Madhya Pradesh High Court
Sameer Kumar Sharma vs The State Of Madhya Pradesh on 20 March, 2015
(1)
M.Cr.C. No.9955/2014
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
M.Cr.C. No.9955/2014
Sa me er Ku mar Shar ma
S/o Lat e Shri Shr i Ram Pratap Shar ma,
Age d- 6 5 year s, Occ upat ion- Retir ed (State Bank ),
R/o B- 57 Samadhiya Colony, T ar aganj,
La sh ka r Gwalior
V e r s u s
1. M.P. Gov t. through P.S. Janak ganj (SC/ST)
La sh ka r, Gwalior
2. Vin od Khat ik , s/o Dhanir am Khatik,
Age d- 4 2 year s, R/o Mohalla Har kota Seer,
Nea r Pa nc hmuk hi Hanuman, Raraganj,
La sh ka r Gwalior ( M.P.)
3. Shiv Prat ap Singh Sik ar war
S/o Lat e M.P. Singh Sik ar war,
Age d- 5 9 year s, Occ upat ion C.S.P. Las hk ar ,
Gwa lior , Pres ently Deput y Superint endent of
Polic e (GRP) Railway Station, Gwalior ( M.P.)
(the E.O. Not empower ed)
4. Sha ile n dr a Singh Jadon, then S.H.O. P.S.
Ja na kg a n j, Gwalior, Present ly- Deput y
Sup er in te n dent of Polic e (STF), in front of Vijay
Nag ar , Bu st Stand Amk ho, Kampoo, Las hk ar ,
Gwa lior (M.P.)
-- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----
For Petitioner : Sameer Kumar Sharma (Self)
For Respondents : Ku. Nutan Saxena, learned P.P. for the
respondent no.1/State.
Shri S.N. Dubey, learned counsel for the
respondent no.2.
Shri Padam Singh, learned counsel for the
respondent no.3.
None for the respondent no.4.
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O R D E R
(Passed on 20th March, 2015)
1. By invoking the extraordinary power and jurisdiction of this Court under Section 482 of the Code of Criminal Procedure 1973, (for short 'the Code'), the petitioner has filed this petition seeking (2) M.Cr.C. No.9955/2014 quashment of his prosecution in connection with Crime No.678/2010 registered at Police Station Janakganj, Gwalior pending as Criminal Case No.93/2011 State of M.P. through P.S. AJK, Gwalior Vs. Sameer Kumar Sharma and two others (for short ' the criminal case') before the Court of Special Judge, Gwalior under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, (for short ' the Act).
2. For just and proper adjudication on the petition the prosecution case is given below in brief:-
2.1 On 11.11.2010, complainant Vinod Khatik, who is respondent no.2 herein, submitted a written complaint to the S.H.O. Police Station Janakganj, Gwalior (for short 'the S.H.O.') alleging therein that on 01.11.2010 Sameer Kumar Sharma, who is the petitioner herein, had taken a ladder from his shop on the rent of Rs.15/- per day for three days. On the fourth day, he did not return the ladder and pay the rent. He, therefore, went to his residence for taking rent and the ladder. At that time, he told him that he is still in need of the ladder and he would return the ladder along with the rent when the ladder is no more required. However, he did not return the ladder nor did he pay the rent. On 11.11.2010 at about 5:30 p.m. he again went to his residence demanding from him the payment of rent and return of ladder. Having heard so, he became angry and told him to leave his house. When he was infront of his house, his two sons, namely, Mayank and Maranal, who are also accused of the case, came. They hurled filthy abuses, humiliated and insulted him on the ground that he is a member of Scheduled Caste Community. Not only that they fell him down and caused marpeet with fists and kicks. As a result, he sustained injuries. Seeing the incident, two passersby, namely, Mukesh and Abhishek Sharma came to his rescue. When he was to leave the place of occurrence, they gave him life threats.
