Rajasthan High Court - Jodhpur
Dr Umesh Sharma vs State & Anr on 11 May, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1439 / 2017
Dr. Umesh Sharma S/o Shri Bhagirath Prasad, Aged About 60
Years, Resident of House No. 44-A, Street No. 1, Firozpur Cant
(Punjab).
----Petitioner
Versus
1. The State of Rajasthan.
2. Shri Dal Chand, Head Constable No. 45, Authorized Officer
Police Station P.B.I. Medical & Health Services, Rajasthan, Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. R.S. Choudhary
For Respondent(s) : Mr. V.S. Rajpurohit, P.P. for the State.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 11/05/2017 Accused-petitioner has preferred this misc. petition under Section 482 Cr.P.C. for quashing FIR No.10 of 2017, registered at Police Station PBI, Medical & Health Services, Rajasthan, Jaipur. In the impugned FIR, petitioner is charged for offences punishable under Section 4, 5, 6, 23 & 21 of Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Rule 9 & 10 of the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 and Sections 315, 511, 420, 120-B of the Indian Penal Code (IPC).
(2 of 9) [CRLMP-1439/2017] Succinctly stated, the facts of the case are that on an information received from one Babulal about foetus sex determination racket a decoy was sent where sex determination tests were conducted. The ultrasound machine found at the place and used illegally was seized for violation of the provisions PCPNDT Act, Rules, and the Indian Penal Code with registration of FIR. The present petitioner was the Manager serving at the ultrasound centre.
Learned counsel for the petitioner submits that on the basis of allegations levelled in the FIR no offence is made out against the petitioner and the impugned FIR is nothing but a sheer abuse of process of law. Learned counsel would contend that sex determination test was not conducted at the ultrasound centre of the petitioner and no incriminating record has been found by the police authorities at the centre as such no ofence of PCPNDT is made out against petitioner as detailed in the FIR. Learned counsel for the petitioner further argued that allowing investigation into the impugned FIR would result in abuse of the process of the Court and therefore investigation in the matter be clogged perpetually and the same be annulled. Lastly learned counsel urged that assuming that any offence is committed, the incident is alleged to have been committed at Firozpur Cantt., Punjab and not in Rajasthan, therefore, local police of Firozpur has the jurisdiction to lodge FIR and investigate into the matter as such lodging of FIR by SHO PS PBI Medical & Health Services, Rajasthan is beyond territorial jurisdiction. In support of his (3 of 9) [CRLMP-1439/2017] arguments, learned counsel has placed reliance on a decision of coordinate Bench of this Court in B.L. Koli Vs. Union of India, reported in 2010(1) Criminal Law Reporter (Raj.)841.
Per contra, learned Public Prosecutor has argued that the FIR prima facie discloses commission of cognizable offence by the petitioner and therefore prayer of the petitioner for quashing the same is not at all tenable. Learned Public Prosecutor has strenuously urged that grounds set out in the petition for quashment of FIR are falling short of requirements laid down by the Supreme Court in many authoritative pronouncements and therefore no interference with the impugned FIR is warranted. It is submitted that inherent powers are to be exercised with great care and circumspection for quashing FIR and criminal proceedings and instant one is not a case wherein exercise of such power is desirable. Learned Public Prosecutor further submits that prima facie sufficient incriminating material is against the petitioner as such exercise of extraordinary inherent powers for quashing FIR cannot be invoked. While countering argument of learned counsel for the petitioner, it is submitted by learned Public Prosecutor that partly offences are committed within the State of Rajasthan, therefore, by virtue of clause (b) of Section 178 Cr.P.C., objection of territorial jurisdiction is wholly untenable.
I have heard learned counsel for the petitioner, learned Public Prosecutor and gone through the case file.
(4 of 9) [CRLMP-1439/2017] The extraordinary inherent powers conferred on this Court under Section 482 Cr.P.C. are wide in amplitude but these powers are also circumscribed by certain riders and cannot be exercised in a routine manner for quashing FIR and criminal proceedings. The inherent powers being extraordinary in nature, are to be exercised very sparingly with great care and circumspection with the solemn object to prevent abuse of the process of the Court or otherwise to secure ends of justice. In case Court is satisfied that the allegation contained in the FIR requires investigation, it is obviously not desirable for this Court to exercise inherent powers to stifle a legitimate prosecution. Supreme Court, in State of Haryana Vs. Bhajan Lal & Ors. [1992 Supp (1) SCC 335], has examined ambit and scope of the powers under Section 482 Cr.P.C. for quashing FIR and the Court has laid down requisite guidelines in the matter. The Court held:
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report or the FIR, 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.
(5 of 9) [CRLMP-1439/2017] (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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 within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or FIR 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 F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no 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 FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding 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 proceeding 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, providing efficacious redress for the grievance of the aggrieved party.
(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.
The Court has further observed:
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the FIR and that the extraordinary (6 of 9) [CRLMP-1439/2017] or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.
The law laid down in Bhajan Lal's case (supra) is clear and unequivocal which has been followed by the Supreme Court in subsequent decisions also. As such, while considering the question of quashing FIR in a petition under Section 482 Cr.P.C., prejudging the prosecution case by examining its weakness and contradictions is not permissible. It is only when on a bare reading of FIR no offence is spelt out, Court may exercise inherent powers. If the grounds set out in the petition for assailing the impugned FIR are examined on the parameters for its quashment, then it would ipso facto reveal that the principal ground of challenge that it does not prima facie disclose commission of an offence is lacking the requisite sting.
