Himachal Pradesh High Court
Sh. Rajwant Singh vs State Of Himachal Pradesh on 6 September, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 6th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CrPC
No. 249 of 2014
Between:-
1. SH. RAJWANT SINGH,
S/O LATE SH. TIKKAM
SINGH, RESIDENT OF
VPO KILBA, TEHSIL SANGLA,
DISTRICT KINNAUR, H.P.
2. SMT. MANDASS DEVI,
WIFE OF SH. RAJWANT SINGH,
RESIDENT OF VPO KILBA,
TEHSIL SANGLA,
DISTRICT KINNAUR, H.P.
3. SH. RAVINDER SINGH NEGI,
S/O SH. RAJWANT SINGH,
S/O LATE SH. TIKKAM SINGH,
RESIDENT OF VPO KILBA,
TEHSIL SANGLA,
DISTRICT KINNAUR, H.P.
.....PETITIONERS
(BY SH.G.C. GUPTA, SENIOR ADVOCATE, WITH MS. MEERA
DEVI, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH.
2. SH. TEJWANT SINGH NEGI,
S/O SH. TIKKA RAM,
RESIDENT OF VPO KILBA,
TEHSIL SANGLA,
DISTRICT KINNAUR.
.....RESPONDENTS
::: Downloaded on - 31/01/2022 23:00:51 :::CIS
2
(1. SH. NAND LAL THAKUR, ADDITIONAL ADVOCATE
GENERAL, WITH SH. KUNAL THKAUR, DEPUTY
ADVOCATE GENERAL & SH. RAM LAL THKAUR AND
SH. SUNNY DHATWALIA, ASSISTANT ADVOCATES
GENERAL,FOR RESPONDENT NO.1.
.
2. SH. ARVIND SHARMA, ADVOCATE, FOR
RESPONDENTS NO.2)
Reserved on: 03.09.2021
Decided on: 06.09.2021
____________________________________________________
This petition coming on for hearing this day, the Court passed
the following:
ORDER
FIR Dated Police Station Sections
No.
3 22.03.2013
r Sangla, District 447, 448 and 201 read with
Kinnaur, H.P. Section 34 of IPC
2. Challenging the order taking cognizance and the issuance of notice of accusation, the accused have come up before this Court under Section 482 of CrPC.
3. The incident arose because of a land dispute between Shri Rajwant Singh Negi (A-1) and Shri Tejwant Singh Negi, the complainant.
They belong to a small village, Kilba, in district Kinnaur. The village has its panchayat stationed at Kilba.
4. Shri Tejwant Singh Negi initially gave a written complaint on 15.11.2012 to the officer-in-charge of Police Post, Karcham, falling under Police Station Sangla. The said complaint forms part of the police file. Shri Tejwant Singh Negi alleged that he has two brothers and two sisters. The elder brother resides in a foreign country. The middle one is Shri Rajwant Singh Negi. His father, during his lifetime, had separated Rajwant Singh Negi from his home and separated his share. He started staying in a house raised by his father in the orchard. Six years earlier (somewhere around 2006), Shri Tejwant Singh Negi, out of his own free will, had allowed his ::: Downloaded on - 31/01/2022 23:00:51 :::CIS 3 brother, Shri Rajwant Singh Negi, to use two rooms and a kitchen situated in the second storey of the house. His brother and his family members were residing in the same house. Shri Tejwant Singh Negi further stated that he .
had kept the entire third floor and one room, kitchen, and a bathroom of the second floor and three rooms, kitchen, and a bathroom in the ground floor with him. His servant, along with his family, stays on the ground floor, and they take care of the house and the apple orchard. Shri Tejwant Singh Negi alleged that for the last few days, he was busy with the work related to elections and, as such, could not visit his home. Taking advantage of his absence, Smt. Mandassi (A-2), wife of Shri. Rajwant Singh Negi and Rohan Singh threatened his servant, Prakash Chand, and removed them from his building, and they also threw away TV and other household articles. After that, they put a lock on the said room. On being forcibly removed, his servant was forced to stay in another area of the orchard. On reaching home, he came to know about the incident and reported the matter to the police.
5. The investigation started, and a note was made on the complaint and on16.12.2012, in which it was stated that parties were summoned, but none appeared before the investigator. A perusal of the entire police file reveals that the police officials dumped this application, and nothing happened.
