Madhya Pradesh High Court
Shiv Pratap Singh Bhadoria @ Sanjay vs The State Of Madhya Pradesh on 22 October, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH 1
MCRC No. 40474/2020
Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP
and Anr.
Gwalior, Dated :22/10/2020
Shri Dharmendra Nayak, counsel for the applicant.
Shri Abhishek Singh Bhadoriya, Panel Lawyer for the
respondent No.1/ State.
Heard finally through Video Conferencing. This application under Section 482 of CrPC has been filed for quashing the FIR in Crime No.268/2020 registered at Police Station Raun, District Bhind for offence under Section 307 read with Section 34 of IPC.
The necessary facts for disposal of present application in short are that complainant Rajiv Dubey lodged a FIR on 07/10/2020 to the effect that he was going towards his field. On the way, he found that on the question of construction of road, some dispute was going on between Deepu Vishwakarma and the applicant as well as co-accused Arvind Rajawat. Deepu Vishwakarma was insisting that 10 feet wide road should be constructed in front of his house, whereas the applicant and co-accused Arvind Rajawat, who is husband of Sarpanch, were insisting that they would construct 12 feet wide road. It was the defence of Deepu Vishwakarma that in case if the road is widen, then it would result in demolition of his platform. The complainant intervened in the matter and supported Deepu THE HIGH COURT OF MADHYA PRADESH 2 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
Vishwakarma. On this issue, there was a scuffle between the complainant and co-accused Arvind Rajawat. When the complainant objected to it, it is alleged that the present applicant took out a country-made pistol and co-accused Arvind Rajawat exhorted that he should kill the complainant. Accordingly, the applicant fired a gunshot but as a scuffle was going on, therefore, in stead of hitting the gunshot to the complainant, it hit one Shivendra, son of Rajesh Parihar and Ansh, son of Harish Rathore, who were standing nearby to witness the incident. Thereafter, the applicant and co-accused Arvind Rajawat ran away from the spot.
Challenging the FIR lodged by the complainant, it is submitted by the counsel for the applicant that the father of the injured Ansh Rathore and the mother of the injured Shivendra Parihar have given affidavits that somebody fired a gunshot, causing injuries to their children, however, the present applicant and co-accused Arvind Rajawat were not present on the spot. It is also mentioned in the affidavits that the police has not interrogated these witnesses. It is also mentioned in the affidavits that an old enmity is going on between the complainant as well as the accused persons on the question of election, therefore, the applicant and co-accused Arvind Rajawat have been falsely implicated. It is further submitted that a THE HIGH COURT OF MADHYA PRADESH 3 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
labourer who was constructing the road, had also given an application to the police on 09/10/2020 against the complainant party but no action has been taken. Thereafter, on 09/10/2020 Sarpanch Veena Singh, the sister of the present applicant and the wife of the co-accused also made a complaint to the SHO, Police Station Raun, District Bhind that the accused persons have been falsely implicated but no action has been taken. It is further submitted that the applicant is the resident of Gwalior and at the time of incident he was at Gwalior and thus, he was not present on the spot at the time of incident.
Heard the learned counsel for the applicant. Before considering the submissions made by the Counsel for the applicant, this Court think it apposite to consider the scope of interference at this investigation stage.
The Supreme Court in the case of Teeja Devi v. State of Rajasthan reported in (2014) 15 SCC 221 has held as under :
5. It has been rightly submitted by the learned counsel for the appellant that ordinarily power under Section 482 CrPC should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of CrPC. As per law settled by a catena of judgments, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with the investigation is not proper and it can be done only in the rarest of rare THE HIGH COURT OF MADHYA PRADESH 4 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
cases where the court is satisfied that the prosecution is malicious and vexatious.
The Supreme Court in the case of XYZ v. State of Gujarat reported in (2019) 10 SCC 337 has held as under :
14. Having heard the learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the writ petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsel have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated.
Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against 2nd respondent, we are of the view that the High Court has committed error in quashing THE HIGH COURT OF MADHYA PRADESH 5 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
the proceedings.
(Underline supplied) The Supreme Court in the case of State of T.N. Vs. S. Martin, reported in (2018) 5 SCC 718 has held as under :
7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for.................
The Supreme Court in the case of S. Khushboo v. Kanniammal reported in (2010) 5 SCC 600 has held as under :
17. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of Haryana v. Bhajan Lal to take note of two such guidelines which are relevant for the present case:
(SCC pp. 378-79, para 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.
* * * (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."
18. It is of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. this Court observed that a criminal complaint or a charge-sheet can only be quashed by superior courts in THE HIGH COURT OF MADHYA PRADESH 6 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence.
19. Similarly, in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque this Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice.
