant further stated that since petitioner despite fully knowing that tree in question can fall at any time, failed to take adequate steps to get it removed, no illegality can be said to have been committed by the prosecution by initiating prosecution under Sections 336, 337 & 427 IPC against the petitioner.
7. Mr. Kahol, learned Additional Advocate General, contended that though land in question, upon which tree was standing was found to be joint inter se parties, but admittedly same was found to be in possession of the petitioner, as such, she was otherwise under obligation to get it removed on account of its having become danger to the life and property of persons, living in and around that tree. Lastly, Mr. Kahol, learned Additional Advocate ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 6 General, stated that bare perusal of FIR sought to be quashed discloses prima facie case against the petitioner under Sections 336, 337 & 427 IPC and as such, prayer made on behalf of the petitioner .
for quashing of FIR deserves to be rejected. He further stated that material adduced on record to connect the petitioner is sufficient to prove her guilt, as such, it is not a fit case where the Court while exercising power under Section 482 Cr.P.C. proceed to quash the FIR, as well as consequential proceedings, rather, appropriate opportunity is required to be provided to the prosecution to prove its case against the petitioner by leading cogent and convincing evidence.
8. I have heard the parties and gone through the records.
Since very question of maintainability of petition filed under Section 482 Cr.P.C., seeking therein direction to quash the FIR has been raised on behalf of the respondent/State, this Court in order to ascertain the correctness and genuineness of rival submission made by learned counsel representing the parties, deems it necessary to discuss/elaborate the scope and competence of this Court to quash the criminal proceedings while exercising power under Section 482 Cr.P.C.
9. A Three-Judge Bench of the Hon'ble Apex Court in case titled State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, has held that High Court while exercising power under Section 482 Cr.PC is entitled to quash the proceedings, if it comes to ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 7 the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.
.
10. Subsequently, in case titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, the Hon'ble Apex Court while elaborately discussing the scope and competence of High Court to quash criminal proceedings under Section 482 Cr.PC laid down certain principles governing the jurisdiction of High Court to exercise its power. After passing of aforesaid judgment, issue with regard to exercise of power under Section 482 Cr.PC, again came to be considered by the Hon'ble Apex Court in case bearing Criminal Appeal No.577 of 2017 (arising out of SLP (CrL.) No. 287 of 2017) titled Vineet Kumar and Ors. v. State of U.P. and Anr., wherein it has been held that saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. court proceedings ought not to be permitted to degenerate into a weapon of harassment or persecution.
11. The Hon'ble Apex Court in Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, relying upon its earlier judgment titled as Rajiv Thapar and Ors v. Madan Lal Kapoor, (2013) 3 SCC 330, reiterated that High Court has inherent powers under Section 482 Cr.PC., to quash the proceedings against an accused, at the stage ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 8 of issuing process, or at the stage of committal, or even at the stage of framing of charge, but such power must always be used with caution, care and circumspection. In the aforesaid judgment, the Hon'ble Apex .
Court concluded that while exercising its inherent jurisdiction under Section 482 of the Cr.PC, Court exercising such power must be fully satisfied that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts and the material adduced on record itself overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. Besides above, the Hon'ble Apex Court further held that material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. In the aforesaid judgment titled as Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293, the Hon'ble Apex Court has held as under:-
"22. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 9 Madan Lal Kapoor wherein this Court inter alia held as under: (2013) 3 SCC 330, paras 29-30)
29. The issue being examined in the instant .
case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the r prosecution/complainant to lead evidence.
Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 10 persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it .
to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one, whether the material relied upon by the accused is sound, r 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 ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 11 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, judicial conscience .
of the High Court should persuade it to quash such criminal - proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. 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."
12. It is quite apparent from the bare perusal of aforesaid judgments passed by the Hon'ble Apex Court from time to time that 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/her due to private and personal grudge, High Court while exercising power under Section 482 Cr.PC can proceed to quash the proceedings.
13. Mr. Rajan Kahol, learned Additional Advocate General, contended that since investigating agency after having completed investigation has already filed Challan under Section 173 Cr.PC., in the competent Court of law, prayer made on behalf of the petitioner for quashing FIR cannot be accepted at this stage. However, this Court is ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 12 not inclined to accept the aforesaid submission made by the learned Additional Advocate General for the reason that High Court while exercising jurisdiction under Section 482 Cr.P.C. can even proceed to .
quash charge, if it is satisfied that evidentiary material adduced on record would not reasonably connect the accused with the crime and if trial in such situations is allowed to continue, person arraigned as an accused would be unnecessarily put to ordeals of protracted trial on the basis of flippant and vague evidence.
