Madhya Pradesh High Court
Haji Abdul Razzak vs The State Of Madhya Pradesh on 2 November, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 2ND OF NOVEMBER, 2023
MISC. CRIMINAL CASE NO. 61076 OF 2022
BETWEEN:-
1. HAJI ABDUL RAZZAK, S/O LATE HAJI
ABDUL WAHEED, AGED ABOUT 64 YEARS,
CULTIVATOR, DAIRY OWNER AND MINES
BUSINESS, R/O 910, NAYA MOHALLA,
RIPTA, BADI OMTI, P.S. OMTI, JABALPUR
(M.P.).
2. MOHAMMAD SARTAJ, S/O HAJI ABDUL
RAJJAK, AGED ABOUT 38 YEARS,
BUSINESS AT ABORAD, PERMANENT
RESIDENT OF 910, BADI OMTI, JABALPUR,
POLICE STATION OMTI, JABALPUR,
DISTRICT JABALPUR (M.P.).
3. SAQUIB AYAZ, S/O AYAZUR REHMAN,
AGED ABOUT 37 YEARS, OCCUPATION
BUSINESS, R/O NAYA MOHALLA, OMTI, PS
OMTI, JABALPUR (M.P.).
4. AKEEL AHMAD, S/O SAYEED AHMAD,
AGED ABOUT 46 YEARS, BUSINESS, R/O
1808, MANDI MADAR TEKRI, MAULANA
ABDUL KALAM AZAD WARD, JABALPUR
(M.P.).
. .....PETITIONERS
(BY SHRI MOHAMMAD ALI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION
HANUMANTAL, DISTRICT JABALPUR (M.P.)
2
2. MOHAMMAD SHABBIR S/O MOHAMMAD
NABI, AGED ABOUT 54 YEARS,
OCCUPATION - POCKET WITNESS OF
POLICE, R/O HOUSE NO. 93, EWS, NEW
ANAND NAGAR COLONY, HANUMANTAL,
P.S. HANUMANTAL, JABALPUR (M.P.)
PHONE NO. 8989141115.
.....RESPONDENTS
(NO. 1 BY SHRI BRAMHADATT SINGH - DEPUTY ADVOCATE
GENERAL)
(NO. 2 BY SHRI SANKALP KOCHAR - ADVOCATE)
................................................................................................................................................
Reserved on: 22.08.2023
Pronounced on : 02/11/2023
This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:
ORDER
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure seeking quashing of FIR No. 27/2022 registered at Police Station, Hanumantal, Jabalpur for the offence punishable under Sections 308, 365, 386, 294, 452, 342, 506, 34, 120-B of the Indian Penal Code and Sections 25 and 27 of the Arms Act and the offence later on added under Sections 420, 467, 468 and 471 of the Indian Penal Code and also the further proceedings relating to ST No. 313/2022 arisen out of the FIR No. 27/2022 pending before the Court of V Additional Sessions Judge, Jabalpur.
2. To resolve the controversy involved in the present case and to answer the rival submissions made by the counsel for the parties, it is necessary to mention relevant facts of the case, which are as under:-
3. An FIR got registered against the petitioners at Police Station, 3 Hanumantal, District Jabalpur vide FIR No. 27/2022 for the offence punishable under Sections 308, 365, 386, 294, 452, 342, 506/34, 120B of the Indian Penal Code and Sections 25 and 27 of the Arms Act with additional offence under Sections 420, 467, 468 and 471 of the Indian Penal Code.
4. As per the case of the prosecution, on 12.01.2022, respondent No. 2 (complainant) submitted a computerized typed written report to SHO Police Station, Hanumantal alleging that in the year 2009-10 one Azhar was murdered at Kurai, District Seoni and he was the witness of the said incident. Thereafter, the petitioner No. 1 called the complainant (respondent No. 2) at his house and threatened him not to give any evidence in the case otherwise he would be killed, but the complainant did not accede to the said threat and gave evidence in the court, which got petitioner No. 1 annoyed and hence afterwards he was carrying ill- will against the complainant.
5. The complainant/respondent No.2 also filed a writ petition before this Court alleging anti-national criminal activities against the petitioner No. 1 and against the petitioner No. 2 that he encroached the land of educational institution i.e. Anjuman Islamiya and that land was being misused by petitioners No. 1 and 2 and their family members.