Since then, he has been living in fear and he (3) M.Cr.C. No.9955/2014 apprehends that they cause physical harm to him. 2.2 On 01.12.2010, the complainant wrote a letter to the City Superintendent Police Lashkar, Gwalior (for short 'the C.S.P.') complaining that he lodged a written complaint with Police Station Janakganj on 11.11.2010, but the S.H.O. had not taken any legal action on his report. He also annexed a copy of the report with it. Upon the letter itself, the C.S.P. made a noting, whereby he passed directions to summon the complainant and his witnesses and to ask for the explanation of the S.H.O. as to why he had not taken action upon the report of the complainant. 2.3 On 17.12.2010, the C.S.P. wrote a letter to the S.H.O. stating that he inquired into the complaint and he found the allegations made in the complaint are primafacie true. Therefore, he is directed to take appropriate action upon the complaint. The C.S.P. also forwarded with the letter the statements of the complainant and his witnesses, namely, Abhisehk and Mukesh.
2.4 On 26.12.2010, on the basis of the written complaint of the complainant Sub-Inspector Jival Lakra registered the F.I.R. at Crime No.678/2010 against the petitioner and his two sons for the offences punishable under Sections 294, 323, 506 and 34 of the I.P.C. and 3(1)(10) of the Act.
2.5 The S.H.O. made over the case for investigation to the Police AJK, Gwalior as the case falls under its jurisdiction.
2.6 R.B.S. Bhadoria, the then D.S.P. Police AJK, Gwalior, investigated the case. Upon the completion of investigation by him, the chargesheet was filed on 27.01.2011 against the petitioner and his two sons.
3. The petitioner has filed this petition for the quashment of the prosecution on the following grounds:-
(i) That the C.S.P. is not empowered to hold the preliminary inquiry into the complaint and to direct the (4) M.Cr.C. No.9955/2014 S.H.O. to register the F.I.R. on the basis of the complaint.
(ii) That there is a delay of 46 days in the lodgment of the F.I.R.
(iii) That the F.I.R. is not proved in the trial Court in accordance with law.
(iv) That the allegations made in the F.I.R. and other evidence on record do not constitute primafacie any offence or make out a case against him and other accused persons.
(v) That criminal proceedings are instituted against him and others for wreaking vengeance on him and with a view to spite him due to private and personal grudge. Hence, continuance of the prosecution amounts to the abuse of the process of the Court.
The petitioner himself, who is well versed with law, has argued his case on the aforesaid points and prayed for the quashment of the F.I.R. and proceedings in the criminal case. He placed reliance upon a decision rendered by the Supreme Court in the case of Zandu Pharmaceutical Works Ltd. and others Vs. Mohd. Sharaful Haque and another reported in [2005 (2) CAR (SC) 715 = (2005) 1 SCC 122].
4. In reply to the arguments raised by the petitioner learned counsel for the respondents have submitted that the C.S.P. exercises power of superintendence over the P.S. Janakganj. He has, therefore, empowered under the provisions of Section 154(3) of the Cr.P.C. to direct the S.H.O. to register the F.I.R. on the basis of the complaint. They further argued that the C.S.P. has power to hold preliminary inquiry into the complaint as per law laid down by the Supreme Court in the case of Lalita Kumari Vs. Govt. of U.P. and others [2013 (5) MPHT 336 (SC) = 2014 (2) SCC 1]. They also argued that this Court has no jurisdiction under Section 482 of the Cr.P.C. to examine the case on the ground that the complainant has lodged the F.I.R. with ulterior motive and that the I.O. investigated the case with malafides. They also argued that this Court has no jurisdiction under Section 482 of the Cr.P.C. to examine the (5) M.Cr.C. No.9955/2014 correctness or otherwise of the allegations. They also argued that the trial Court had rejected the petitioner's application under Section 227 of the Cr.P.C. vide order dated 28.06.2011, whereupon the petitioner filed M.Cr.C. No.9192/2011 Sameer Kumar Sharma Vs. State of M.P. challenging aforesaid order. Vide order dated 08.05.2012 passed in the aforesaid M.Cr.C. this Court had rejected the petition holding that there is primafacie case against the petitioner and others. In view of the above order the petitioner is precluded from raising the issue that the F.I.R. and other material on record do not constitute any offence or make out the case against him and others.