It may be observed here that the role of the petitioner for commission of aforesaid offences is clearly spelt out in the FIR. He was Manager at the clinic where the decoy was tested for sex- determination. On the basis of prima facie incriminating evidence and violation of the provisions of the PCPNDT and IPC being revealed, the present FIR was lodged. In the impugned FIR petitioner is accordingly arrayed as an accused under Sections 4, 5, 6, 23 & 25 of the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Rule 9 & 10 of the PCPNDT Rules and Sections 315, 511, 420, 120-B of the IPC.
(7 of 9) [CRLMP-1439/2017] Specific pejoratives of conducting illegal sex determination of pregnant women are levelled in FIR against the petitioner and his active involvement in commission of the offences. Therefore, it cannot be said at this stage that a perusal of the FIR does not disclose any offence against the petitioner or that continuance of the proceedings against him is an abuse of the process of the Court. However, at this stage, I refrain from expressing any opinion on merits of the case lest prejudice would be caused to the either side.
The argument of the learned counsel for the petitioner questioning territorial jurisdiction of the appropriate authority of State of Rajasthan to prosecute the petitioner as per the provisions of PCPNDT Act requires judicial scrutiny on the touchstone of Section 177 and 178 Cr.P.C. The foremost requirement for determining territorial jurisdiction, i.e., venue of inquiry or trial of a case, rests on the averments contained in the complaint or chargesheet, and therefore for adjudicating such vital issue due credence is to be given to the averments contained in the complaint/FIR. If FIR Ex.4 is examined in totality, then it would ipso facto reveal that part payment for determining sex of foetus was accepted by the accused persons from decoy at Raisinghnagar and further she was assured to convey the result of the test. The relevant excerpts from the FIR in this behalf, in vernacular, read as under:
(8 of 9) [CRLMP-1439/2017] "lg;ksxh efgyk Jherh fdj.k nsoh }kjk MkW- v'kksd dqekj ,oa ulZ lanhi dkSj ls lEidZ fd;k x;k rks MkW- v'kksd dqekj xqIrk us crk;k fd eSa vkids lkFk viuh ulZ lanhi dkSj dks lkFk Hkstdj fdlh MkW- }kjk Hkzw.k dh fyax tkap djok nwaxk ftlds fy, 35000 :i;s yxsaxs rFkk yM+dh gksus ij xHkZikr djus ds fy;s dqy 15 gtkj :i;s yxsaxs ftuesa ls 20 gtkj :i;s vkidks ,MokUl ds :i esa nsus iM+saxs 'ks"k fyax tkap ds fnu ns nsukA "
"blds ckn Jherh fdj.k nsoh lg;ksxh efgyk ,oa Jherh ,drk 'kekZ dks Hkwzw.k fyax tkap gsrq ekaxh x;h ,MokUl jkf'k chl gtkj :i;s nsus gsrq U;w egkohj uflZax gkse jk;flaguxj ftyk Jh xaxkuxj ds fy;s jokuk fd;k x;kA rRi'pkr U;w egkohj uflZax gkse ij MkW- v'kksd xqIrk ds le{k Jherh fdj.k nsoh us chl gtkj :I;s lqJh lanhi dkSj dks fn;s rFkk MkW- v'kksd xqIrk ,oa lqJh lanhi dkSj us fnukad 17-03-2017 dks xHkZorh efgyk dh Hkzw.k fyax tkap djkus dks dgk rFkk 'ks"k jkf'k iUnzg gtkj :i;s ykus dks dgk rFkk le; izkr% 10 cts vkus dks dgk blds ckn fnukad 17-03- 2017 dks ;kstuk ds vuqlkj xHkZorh efgyk Jherh ,drk 'kekZ ,oa lg;ksxh efgyk Jherh fdju nsoh dks jokuk U;w egkohj uflZax gkse fd;k x;k rRi'pkr eu gSM dkfu- e; dk;Zokgh ny lnL;ksa ,oa Jh nsosUnz pkS/kjh lh-,e-,p-vks- chdkusj] Jh egsUnz flag ftyk ih-lh-ih-,-Mh-Vh- leUo;d chdkusj ds lkFk mudk ihNk izkjEHk fd;kA"
"lkFk vkbZ xHkZorh efgyk Jhefr ,drk 'kekZ ls ?kVukdze dh tkudkjh yh rks crk;k fd fnukad 16 ekpZ 2017 dks vki }kjk Jhefr fdj.k nsoh lg;ksxh efgyk dks 35000 :i, ds uacjh uksV fn, Fks muesa ls chl gtkj :i, U;w egkohj uflZax gkse] jk;flaguxj esa lqJh lanhi dkSj ulZ dks fdj.knsoh }kjk ns fn;k FkkA rFkk fnukad 17 ekpZ 2017 dks ianzg gtkj :i, fQjkstiqj esa dSaV pkSjkgs ij eq>s ys tkrs le; lanhi dkSj dks Jherh fdj.k us ns fn, FksA"^ Therefore, it can very well be said offence is partly committed within the local area of Raisinghnagar so as attract clause (b) of Section 178 Cr.P.C. in the matter. As such, the argument of the learned counsel though appears to be quite alluring but not of substance in the backdrop of facts and circumstances of the case and consequently rejected.
(9 of 9) [CRLMP-1439/2017] The judgment of this Court in B.K. Koli (supra) is clearly distinguishable wherein offence was not committed within the jurisdiction of Sikar rather it was committed at Delhi. The only reason for registration of FIR at Sikar (Rajasthan) was the place of residence of accused. Thus, the ratio of that judgment cannot render any assistance to the petitioner.
It is also noteworthy that matter is at the investigation stage and therefore at this stage interference with the statutory right of police to investigate the matter cannot be thwarted. Thus, keeping in view the facts and circumstances of the case in entirety, I feel dissuaded to interfere in the matter.
The upshot of the above discussion is that there is no merit in this petition and same is accordingly dismissed.
(P.K. LOHRA) J.
arora/