6. On 19.02.2013, the female caretaker of Shri Tejwant Singh Negi visited police post-Karcham and informed them about other criminal acts. She stated that her husband works for Shri Tejwant Singh Negi in his orchard. Shri Tejwant Singh Negi stays out of home, and he has handed over the responsibility to take care of his home and orchard. At noon, when she went towards Shri Tejwant Singh Negi's house, she noticed that his nephew. Rocky had engaged a mason and was carrying out work in the said house. Noticing this, she informed Shri Tejwant Singh Negi, who asked her to get the said work stopped. When she told the mason to stop the work, ::: Downloaded on - 31/01/2022 23:00:51 :::CIS 4 then he refused. In the meantime, Rocky inflicted slaps on her face, and due to such slaps, she received injuries, and she wanted her for medico-legal examination. She also said to police officials that Rocky had threatened her .
to beat them in the night. The police officials entered the said report in the daily diary register at Sr. No.5 on 19.02.2013 in the police post-Karcham, district Kinnaur.
7. The police officials started an investigation as mentioned in the daily diary entry No.8, dated 19.02.2013, and sent an Investigator to get the MLC of the informant Smt. Tara.
8. A perusal of the police report reveals that the investigator dumped this matter and did not take any steps. The local police had slept over the matter and did nothing. Another incident took place on 22.03.2013.
Shri Tejwant Singh Negi made a written complaint to SHO Police Station Sangla, District Kinnaur. In the said complaint, he narrated the earlier incidents and stated that even he had telephonically informed the police officials, but they did nothing. The complainant informed that on 22.03.2013, when he and his servant and wife of his servant went to his orchard to spray the apple trees, Smt. Mandassi (A-2) and Robin Bisht (alias Rokender Singh A-3) trespassed in his orchard. The investigation reveals that the official name of Robin is Rokender Singh. At that time, they were carrying sticks, and they threatened him, harassed him and his servants, and threatened to kill his servant. They further dared him not to enter the orchard and the main farm henceforth.
9. Based on this information, the police registered the FIR captioned above.
10. The Police officials prima facie found offences punishable under Sections 447, 448, 201, read with Section 34 of IPC.
11. During the investigation, the investigator prepared the site plans of the house and orchard. The complainant handed over the keys to the investigator of the locks, which the accused persons broke. The ::: Downloaded on - 31/01/2022 23:00:51 :::CIS 5 investigator also procured a copy of girdawari dated 15.05.2013 from the Kanungo Sangla, tatima, and a copy of the mutation. The investigator took photographs, which show telltale signs. The investigator also recorded a .
supplementary statement of Shri Tejwant Singh Negi and his servant and other persons.
12. During the investigation, the investigator found the role of Shri Rajwant Singh Negi but did not find any allegations of threats. Thus, after completing the investigation, the police station officer-in-charge filed a report under Section 173(2) of CrPC to prosecute Shri Rajwant Singh Negi (A-1), Smt. Man Dassi (A-2) and Shri Rokender Singh Singh (A-3).
13. As revealed from the order dated 22.08.20213, the learned Chief Judicial Magistrate, Kinnaur at ReckongPeo, found a prima facie case, took cognizance of the offences, and summoned the accused persons.
14. Vide order dated 02.09.2013, learned Chief Judicial Magistrate, issued a notice of accusation to the accused persons for the commission of offences under Sections 447 and 448 read with Section 34 of IPC and Section 102 read with Section 34 of IPC.
15. Aggrieved by order of taking cognizance, issuance of summons, and notice of accusation, all the accused, have come up before this Court by way of this petition under Section 482 of CrPC, seeking quashing of FIR and closure of all further proceedings.
16. Mr. G.C. Gupta, learned Senior Advocate, has argued that in the FIR, Sh. Rajwant Singh Negi was not named, and it was after deliberation that he was arraigned as accused. Learned Senior Advocate further argued that even if the entire police report is seen, there is still not even an iota of evidence of Shri Rajwant Singh Negi's participation, involvement, and no overt act has been attributed to him. Learned counsel further argued that no trespass case is made out against other accused because the orchard was joint amongst the parties, and as such, there was no criminal trespass.