5. This Court has anxiously considered the rival submissions and perused the entire material on record.
6. As per the material on record, the complainant lodged the complaint with the Police Station Janakganj at the first instance. But when the S.H.O. had not taken any action upon the complaint, he approached the C.S.P. and submitted him a copy of the complaint with a covering letter dated 01.12.2010. Undoubtedly, the C.S.P. has power of superintendence over the Police Station Janakganj. Under the circumstances, as per the provisions of Section 154(3) of the Cr.P.C., the C.S.P. has power to investigate the complaint himself or direct the S.H.O. to investigate it. Recently, in the case of Lalita Kumari Vs. Govt. of U.P. and others (supra), the Supreme Court in para 120.5 of its judgment has held that the preliminary inquiry in a case could be held to ascertain whether the information reveals any cognizable offence. Upon the perusal of the record, it appears that the C.S.P. has held preliminary inquiry to ascertain whether the contents of the complaint disclose any cognizable offence for which he recorded the statements of the complainant and Mukesh and Abhishek Sharma, who are the eye witnesses as per complaint. Having recorded the statements of them, he found that the complaint discloses a cognizable offence under Section 3(1)(10) of the Act. Thereafter, he directed the S.H.O. for registration of the complaint as an F.I.R. Therefore, the C.S.P. has not committed any illegality or impropriety in holding the preliminary inquiry into the complaint and later directing the S.H.O. for registration of the complaint as F.I.R.
(6) M.Cr.C. No.9955/20147. In the case of Ramesh Babu Vs. State of Andhra Pradesh and another [2012(4) Crimes 432 A.P.], the A.P. High Court has held that the High Court has no jurisdiction to examine the correctness or otherwise of the allegations for the purpose of exercising powers under Section 482 of the Cr.P.C. In view of the said law, this Court does not have power to examine under Section 482 of the Cr.P.C. whether the complainant has lodged the F.I.R. against him with ulterior motive.
8. In the case of State of Bihar Vs. P.P. Sharma (AIR 1991 SC 1260), the Supreme Court has held that mere allegations of malafides investigation by the investigating officer is no ground to quash the proceedings. In view of the said law, this Court has no power to examine under Section 482 of the Cr.P.C. whether the investigating officer had investigated the case with malafide intention.
9. Upon the perusal of the material on record, it appears that the complainant lodged the complaint with the Police Station Janakganj on 11.11.2010, the day of incident itself, but the S.H.O. had not taken cognizance forthwith upon it and has registered the complaint as F.I.R. upon the orders of the C.S.P., who had evidently issued the orders in the exercises of the powers under Section 154(3) of the Cr.P.C. In the circumstances, it is wrongly stated by the petitioner that there is a delay of 46 days in the lodgment of the F.I.R. Moreover this would not be a ground for quashing the prosecution case.
10. This Court is of the considered view that it cannot examine in exercising inherent power under Section 482 of the Cr.P.C. whether the prosecution has proved the F.I.R. at the trial in accordance with law.
11. In the case of MCD Vs. Ram Kishan Rohtagi [1983 (1) SCC 1], the Supreme Court has stated the quashing of the F.I.R. in exercise of extraordinary power under Section 482 of the Cr.P.C. in the following words;
"Taking allegations and the complaint as they were, without adding or substating anything, if no offence was made out only, then the High Court would be justified in quashing the proceedings in the exercise (7) M.Cr.C. No.9955/2014 of its power under Section 482 of the Cr.P.C.".