20. In Shakson Belthissor v. State of Kerala this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed: (SCC pp. 478, para 25) "25. ... '16. ... One of the paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.'*"
The Supreme Court in the case of Sangeeta Agrawal v. State of U.P., reported in (2019) 2 SCC 336 has held as under :
8. In our view, the Single Judge ought to have first set out the brief facts of the case with a view to understand the factual matrix of the case and then examined the challenge made to the proceedings in the light of the principles of law laid down by this Court and then recorded his finding as to on what basis and reasons, a case is made out for any interference or not.
The Supreme Court in the case of State of A.P. v. Gourishetty THE HIGH COURT OF MADHYA PRADESH 7 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
Mahesh reported in (2010) 11 SCC 226 has held as under :
18. While 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/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.
19. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or 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 or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.
20. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of THE HIGH COURT OF MADHYA PRADESH 8 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482.
The Supreme Court in the case of M. Srikanth v. State of Telangana, reported in (2019) 10 SCC 373 has held as under :
17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings.
Thus, it is clear that although this Court cannot make a roving enquiry at this stage, but if the uncontroverted allegations donot make out any offence, then this Court can quash the F.I.R.
This Court has gone through the affidavit of Harish Rathore, father of Ansh Rathore and Smt. Guddi, mother of Shivendra Parihar. In these affidavits, they had not claimed that they had witnessed the incident. Further, if they have been examined by the police as eye witnesses, then it is clear thata the applicant is actively involved in winning over the witnesses. Even otherwise, if some of the witnesses turn hostile, still then a person can be convicted on the evidence of single eye-witness. It is not the quantity but it is the quality of evidence which is material.
THE HIGH COURT OF MADHYA PRADESH 9 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
In the present case, the complaint was lodged by Rajiv Dubey. The complainant has claimed himself to be an eye-witness. Further, it is the allegation of the complainant that when he tried to support Deepu Vishwakarma, then there was a scuffle between co-accused Arvind Rajawat and the complainant. The applicant took out a country-made pistol and on the exhortation of co-accused Arvind Rajawat, he fired a gunshot with an intention to kill him but due to scuffle, Ansh Rathore and Shivendra Parihar who were standing at nearby place, to witness the quarrel, got injured. Thus, even if the affidavits of Harish Rathore and Smt. Guddi are considered, but still there is a statement of eye-witness, who is also the complainant in the case.
So far as the contention that the complaint has been lodged because of old enmity on the question of election is concerned, it is suffice to mention here that this Court while exercising power under Section 482 of CrPC cannot appreciate the material which is available on record. The enmity is a double-edged weapon and it has to be decided by the Trial Court as to whether the incident took place because of enmity or the accused persons have been falsely implicated. Furthermore, it is well-established principle of law that this Court, at this stage, cannot look into and consider the defence of the accused. Furthermore, in order to substantiate the defence of THE HIGH COURT OF MADHYA PRADESH 10 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
enmity, the counsel for the applicant has read out the application dated 09/10/2020 which was made by the wife of the co-accused. In this application, it has been mentioned that in the year 2014-2015, the wife of the co-accused had won against one Smt. Vinita, wife of Manmohan. It is not the case of the applicant that Rajiv Dubey, is in any manner, related to Manmohan. Thus, it is clear that the applicant has prima facie failed to establish the existence of any enmity also. Further, this application has to be decided on the basis of uncontroverted allegations and the defence of the accused cannot be looked into and this Court cannot make a roving enquiry.
So far as the question of alibi is concerned, except by mentioning that the applicant, at the time of incident, was at Gwalior, no other document has been placed on record. Furthermore, the plea of alibi is required to be proved like any other evidence in the trial and the same cannot be considered at this stage.
The Supreme Court in the case of Lalita Kumari Vs. Government of U.P. & Ors. reported in (2014) 2 SCC 1, has held that if the complaint discloses the commission of cognizable offence, then the FIR has to be recorded.
In view of the fact that a gunshot was fired causing injuries to two persons, namely, Shivendra Parihar and Ansh Rathore, coupled THE HIGH COURT OF MADHYA PRADESH 11 MCRC No. 40474/2020 Shiv Pratap Singh Bhadoria alias Sanjay vs. State of MP and Anr.
with the fact that the firing of gunshot has also been admitted by Harish Rathore and Smt. Guddi in their affidavits, as well as the medical evidence also corroborates the allegations made in the FIR, The Supreme Court in the case of M. Srikanth v. State of Telangana, reported in (2019) 10 SCC 373 has held as under :
17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings.no case is made out warranting interference. Accordingly, this application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2020.10.23 11:14:00 +05'30' VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00'