::: Downloaded on - 31/01/2022 23:00:51 :::CIS 617. Mr. Arvind Negi, learned counsel appearing on behalf of the complainant, opposed the petition and stated that this Court could not go into the case's merits at this stage.
.
18. Mr. Nand Lal Thakur, learned Additional Advocate General, argued that it is an open and shut case for the accused given the clinching evidence collected by the prosecution. Learned Additional Advocate General further argued that it is a case where the prosecution will succeed and eventually all the accused will be held guilty of the offences. Thus, the State prayed for the dismissal of the petition filed by all the accused persons.
ANALYSIS AND REASONING:
19. As far as the case against Shri Rajwant Singh Negi is concerned, a perusal of the written complaint, scribed by Shri Tejwant Singh Negi in his own hands, mentions the criminal trespass and breaking of locks on previous occasions, but regarding the incident, which had taken place on 22.03.2013, the complainant specifically named only Smt. Mandassi (A-2) and Robin Bisht alias Rokender Singh (A-3), and not Shri Rajwant Singh Negi.
20. In the earlier reports, Shri Tejwant Singh Negi explicitly mentioned that Smt. Mandasi and his nephew Rohan had threatened his caretaker and removed their belongings. Thus, even in that report, he did not name Shri Rajwant Singh Negi. After that, in the report dated 19.02.2013, lodged by Smt. Tara, the wife of caretaker of Shri Tejwant Singh Negi, again stated that the nephew of Shri Tejwant Singh Negi had engaged a mason and was repairing the house, and when she informed Shri Tejwant Singh Negi, then he asked her to get the work stopped. When she asked the mason to stop the work, he refused to do so, then at this stage, the same, and at that time, his nephew (A-3) slapped her. Thus, in this incident also, the name of Shri Rajwant Singh Negi is not there. Only the seizure memo, which mentions the name of Shri Rajwant Singh Negi, whereby Shri ::: Downloaded on - 31/01/2022 23:00:51 :::CIS 7 Tejwant Singh Negi had handed over a bunch of keys to the investigator and at that time had mentioned that these were the keys of the locks, which Shri Rajwant Singh Negi, Smt. Mandassi and Shri Robin had broken on .
17.03.2013.
21. In the complaint, dated 22.03.2013, Shri Tejwant Singh Negi himself wrote that when he reached home, he came to know about the incident, and at that time, he did not mention the previous incident that took place on 17.03.2013.
22. Thus, there is no evidence to conclude that Mandassi (A-2) and Rokender Singh (A-3) had broken the locks and thrown them in the riven with the involvement and participation of Shri Rajwant Singh Negi (A-1).
23. Thus, if all the evidence collected against Shri Rajwant Singh Negi is accepted as true and correct on its face value, it still does not make any case against him.
24. Given above, the order of taking cognizance and issuance of summons and notice of accusation issued to Shri Rajwant Singh Negi is concerned; those are not legally sustainable, thus quashed and set aside. His bail bonds are discharged.
25. So far as other accused Mandassi (A-2) and Rokender Singh (A-3) are concerned, Shri Tejwant Singh Negi had specifically named them in the incident dated 22.03.2013. The investigator also procured the Girdawari from the concerned Kanungo, which shows that the concerned orchard was in the ownership and possession of Shri Tejwant Singh Negi. Similarly, the investigator also procured Jamabandi, which also reflected the said orchard in the ownership and possession of Shri Tejwant Singh Negi.
26. In this case, neither A-2 nor A-3 were prosecuted or punished for allegations mentioned in the earlier pieces of information and were entered only in the daily diary registers. Thus, the act of the investigator to ::: Downloaded on - 31/01/2022 23:00:51 :::CIS 8 add earlier incidents is within the purview of Section 180, and 219 CrPC does not violate Article 20(2) of the Constitution of India.
27. Given above, there is prima facie evidence available against .
Mandassi (A-2) and Rokender Singh (A-3) and thus, learned Chief Judicial Magistrate was fully justified in taking cognizance against these two accused persons. Hence, the petition filed by Mandassi (A-2) and Rokender Singh (A-3) is dismissed.
Petition is closed in the terms of paragraphs 24 & 27.
Anoop Chitkara, Judge September, 06, 2021 (R.Atal) ::: Downloaded on - 31/01/2022 23:00:51 :::CIS