14. The Hon'ble Apex Court in case tilted Anand Kumar Mohatta and Anr. v. State (Government of NCT of Delhi) Departmetn of Home and Anr, AIR 2019 SC 210, has held that abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation and as such, the abuse of law or miscarriage of justice can be rectified by the court while exercising power under Section 482 Cr.PC. The relevant paras of the judgment are as under:
"16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: -
"482. Saving of inherent power of the High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 13 Court or otherwise to secure the ends of justice."
17. There is nothing in the words of this Section which .
restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court ( G. Sagar Suri and Anr. V. State of U.P. and Others, (2000) 2 SCC 636 (para 7), Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (para
20). Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."
15. The Hon'ble Apex Court in case titled Pramod Suryabhan Pawar v. The State of Maharashtra and Anr, (2019) 9 SCC 608, has elaborated the scope of exercise of power under Section 482 Cr.PC, the relevant para whereof reads as under:-
"7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 14 FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this .
Court. In Inder Mohan Goswami v State of Uttaranchal5, this Court observed.
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers 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 CrPC can be exercised:
to give effect to an order under the Code; r to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when 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."
8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v Bhajan Lal conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 15 examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where, (2007) 12 SCC 1 1992 Supp (1) SCC 335 .
"102. (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 r within the purview of Section 155(2).
..........
(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."
In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, 2018 SCCOnLine SC3100 ("Dhruvaram Sonar") :
"13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 16 not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to .
quash the same in exercise of its inherent powers."
16. Reliance is also placed upon judgment of Hon'ble Apex Court in 2012 (13) SCC 614 titled as Satish Mehra Vs. State (NCT of Delhi), whereby it was held as under:
"13. Though a criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the Code has to be brought to its logical conclusion in accordance with the procedure prescribed, power has been conferred under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of this Court in R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] wherein the parameters of exercise of the inherent power vested by Section 561-A of the repealed Code of Criminal Procedure, 1898 (corresponding to Section 482 CrPC, 1973) had been laid down in the following terms: (AIR p. 869, para 6)
(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;
(iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and
(iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge."::: Downloaded on - 20/09/2024 20:35:28 :::CIS
2024:HHC:8597 17
17. Now in light of aforesaid law laid down by Hon'ble Apex Court, I shall be making an endeavour to examine and consider the prayer made in the instant petition, vis-a-vis factual matrix of the .
case.
18. Precisely, the allegation, as contained in the FIR sought to be quashed against the petitioner is that he despite fully knowing that tree standing in front of house of the complainant is likely to fall any time, failed to take adequate steps to get it removed, as a result thereof, complainant besides suffering damage to his property, also suffered on account of injury caused to his son in the alleged incident.
It also emerge from the reading of the FIR that tree, which allegedly fell on the house of the complainant was standing in the mid of the houses of the petitioner and complainant, who are co-sharers.
Though, land upon which tree was found to be standing is joint inter se parties, but as per investigation, tree, which fell on the house of complainant was standing on the land in possession of the petitioner. It also emerge from the record that since despite repeated request, no steps were ever taken by the petitioner to get the tree removed, brother of complainant approached the Forest Department seeking permission to remove the tree, though, permission was granted, but yet complainant failed to get the tree removed, however, subsequently, he alleged that despite there being permission granted in his favour, he was not permitted by the petitioner to get the tree ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 18 removed. It is also not in dispute that on the alleged date of incident, branch of tree fell on the lintel of the house of complainant on account of heavy storm. It is not the case of the prosecution that on account of .
storm, entire tree was uprooted, rather, it has been alleged that one big branch of the tree fell on the lintel, as a result thereof, son of complainant, who at relevant point of time was standing in the courtyard, suffered injuries.
19. No doubt, record reveals that tree standing in the mid of the houses of the complainant and petitioner was in danger condition and it could fall at any time, but admittedly, on the date of alleged incident, tree was not uprooted, rather on account of heavy storm, one branch of tree fell on the lintel of the complainant. Since on the date of alleged incident, one branch of tree in question fell on account of heavy storm, act of felling of tree, otherwise cannot be imputed to the petitioner, rather, same can be said to have been happened on account of natural calamity. Had petitioner done any overt act to remove the tree by not taking appropriate steps to protect the property of complainant and in that process, some part of tree had fallen, prosecution could have been launched against the petitioner on account of rash and negligent act, if any, of the petitioner. In the case at hand, no steps, if any, were ever came to be taken at the behest of complainant to remove the tree, but such inaction, if any, on the part of the petitioner cannot be construed to be an act of rash and ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 19 negligent, especially when on the date of alleged incident, branch of tree in question fell on account of heavy storm.