6. The police initiated enquiry against those illegal activities of the petitioners and in furtherance thereof CSP Jabalpur issued notice under Section 160 of Cr.P.C. to the complainant (respondent No. 2) so as to give proper facts to the police authority, but before complainant could do so, the petitioners sent their men to the house of the complainant. The said men of the petitioners threatened the complainant, made him hostage and putting gun on his head made call to petitioner No. 2 4 keeping mobile on speaker apprising him about the custody of the complainant. The said persons asked petitioner No. 2 as to what is to be done further with the complainant, upon which the petitioner Nos. 1 and 2 both instructed their men that complainant has given several written complaints to the police against them and he has to withdraw those complaints and his assurance for withdrawal of the complaints be taken on a stamp paper and if he does not agree to do so, he should be killed. In line with the said conversation, on a blank stamp paper signature of the complainant was obtained on the gun point and threat of life and afterwards the said persons took the complainant to the police station in the office of CSP Gohalpur where he was compelled to give statement to the police that whatever complaints made by him against petitioner Nos. 1 and 2 be treated to be withdrawn as he does not want to prosecute them any further. As per the complainant (respondent No. 2), all those things got done by giving threat of life to him and because of fear and pressure created upon him he had not raised his voice at the relevant point of time, but when police started taking action against these criminals (Petitioners) then only he dared to lodge the report to the police on 12.01.2022 about the incident committed on 19.09.2020 with him by the petitioners/accused persons.
7. Shri Ali appearing for the petitioners tried to establish that the offence registered against the present petitioners at its face value is based upon false and concocted story. Shri Ali also submitted that the reasons assigned by the complainant for lodging the report belatedly on the basis of existing facts and circumstances are not acceptable. He submitted that the complainant (respondent No. 2) is fighting against the petitioners since long as he also filed a writ petition highlighting their illegal activities and as such action against them was sought. Therefore, 5 according to Shri Ali, it is virtually unbelievable that the complainant was under any fear or pressure of the petitioners and for that reason he did not lodge any report to the alleged incident narrated in the FIR. Shri Ali also made attempt to convince this Court by drawing attention towards the statements of the witnesses and other circumstances existing in the case and the material produced by the prosecution collected during course of investigation and placed before the court alongwith the charge sheet. Shri Ali also endeavoured to highlight the conduct of the respondent No. 2 before this Court so as to demonstrate that he is not a trustworthy person and is in the habit of making false statements even in the court also. As per Shri Ali, respondent No. 2 is in the praxis of blackmailing the people and he uses to be a witness in number of cases but before the court he turns hostile for the reason best known to him. According to Shri Ali, the complainant is basically a blackmailer and also in the habit of making false complaint against persons for the sake of extracting money from them and therefore, his statement cannot be relied upon.
8. As per Shri Ali, the present petitioners are in fact being harassed by the police for one reason or the other as number of false cases got registered against them. The police is using respondent No. 2 against the petitioners as he is their pocket witness and has been prepared to lodge complaint against the petitioners so that action can be taken against them. Shri Ali pointed out that the petitioners are being unnecessarily harassed by the police and as such the offence registered against them are liable to be quashed. He also placed reliance upon the judgments reported in (2020) SCC Online SC 964-Manoranjan Goswami vs. State of Maharashtra and AIR 1992 SC 604-State of Haryana Vs. Bhajanlal and others.
69. Per contra, Shri Singh appearing for the State submitted that it is not a case in which the Court can quash the FIR exercising extraordinary power provided under Section 482 of Cr.P.C. Shri Singh Submitted that petitioners are the known criminals and number of cases are registered against them and at this stage the testimony of the complainant cannot be tested because he has explained the sufficient cause for lodging the report at the belated stage. He submitted that the allegations made against the petitioners are prima-facie constituting offence against them and it is not a case in which power under Section 482 of Cr.P.C. can be exercised. He submitted that the case is pending before the court, trial is going on and witnesses have been examined. Even in the initial stage of statements, witnesses have stated against the petitioners, therefore only on the basis of submission made by the counsel for the petitioners that on the basis of concocted story of respondent No. 2 a false case got registered against the petitioners is not sufficient to quash the FIR or further proceedings based upon the same.