Upon the plain reading of the allegations made in the complaint, it can not be said that primafacie no offence is made out. In this context, it is pertinent to mention here that the petitioner filed an application under Section 227 of the Cr.P.C. for "discharge" in the trial Court, which was rejected by it vide order dated 28.06.2011. Being aggrieved thereby, the petitioner has filed the M.Cr.C. No.9192/2011 Sameer Kumar Sharma Vs. State of M.P., which was disposed of by an order dated 08.05.2012, whereby this Court upheld the order dated 28.06.2011 holding that a perusal of the F.I.R. discloses the commission of offence under Section 294, 323, 506 and 34 of the I.P.C. and 3(1)(10) of the Act. In view of the above findings of this Court, the petitioner is barred from raising the issue denovo that allegations made in the F.I.R. and other material on record do not constitute primafacie or make out a case against him and other accused persons because the said order of this Court has attained the finality for not being challenged in the Supreme Court.
12. In the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Asharful Haque and another (supra), the Supreme Court has held that the High Court may exercise extra-ordinary power conferred under Section 482 of the Cr.P.C. in the following three circumstances, namely, (i) to give effect to an order under the code of criminal procedure (ii) to prevent abuse of the process of the Court
(ii) to secure the ends of justice.
In view of the above proposition of law, this Court has examined the entire record and found that none of the above circumstance exists in the instant case. Therefore, this Court can not exercise extra-ordinary power under Section 482 of the Cr.P.C. to quash the F.I.R. and the criminal proceedings.
13. In the case of Amit Kumar Vs. Ramesh Chandra and another [(2012) 9 SCC 460], the Supreme Court has considered its various pronouncements and on the basis of them it has culled out 15 principles, which are mentioned in para 27 of the decision, as to when the High Court can exercise inherent power under Section 482 of the Cr.P.C. for quashing the F.I.R. and criminal proceedings. This Court has considered the facts of the case vis-a-vis the said (8) M.Cr.C. No.9955/2014 principles and found that the F.I.R. and the criminal proceedings of the case can not be quashed.
14. Recently, the Supreme Court in the case of N. Soundaram Vs. P.K. Pounraj and another [(2014) 10 SCC 616] has held that power under Section 482 of the Cr.P.C. should not be exercised to stifle a legitimate prosecution. Upon the perusal of the order-sheet dated 28.01.2015 of the trial Court, it appears that the case is fixed for defence evidence. Considering the stage of the case and the aforesaid law, this Court cannot quash the prosecution in the case, when it is at the fag end of the trial.
15. In the light of the above discussion, this Court comes to the conclusion that the petition being devoid of any merits and substance is hereby dismissed.
16. A copy of this order be sent to the trial Court.
Certified copy as per rules.
(RAJENDRA MAHAJAN) JUDGE ac/-
(9) M.Cr.C. No.9955/2014HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR M.Cr.C. No.9955/2014 Sa me er Ku mar Shar ma S/o Lat e Shri Shr i Ram Pratap Shar ma, Age d- 6 5 year s, Occ upat ion- Retir ed (State Bank ), R/o B- 57 Samadhiya Colony, T ar aganj, La sh ka r Gwalior V e r s u s
1. M.P. Gov t. through P.S. Janak ganj (SC/ST) La sh ka r, Gwalior
2. Vin od Khat ik , s/o Dhanir am Khatik, Age d- 4 2 year s, R/o Mohalla Har kota Seer, Nea r Pa nc hmuk hi Hanuman, Raraganj, La sh ka r Gwalior ( M.P.)
3. Shiv Prat ap Singh Sik ar war S/o Lat e M.P. Singh Sik ar war, Age d- 5 9 year s, Occ upat ion C.S.P. Las hk ar , Gwa lior , Pres ently Deput y Superint endent of Polic e (GRP) Railway Station, Gwalior ( M.P.) (the E.O. Not empower ed)
4. Sha ile n dr a Singh Jadon, then S.H.O. P.S. Ja na kg a n j, Gwalior, Present ly- Deput y Sup er in te n dent of Polic e (STF), in front of Vijay Nag ar , Bu st Stand Amk ho, Kampoo, Las hk ar , Gwa lior (M.P.) ORDER Post for 20.03.2015 (Rajendra Mahajan) Judge ( .03.2015)