Madhya Pradesh High Court
R.S.Chauhan vs Raviprakash on 24 November, 2015
1
M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. )
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUSHIL KUMAR GUPTA
M.Cr.C.No. 3780/2011
PETITIONERS : R.S. Chauhan and others
Vs
RESPONDENT: Raviprakash
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Petitioners by Shri Rajesh Shukla, Advocate.
None for the respondent.
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Date of hearing : 15/09/2015
Date of Judgment : __/__/2015.
ORDER
(__/__/2015) PER JUSTICE SUSHIL KUMAR GUPTA :-
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing the order dated 18.3.2011 and the proceedings in furtherance to the aforesaid order passed by Special Railway Magistrate in Criminal Case No.1183/2011 filed by the respondent whereby cognizance under sections 323, 347, 344, 327, 386, 329, 387 and 389 of IPC has been taken against the petitioners.
2. Brief facts of the case are that the respondent has filed a private 2 M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. ) complaint before Special Railway Magistrate, First Class, Gwalior on 18.2.2011 alleging therein that on 1.2.2011 when complainant had come from Bhind to Gwalior with his brother Prakash by Train, at that time petitioners had caught hold brother of the complainant and bring him to Police Station, G.R.P. After that petitioners detained Prakash and one R.S. Chauhan has taken the mobile phone and Rs.260/- from the complainant and thereafter R.S. Chauhan released the complainant's brother Prakash and said that give me Rs.1,50,000/- and 500 grams Gold, thereafter I will release your brother otherwise I will implicate him in any case. In the complaint the complainant further alleged that all the accused persons have used to commit Maarpeet, with him. The accused R.S. Chauhan, Jagdish Prasad and Ram Prakash have assaulted to the complainant by means of Lathi and Santosh and Manoj have committed maarpeet with the complainant by kicks and fists, therefore, the complainant has sustained grievous injuries. It has also been averred in the complaint by the complainant that the accused R.S. Chauhan told to the mother of the complainant on mobile phone that bring Rs.1,50,000/-
and gold. It has also been averred by complainant that other co-accused persons have also contacted to mother of the complainant, when brother of the complainant Prakash came at Thana to meet his brother then all the accused persons have committed maarpeet with him. It has also been alleged by the complainant that one Veerendra, Sovaran and brother were also detained in Police Station from last 15 days. When accused persons was committing maarpeet of complainant then all these persons were also present there. It has also been mentioned that on 15.2.2011 when the Advocate of complainant has submitted an application before the Court below then the Court below had appointed a commissioner 3 M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. ) and search warrant was issued and when the commissioner came to the Police Station then he found that complainant has illegally detained, thereafter the statements of detainee Veerendra and Sovaran were recorded and the Panchnama has been prepared and the respondent had prayed for registration of the case against the accused persons. After filing of the complaint, the Court below has enquired the matter and after completion of enquiry has passed the order dated 18.3.2011 whereby the cognizance under sections 323, 347, 344, 327, 386, 329, 387 and 389 of IPC has been taken against the petitioners.
3. Learned counsel for the petitioners submits that the respondent has filed private complaint with regard to wrongfully confined him on 1.2.2011 and it has been further alleged by the complainant that the accused persons have extorted him in fear of death and grievous hurt and causing injury to extort property. The entire incident which is alleged to have taken place on 1.2.2011, but the application under section 97 of Cr.P.C. filed by the brother of the complainant on 15.2.2011 before the Court below, it is submitted that during the period 1.2.2011 to 15.2.2011 the complainant has not filed any application and this shows the conduct of the complainant is highly suspicious. Learned counsel for the petitioners further submitted that as per the complaint and as well as statements general allegation has been made by the complainant with regard to the Maarpeet, however, no specific role has been assigned to any of the petitioners. Learned counsel for the petitioners further submitted that there is no ingredient of section 327 of IPC is available either in complaint or in the statement for constitute the alleged offence. It has been further submitted that as per complaint entire incident of extortion has taken place on 1.2.2011 and since 1.2.2011 to 15.2.2011 4 M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. ) no complaint has been made either by the complainant himself or his brother and also no explanation of such inordinate delay has been given by the respondent. It has been further submitted that petitioners are the public servants and they were discharging their official duty. Learned counsel further submits that looking to the act of the Commissioner appointed by the Court below it cannot be said that the fair and impartial enquiry has been made and the impugned order passed on such enquiry report is not sustainable in the eyes of law. On these grounds learned counsel for the petitioner prays for quashing the order dated 18.3.2011 and the proceedings in furtherance of that order passed by Court below.