10. Shri Kochar appearing for the respondent No. 2 submitted that the written complaint made by the respondent No. 2 contending specific allegations against the petitioners, which are not vague and simple in nature. The gravity and magnitude of the crime committed by the petitioners cannot be brushed aside only on the submission made by the learned counsel for the petitioners that respondent No. 2 was in the habit of making false cases against the persons. Shri Kochar has also submitted that the forged stamp paper has also been produced and the statement of stamp vendor has also been recorded under Section 161 of Cr.P.C. and in his statement whatever facts have been disclosed by him are sufficient to demonstrate that the offence has rightly been registered against the petitioners. Prosecution collected sufficient material and 7 evidence to support the fact whether those offences are made out against the petitioners or not. He submitted that the statement of respondent No. 2 under Section 161 Cr.P.C. clearly demonstrates the criminal activities of the petitioners and the manner in which the crime has been committed by them. He submitted that seizure memos have also been filed alongwith the documents filed with the charge sheet, which also demonstrate that there is nothing illegal in registration of offence against the petitioners. The memorandum of the accused persons has also been recorded under Section 27 of the Indian Evidence Act in which they have admitted several facts relating to the alleged offence. According to Shri Kochar, the petitioners have long criminal records in their account indicating that they are the history-sheeter and in the habit of committing crime. Shri Kochar submitted that at the time of entertaining the petition under Section 482 of Cr.P.C. it is not permissible to appreciate the evidence of the parties or to form an opinion about their reliability. According to him, there cannot be a mini-trial and as such no case of quashing of FIR is made out. He placed reliance upon the judgments reported in 2022 SCC Online SC 820-State of Uttar Pradesh and another vs. Akhil Sharda & others, (2022) 2 SCC 129- Mahendra K.C. Vs. State of Karnataka & another, 2023 SCC Online SC 379 - C.B.I. vs. Aryan Singh, (2012) 10 SCC 155 - State of Madhya Pradesh vs. Surendra Kori, 1994 SCC (Cri) 63 - State of Bihar and another vs. K.J.D. Singh and the order passed in MCRC No. 40406/202-Ankit Shrivastava vs. State of M.P.
11. After hearing submission made by the learned counsel for the parties and perusal of record, it is fact-based that the complaint was made by the complainant/respondent No. 2 after lapse of a long time of the alleged incident occurred much prior to the date of lodging of 8 FIR/complaint, but it is also a matter-of-fact that the reasons have also been assigned for lodging the FIR/complaint delayed. There are allegations sufficient to cause offence under which the case is registered. The statements of the witnesses have been recorded under Section 161 Cr.P.C. and they have supported the allegations of FIR. When statements of witnesses have been recorded, they have stated against the petitioners and made statements in support of the allegations contained in the FIR, it is a settled principle of law that the testimony of the witnesses cannot be examined by the court at the time of entertaining petition under Section 482 of Cr.P.C.
12. While dealing with the scope of exercise of power provided under Section 482 Cr.P.C. the Supreme Court in the case of Akhil Sharda (supra) has observed as under:
"28. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (See Pratima (supra); Thom (supra); Rajiv (supra) and Niharika (supra).
29. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High 9 Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
30. It is also required to be noted that even the High Court itself has opined that the allegations are very serious and it requires further investigation and that is why the High Court has directed to conduct the investigation by CB-CID with respect to the FIR No. 227 of 2019. However, while directing the CB-CID to conduct further investigation/investigation, the High Court has restricted the scope of investigation. The High Court has not appreciated and considered the fact that both the FIRs namely FIR Nos. 260 of 2018 and 227 of 2019 can be said to be interconnected and the allegations of a larger conspiracy are required to be investigated. It is alleged that the overall allegations are disappearance of the trucks transporting the beer/contraband goods which are subject to the rules and regulations of the Excise Department and Excise Law."
Further in the case of Mahendra K.C. (supra), the Supreme Court while entertaining the petition under Section 482 of Cr.P.C. seeking quashing of FIR has held as under:
"18. In this backdrop, it is impossible on a judicious purview of the contents of the complaint and the suicide note for a judicial mind to arrive at a conclusion that a case for quashing the FIR had been established. In arriving at that conclusion, the Single Judge has transgressed the well-settled limitations on the exercise of the powers under Section 482 CrPC and has encroached into a territory which is reserved for a criminal trial.
19. The High Court has the power under Section 482 to issue such orders as are necessary to prevent the abuse of legal process or otherwise, to secure the ends of justice. The law on the exercise of power under Section 482 to quash an FIR is well- settled. In State of Orissa v. Saroj Kumar Sahoo, a two-Judge Bench of this Court, observed that :
(SCC pp. 547-48, para 8) 10 "8. ... While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.
