Patna High Court - Orders
Manoj Sharma @ Manoj Kumar vs The State Of Bihar & Ors on 10 February, 2012
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.710 of 2011
======================================================
Manoj Sharma @ Manoj Kumar S/O Ramadhar Singh @ Ramadhar
Sharma, R/O-Village, Tilaknagar, Rukunpura.
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The S.H.O, P.S. Rupaspur, Patna.
3. The Superintendent of Police, Patna.
.... .... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. S.K. Sinha,
Mr. Anand Kr. Sinha,
Mr. Om Prakash, Advocates
For the Respondent/s : SC-24
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR
TRIVEDI
CAV ORDER
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)
9 10-02-2012Petitioner, Manoj Sharma @ Manoj Kumar has filed instant writ for quashing of FIR of Rupaspur P.S. Case No. 85/2010 as well as charge-sheet.
2. The brief fact of the case as is evident from Annexure-A which happens to be written report submitted by Ranjay Kumar disclosing therein that his son Saurabh Kumar aged about 10 years is a student of St.Karen's School, Rukunpura of Class-III. On 29.11.2010 at about 7:00 A.M. while his son was proceeding towards school, his landlord, Ramadhar Singh, his son, Manoj Singh and grandsons, Sajay Kumar, Manish Kumar came, abused and then caught hold him. Manoj Kumar caught hold his hand and on an order of 2 Ramadhar Singh, pierced iron wire in his left eye. On an alarm raised by his son, he along with his mother, father and others came out and seen the occurrence. His landlord resides at upper floor while he is in occupation of ground floor on tenancy. The cause of the occurrence happens to be quarrel in between Saurabh Kumar, Govinda and Manish. Then, thereafter he took his son to Dr. Devan Akela and as per instruction, rushed to "Shankar Netralalaya", Chennai. Therefore, the matter was not reported at an earliest.
3. On the basis of the aforesaid written report, Rupaspur P.S. Case No. 85/2010 was registered under Section 341,324,326 IPC whereupon investigation was taken up and after concluding the same, charge-sheet was submitted under Sections 341, 324, 326 of the IPC whereupon vide order dated 18.4.2011 cognizance has been taken and the matter is pending for trial.
4. Contention on behalf of the petitioner is that institution of the case happens to be contrary to the prescribed law because of the fact that none of the ingredients of grievous hurt as illustrated under Section 320 of the IPC is fulfilled. As such institution of case followed with submission of charge- sheet under allied including Section 326, of the IPC is not at all 3 maintainable. In likewise manner, it has been submitted that no offence under Section 324 of the IPC is made out as the instrument whatever been alleged to have used during course of commission of crime happens to be the instrument for shooting, stabbing, cutting or any instrument which is used as weapon is likely to cause death or other kind of events is satisfied. So, even in worst case accepting that a case under Section 341 IPC is made out, that happens to be non cognizable and for that the investigating authority was required to take permission from the Magistrate as provided under Section 155 of the Cr.P.C. which has not been taken by the Investigating Officer. Hence whole prosecution is bad in the eye of law.
5. In an alternative, placing relevant paragraphs of the relevant medical books detailing component of eye, submitted that there happens to be mere scratch over cornea which happens to be outer layer over eye ball and the same is not going to affect eyesight. Also submitted that whatever ailment has been detected at "Shankar Netralaya" that is not supported with the allegation whatever been alleged and therefore, continuance of the prosecution will be nothing but an abuse of the process of the court. So, instant prosecution appears to be non permissible in the eye of law, consequent 4 thereupon is fit to be quashed.
6. Learned counsel for the petitioner also referred these following rulings:-
1. 1976 Cri L.J. 1247,
2. AIR 1968 SC 124,
3. AIR 1968 SC 117
4. 1989 Cri L.J. 1678
5. 1994 Cri L.J. 257
6. 1991 Cri L.J. 3329
7. On the other hand, learned S.C.24 vehemently opposed the submission advanced on behalf of petitioner and submitted that the prayer happens to be misconceived. Once investigation is concluded and charge-sheet is filed and the same is accepted, that means to say the cognizance taking court had found prima facie material available in the case diary on application of judicial mind followed with summoning of accused means identification of culprit responsible commission of the aforesaid crime. When cognizance had already been taken then in that event, unless and until the said order is put to challenge, the FIR and the charge-sheet in the changed situation cannot be quashed as the stage of the case has proceeded a step forward. So submitted that the prayer of 5 the petitioner appears to be non tenable in the eye of law and is accordingly fit to be rejected.
8. Certainly, when after conclusion of investigation charge-sheet is submitted followed with taking of cognizance on the basis thereof, the order of cognizance is also required to be challenged because of the fact that all the event happens to be inter-linked in such a way that they are inseparable.
9. So far application of writ jurisdiction is concerned, State of Hariyana & Ors v. Bhajan Lal & Ors as reported in AIR 1992 SC 604. appears to be a lamp post for adjudicating upon the matter in hand. Following criteria have been fixed by the Hon'ble Apex Court for the purpose of quashing of proceeding either under writ jurisdiction or under inherent power as prescribed under Section 482 of the Cr.P.C.
For better appreciation the same is incorporated hereinafter:-
"(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 6 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 uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings 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 proceedings 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, 7 providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide 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."
10. The law is well settled. If the matter in hand does certify application of any of the ingredients so prescribed under above referred decision then in that event, prayer of the petitioner is fit to be allowed. For that, the fact of the case has to be looked into to sort out whether prima facie case is found to justify the order of cognizance which was taken on the basis of police report submitted in accordance of Section 173 Cr.P.C.
on the basis of institution of a criminal case. I do not want to detail every ingredient at this stage because the case is yet to sprout. Section 320 IPC which defines the grievous hurt also takes notice with regard to impairment of eyesight one or both. The instrument is not material for impairment of eyesight nor 320 IPC requires so. So, by piercing iron wire in the left eye of informant's son by which impairment of eye has been alleged does fulfill the requirement of Section 320 of the IPC. Presence 8 of cornea at the outer surface of eye-ball, it is laceration or suffering from previous ailment, for the present is of no consequent because of the fact that meticulous examination is not at all warranted at the present stage. It happens to be the matter to be taken up during course of trial.
11. Not only this, the trial court is not at all governed with the order of cognizance. It has to form its own independent view at the time of framing of charge regarding application of particular section and further, even at the time of concluding and dictating the judgment the trial court is competent to add, alter the charge on the basis of evidence whatever been adduced during course of trial. On this score, I would refer the decision as reported in 2002 (2) PLJR 28 wherein at paragraph-8 it has been held that:-
" Now so far the question as to what offences were committed whether there was a case under Section, 406, 407 or 424 IPC or not, I leave it to the trial court to consider as to what offence are made out and under what heads of criminal offence charge should be framed on the prima facie materials available on record. Cognizance is taken of a case and not under particular Section of penal law. It is up to the trial court to consider this question and try the accused under appropriate penal Section of the appropriate law."
12. Therefore, the application of appropriate section for the omission and commission committed by 9 accused has to be seen at the stage of framing of charge which appears to be the proper stage for its adjudication. The decisions cited on behalf of the petitioner as referred above have minutely been gone through and none of it takes care of to the point which is involved in this writ petition. Furthermore, as the petitioner failed to challenge the order of cognizance, it is bound to affect adversely upon prospect of instant writ.
13. Thus, the prayer raised on behalf of the petitioner appears to be misconceived and is accordingly, rejected.
(Aditya Kumar Trivedi, J.) perwez