Uttarakhand High Court
Smt. Sabeena vs State Of Uttarakhand And Another on 23 September, 2020
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
C-482 Petition No.175 of 2013
Smt. Sabeena ......Petitioner
Versus
State of Uttarakhand and another ....Respondents
Mr. Zafar Siddiqui, Advocate for the petitioner.
Mr. Lalit Miglani, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J.(Oral) Petitioner seeks quashing of the charge-sheet dated 26th August, 2010, on the basis of which, criminal case no. 681 of 2010, State vs. Qayamuddin was registered in the court of Judicial Magistrate, Ram Nagar, Nainital (for short "the case"). The case is under Sections 225, 186, 353,332 and 504 IPC.
2. Heard learned counsel for the petitioner through video conferencing.
3. In the instant case, FIR was lodged by respondent no.2 on 29th April, 2010. According to it, on 29th April, 2010, a police team visited house of the petitioner and took the co-accused Qayamuddin in the custody, in FIR No. 26 of 2010, under Sections 498-A 323, 504,506 IPC, and ¾ of the Dowry Prohibition Act, 1961. But, meanwhile, the petitioner and other persons started abusing the police persons, they were beaten and Qayamuddin was rescued by them. Thereafter, the petitioner and co-accused bolted the house from inside and started pelting stones on the police party. It is this FIR, in which after inquiry the charge-sheet has been submitted and cognizance was taken, which is basis of the case, which is impugned herein.
4. Learned counsel for the petitioner would submit that in fact, under Sections 498-A IPC, there was a stay from the High Court 2 of Allahabad. Despite that, the police entered in the house of the petitioner and beaten the family members and the petitioner. In order to save themselves of any prosecution, that would have been lodged by the petitioner, it is argued that police falsely foisted this case against the petitioner and others. Learned counsel would argue that in fact the petitioner moved an application to Senior Police Officer requesting for NARCO test on her own expenditure, but it was not allowed and in the counter affidavit at para 13 it is stated by the State that need for NARCO test was not felt during the investigation as there are independent witnesses. But, it is argued that there is no independent witness in the case. Reference has been made to para no. 17 of the counter affidavit also.
5. Learned counsel for the petitioner would also submit that scope of Section 482 of the Code of Criminal Procedure, 1973 ('the Code') is limited. But, petitioner has been seeking for NARCO test. She cannot be terrorised by the Police.
6. On behalf of the State it is argued that whatever arguments have been made they touch the factual aspects of the matter, which can be examined at trial. It is argued that had the petitioner any grudge against the Police, they would have sought CBI investigation.
7. Undoubtedly, the scope of Section 482 of the Code is very limited. Basically, it is invoked to give effect to any order under the Code, or to prevent abuse of process of any Court or to secure the ends of justice. The jurisdiction is much wide but also guided with various principles laid down by the Hon'ble Supreme Court.
8. The law, has been, summed up by the Hon'ble Supreme Court in the case of the Hon'ble Supreme Court in para 12 has observed as hereunder:-
3"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre1 , State of Haryana v. Bhajanlal2, Rupan Deol Bajaj v. Kanwar Pal Singh Gill3, Central Bureau of Investigation v. Duncans Agro Industries Ltd.4, State of Bihar v. Rajendra Agrawalla5, Rajesh Bajaj v. State NCT of Delhi6, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.7 , Hridaya Ranjan Prasad Verma v. State of Bihar8, M. Krishnan v. Vijay Singh9 and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque10. The principles, relevant to our purpose are:-
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
9. The settled law is that if prima facie case is made out, or if the averment discloses commission of any offence, interference in
1. (1988) (1) SCC 692 : 1988 SCC (Cri) 234
2. 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426
3. (1995) 6 SCC 194 : 1995 SCC (Cri) 1059
4. (1996) 5 SCC 591 : 1996 SCC (Cri) 1045
5. (1996) 8 SCC 164 : 1996 SCC (Cri) 628
6. 1999 (3) SCC 259 : 1999 SCC (Cri) 401
7. (2000) 3 SCC 269 : 2000 SCC (Cri) 615
8. (2000) 4 SCC 168 : 2000 SCC (Cri) 786
9. (2001) 8 SCC 645 : 2002 SCC (Cri) 19
10. (2005) 1 SCC 122 : 2005 SCC (Cri) 283 4 these proceedings should not be made. A legitimate prosecution should not be stopped at its threshold.
10. Police did not conduct the NARCO test. It is true. The charge-sheet has been filed as annexure-1 to the petition. All the witnesses are police officers/officials. But, it does not make a case of interference in these proceedings. It is categorical case in the FIR that Police party had arrested Qayamuddin when he was rescued by the petitioner and others; stones were pelted on the police party. Its veracity has to be tested. Along with the counter affidavit, statements of the witnesses have been enclosed, who have stated about the incident. The question is whether the contents of the FIR are credible or whether the statements of the witnesses are trustworthy. Investigating officer has found that contents of FIR are credible. The FIR itself discloses commission of offences. Now, the credibility would be tested during trial. This court is of the view that all the arguments which have been put forth before this Court definitely touches on the defences of the petitioner which are available to her at trial.
11. On behalf of the petitioner, it is submitted that the petitioner is an old pardanaseeen lady, therefore, this facts should be considered at the time of disposal of the bail application.
12. Undoubtedly, the old age and other factors would definitely be considered as and when, any bail application is moved by the petitioner.
13. Therefore, no interference is warranted and the petition deserves to be dismissed.
14. The petition is dismissed.
(Ravindra Maithani, J.) 23.09.2020 Kaushal