20. Though, material adduced on record reveals that .
petitioner despite repeated request failed to remove the tree and as such, department concerned was compelled to grant permission to get the tree removed, but since on the date of alleged incident, branch of tree fell on the lintel of the complainant on account of heavy storm, inaction, if any, on the part of the petitioner to get the tree removed cannot be construed to be rash and negligent, inasmuch as to bring the same in the ambit of Sections 336, 337 & 427 IPC. At this juncture, it would be apt to take note of aforesaid provisions of law, which reads as under:
"336. Act endangering life or personal safety of others.-- Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
** ** **
337. Causing hurt by act endangering life or personal safety of others.--
Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
** ** ** ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 20
427. Mischief causing damage to the amount of fifty rupees. --
Whoever commits mischief and thereby causes loss or damage to .
the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
21. Section 336 IPC provides that whoever does any act of rash and negligent, so as to endanger human life or the personal safety of others, shall be punished with imprisonment, which may extend to three months. In the instant case, there is nothing on record to suggest that petitioner did any of act of rash and negligent to endanger human life. Had tree standing between the houses of the petitioner and complainant fallen on its own, complainant would have been right in contending that accident occurred on account inaction on the part of the petitioner, who despite fully knowing that tree can fall any time, failed to get it removed, but once it is not in dispute that on the date of alleged incident, one branch of tree fell on account of heavy storm, there appears to be no justification to register the case against the petitioner under aforesaid provision of law. Similarly, Section 337 of IPC is not applicable in the present case because in the instant case, though on account of alleged incident, son of complainant suffered injury, but such injury never came to be suffered by the injured, on account of rash and negligent act, if any, on the part of the petitioner, rather, alleged incident happened on account of ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 21 heavy storm. Section 427 IPC speaks about mischief. As per aforesaid provision of law, whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished .
with imprisonment, which may extend to two years or with fine.
"Mischief" has been defined in Section 425 IPC, which provides that whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". In the instant case there is nothing on record to suggest that mischief as defined in Section 425 IPC ever came to be committed by the petitioner. Neither he caused any wrongful loss or damage to the public or to any person, nor he caused destruction to property, rather, property i.e. lintel, came to be damaged on account of heavy storm.
22. As has been observed hereinabove, had petitioner done an overt act by tinkering with the tree, which was likely to fall, he could be deemed to have committed mischief, that too when such act was done by him without informing other party, who in that event, otherwise could have taken appropriate steps to protect the property and life. Moreover, this Court finds that after alleged incident, local administration having taken note of natural calamity, as a result of which damage was caused to the house of the complainant, has ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 22 already adequately compensated the parties, which suffered damages.
Factum of act of awarding compensation/payment by administration itself suggest that damage was caused to the house of the complainant .
on account of natural calamity, if it is so, petitioner otherwise could not have been held liable to be prosecuted under Sections 336, 337 and 427 IPC, which is otherwise not applicable in the facts and circumstances of the present case. There are sufficient grounds for this Court to exercise its inherent jurisdiction under Section 482 Cr.P.C., for quashing the FIR and consequent criminal proceedings against the petitioner, to prevent abuse of process of law and to prevent unnecessary harassment to the petitioner against whom there is no evidence to connect her with the commission of offences, as incorporated in the FIR. Otherwise also, continuance of the criminal proceedings against the petitioner in the present case would be a sheer wastage of time of the learned trial Court and the same would amount to subjecting the petitioner to unnecessary and protracted ordeal of trial, which is bound to culminate in acquittal.
23. Consequently, in view of detailed discussion as made hereinabove as well as law taken into consideration, present petitions are allowed and FIR No.167 of 2020, dated 03.06.2020, under Sections 336, 337 & 427 IPC, registered at Police Station Bhunter, District Kullu, Himachal Pradesh, as well as consequent proceedings, ::: Downloaded on - 20/09/2024 20:35:28 :::CIS 2024:HHC:8597 23 pending adjudication before the Court below, are ordered to be quashed and set aside.
The present petition is allowed in the aforesaid terms.
.
Pending application(s), if any, also stands disposed of.
September 04, 2024 (Sandeep Sharma),
(Rajeev Raturi) Judge
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