4. Learned counsel for the petitioners placed reliance on the decisions of the Hon'ble Apex Court in the case of Mahindra & Mahindra Financial Services Limited and another Vs. Rajiv Dubey, (2009) 1 SCC (Cri) 603, State of Haryana and others Vs. Bhajanlal and others, 1992 SCC (Cri) 426 and the decision of this Court in the case of Ravikant Dubey and others Vs. State of M.P. and another, 2014 (2) M.P.H.T. 449.
5. Having heard the learned counsel for the petitioners, perused the impugned order as well as the documents available on record.
6. Respondent/complainant has filed a private complaint with regard to incident which is alleged to have occurred on dated 1.2.2011. According to private complaint petitioners wrongfully confined and beaten him and extorted him in fear of death and grievous hurt and causing injury to extort property. But surprisingly application under section 97 of Cr.P.C. was filed by the brother of complainant/respondent on 15.2.2011 5 M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. ) after the lapse of 15 days of alleged wrongful confinement of complainant/respondent. It is pertinent to mention here that no reason has been assigned by the complainant/respondent that why he has not approached to the Court or superior police officers. This conduct of the complainant is highly suspicious.
7. So far as the allegation of wrongful confinement it is seen from the record that complainant/respondent has been arrested on 15.2.2011 and are in custody in due procedure of law because criminal cases have been registered against the complainant/respondent and other persons. Hence, it is clear that this private complaint has been filed in counter blast of those cases. In such premises it cannot be said that the complainant/respondent was wrongfully confined.
8. So far as the allegation of maarpeet with complainant/respondent no specific allegation has been made against the petitioners that who has committed maarpeet with him.
9. Petitioners are the public servants and at the time of arrest of complainant/respondent as per Rojnamcha they were discharging their official duty. In such premises it is clear that with the malafide intention this private complaint has been filed.
10. So far as the Commissioner report it is cleared that at the time of inspection Commissioner found that complainant/respondent was in custody but as per the Rojnamcha it is clear that complainant/respondent was legally arrested and detained in custody so in any manner it cannot be said that complainant/respondent was wrongfully confined in custody and the report of Commissioner was based only on the oral statement and story narrated by the complainant/respondent and other detained accused persons and only on that basis learned Court below has 6 M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. ) wrongfully registered the private complaint against the petitioners without going through the documents which is illegal and liable to be set aside.
11. Private Complaint of complainant/respondent has been registered against the petitioner only on the oral evidence of Sovaran, Veerendra and Brijendra who are the accused persons and were detained in custody of other offences. And it is clear that with there malafide intention and to make pressure on petitioners they have stated against the petitioners.
12. Commissioner has no right to ask for Rojnamcha because Commissioner was appointed to only to see that whether complainant/respondent was detained in custody in police station or not but here is the question whether he was illegally detained in custody or not and as per Rojnamcha Sanha No.543 dated 14.2.2011 complainant/respondent, Sovaran, Brijendra and Veerendra were taken in custody on found suspected condition.
13. It is also pertinent to mention here that as per the Rojnamcha Sanha No.13 and 21 dated 1.2.2011 petitioner no.1- R.S. Chauhan and petitioner no.3-Manoj Singh both were present in the Court of First Additional Sessions Judge, Gwalior since 10:30 to 5:00 PM that is also proved by duty certificate of that Court. So far as the statement of other witnesses Veerendra, Sobaran and Brijendra they were also arrested and in custody and without going through the Rojnamcha entry the learned Court below has registered the private complaint against the petitioners which is illegal and liable to be set aside.
14. In view of aforesaid detailed discussion and in the facts and circumstances of the case for the foregoing reasons I am of the considered opinion that there is no prima faice evidence available 7 M.Cr.C.No.3780/2011 (R.S. Chauhan and others Vs. State of M.P. ) against the petitioners. Consequently, the petition of the petitioners is hereby allowed and the order dated 18.3.2011 passed by the Special Railway Magistrate and further proceedings in Criminal Case No.1183/2011 whereby cognizance under sections 323, 347, 344, 327, 386, 329, 387 and 389 of IPC has been taken against the petitioners is hereby quashed.
Copy of the order be sent to the Court concerned for necessary compliance.
(Sushil Kumar Gupta) Judge __/__/2015 Pawar/-