It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto."
Emphasis supplied
20. These principles emanate from the decisions of this Court in State of Haryana v. Bhajan Lal and State of M.P. v. Surendra Kori. In Surendra Kori, this Court observed : (Surendra Kori case, SCC p. 163, para 14) "14. The High Court in exercise of its powers under Section 482 CrPC does not function as a court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been 11 collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."
22. Based on the above precedent, the High Court while exercising its power under Section 482 CrPC to quash the FIR instituted against the second respondent-accused should have applied the following two tests : (i) whether the allegations made in the complaint, prima facie constitute an offence; and (ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion that there is sufficient ground to proceed with the complaint. Before proceeding further, it is imperative to briefly discuss the law on the abetment of suicide to determine if a prima facie case under Section 306 IPC has been made out against the respondent-accused."
Similarly in the case of Surendra Kori (supra) the Supreme Court has observed as under:-
"14. The High Court in exercise of its powers under Section 482 CrPC does not function as a court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material."
And in the case of K.J.D. Singh (supra) the Supreme Court in paragraphs 3 and 4 observed as under:-
"3. After going through the record and hearing Mr 12 Goswami, learned senior counsel for the State and Mr Ranjit Kumar, learned counsel for the respondent, we are of the view that it is not a case in which the High Court should have cut short the normal process of the criminal trial. The exercise of the powers by the High Court under Section 482 CrPC to quash the prosecution launched against the respondent at the stage when the trial had not even commenced was not proper. In view of the series of decisions of this Court starting with the judgment in R.P. Kapur case [R.P. Kapur v. State of Punjab, (1960) 3 SCR 388 : AIR 1960 SC 866 : 1960 Cri LJ 1239] up to Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] the inherent power under Section 482 has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. After a review of catena of authorities, Pandian, J. in Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] has deprecated the practice of staying criminal trials and police investigations except in exceptional cases and the present case is certainly not one of these exceptional cases.
4. We are, therefore, of the opinion that the High Court was not justified in quashing the prosecution launched against the respondent for offences under Sections 420, 468, 471 and 120-B IPC. The judgment of the High Court cannot, thus be sustained. This appeal is consequently allowed and the judgment of the High Court is set aside. The case shall proceed to trial expeditiously. "
13. Thus, in view of the legal position as has been dealt with by the Supreme Court on several occasions and relied upon by the respondents, I am also of the opinion that it is not a fit case in which the Court can exercise inherent power of Section 482 of Cr.P.C. for quashing the FIR and also the charge sheet.
14. On several occasions, the Supreme Court has observed that the 13 power of 482 Cr.P.C. should be exercised sparingly to secure the ends of justice. Although the Supreme Court has observed that the High Court under Section 482 Cr.P.C. is having a very wide and plenitude power but that has to be exercise after great caution and the court must be careful to see that its decision in exercise of this power should be based on sound principle and it should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy. The criteria laid down by the Supreme Court for quashing the FIR that if the contents of FIR are considered to be true at their face value, even though offence is not made out, then only it can be quashed, but if there are material collected by the prosecution and it requires re-appreciation of those material and evidence adduced by the prosecution, the said exercise is not proper on the part of the court dealing with the petition under Section 482 of Cr.P.C.. If cognizable offences are made out on the basis of contents of FIR then it cannot be quashed by the High Court.
15. In the present case, not only the allegations contained in the FIR but also in the statements of witnesses recorded under Section 161 of Cr.P.C. are enough to constitute the offences as registered, therefore, at this stage forming an opinion about the testimony of the witnesses or their statements, does not appear to be proper. The trial is going on, the petitioner will get full opportunity to defend their case and if prosecution fails to prove the guilt of the petitioners beyond all reasonable doubt, they will be acquitted, but at the initial stage of the trial it is not proper for this Court to appreciate the evidence and form any opinion about its correctness. I do not find that it is a fit case in which power of Section 482 of Cr.P.C. can be exercised for quashing the 14 FIR. The petition, in my opinion, is without any substance and is hereby dismissed accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
(SANJAY DWIVEDI) JUDGE Raghvendra RAGHVENDRA SHARAN SHUKLA 2023.11.04 11:24:23 +05'30'