Himachal Pradesh High Court
Anupama vs State Of Himachal Pradesh And Others on 16 March, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CrMMO No. 265/2016.
Decided on: 16.3.2017
Anupama. ...Petitioner.
Versus
State of Himachal Pradesh and others. ...Respondent. _____________________________________________________________ of Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt Whether approved for reporting? 1 No For the Petitioner: Mr. R.L. Chaudhary, Advocate.
For the Respondent: Ms. Meenakshi Sharma and Mr. Rupinder Thakur, Addl. A.G. with Mr. J.S. Guleria, Asstt. A.G. for respondent Nos. 1 to 3.
Mr. Lakshay Thakur, Advocate for respondent No.4.
_________________________________________________________ Justice Tarlok Singh Chauhan, Judge(oral):
This petition, under section 482 of the Code of Criminal Procedure, seeks quashing of FIR No. 77 of 2015 dated 27.2.2015 registered at Police Station, Sarkaghat, District Mandi, under Section 324 of the Indian Penal Code.1
Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 2
2. It is averred that the petitioner in the year 2014, while serving as Lecturer Sanskrit in Government .
Senior Secondary School, Tihra, was living in a rented accommodation nearby the school. The private respondent on 14.8.2014 at about 9.30 P.M. entered the premises and misbehaved with the petitioner which of compelled her to lodge FIR No. 281 against the petitioner on 15.8.2014 under Sections 452, 354 and rt 504 of the Indian Penal Code. A charge sheet was filed on the basis of the FIR and the matter is now pending in the Court of learned Additional Chief Judicial Magistrate, Sarkaghat.
3. It is further alleged that on 18.2.2015, the respondent again repeated the offence constraining the petitioner to report the matter to the Police on the basis of which FIR No. 58/2015 came to be registered on 19.2.2015 under sections 452, 342, 354, 323 and 506 of the Indian Penal Code. Even in this case, the charges have been framed and now the matter is pending in the aforesaid court.
4. It is then averred that the petitioner was transferred to Government Senior Secondary School, ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 3 Manjeer, Tehsil Salooni, District Chamba and the private respondent has by way of counter-blast filed a .
petition under section 153 of the Code of Criminal Procedure before the Additional Chief Judicial Magistrate, Sarkaghat, who initially directed the police to investigate the matter, on the basis of which FIR No. of 77/2015 has been registered against the petitioner on 27.2.2015 under section 324 of the Indian Penal Code.
5. rt The petitioner has sought quashing of the FIR only on the basis that the same, at the instance of the respondent, is gross abuse of process of law and has been filed as a counter-blast to the two FIRs filed earlier by her and are now pending trial before the Additional Chief Judicial Magistrate, Sarkaghat.
6. The official respondents have filed their reply wherein the factual matrix of the case has not been denied and it has been stated that both the FIRs, i.e. FIR No. 58/2015 and 77/2015 have been investigated by different Investigating Officers and charge sheets have been prepared on the basis of investigation conducted by each of them. In case FIR No. 58/2015 as many as 7 material witnesses were ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 4 examined and in FIR No. 77/2015, the Investigating Officer has examined five material witnesses other than .
the formal witnesses and it was only on the basis of the statements of these witnesses that different charge sheets have been prepared in both the cases. It is lastly averred that the investigations have been conducted in of utmost good faith and in a total unbiased manner, that too, within four corners of law. Therefore, the law rt should be permitted to take its due course.
7. I have heard the learned counsel for the parties and have gone through the record of the case.
8. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made, prima facie, establish the offence. It is for the Court to take into consideration any special features which may appear in a particular case to consider whether it is expedient or in the interest of justice to permit the prosecution to continue. However, the power though wide requires to be exercised with great care and circumspection. The ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 5 Courts have to ensure that its decision in exercise of this power is based on sound legal proposition.
.
9. The scope and ambit of Courts power under section 482 of the Code of Criminal Procedure has been elaborately considered by the Hon'ble Supreme Court in Inder Mohan Goswami vs State Of Uttaranchal, of (2007) 12 SCC 1, wherein it has been held as under:
"[23] This court in a number of cases has laid down the scope and ambit of courts" powers under section 482 rt Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
[24] Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice.
If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
[25] Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 6 used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP [1964] .
AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys [1977] AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an of abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be rt jealously preserved.
[26] In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
[27] The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 7 giving a prima facie decision in a case where all the 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 such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
of [28] This court in State of Karnataka v. L. Muniswamy & Others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the rt conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.
[29] In Chandrapal Singh & Others v. Maharaj Singh & Another (1982) 1 SCC 466, in a landlord and tenant matter where criminal proceedings had been initiated, this Court observed in para 1 at page 467 as under:-
"A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 8 facts when stated are so telling that the further discussion may appear to be superfluous."
[30] The court noticed that the tendency of perjury is .
very much on the increase. Unless the courts come down heavily upon such persons, the whole judicial process would come to ridicule. The court also observed that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court.
of [31] This court in Madhavrao Jiwajirao Scindia & Others v. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under:
rt "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
[32] In State of Haryana & Others v. Bhajan Lal & Others 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 9 the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be .
exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that 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 to myriad kinds of cases wherein such of power should be exercised:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not rt prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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 complaint 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 FIR 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 complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 10 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.
of (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 rt to private and personal grudge.
[33] This court in Janata Dal v. H. S. Chowdhary & Others (1992) 4 SCC 305 observed thus:
"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles."
[34] In G. Sagar Suri & Another v. State of UP & Others (2000) 2 SCC 636, this court observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature.
::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 11[35] This court in Roy V.D. v. State of Kerala (2000) 8 SCC 590 observed thus:-
"18. It is well settled that the power under section .
482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Where criminal proceedings are initiated based on illicit material collected on search and arrest which are per se illegal and vitiate not only a conviction and sentence based on such material but of also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of the process of the court; in such a case not quashing the proceedings would perpetuate abuse of the process of the court resulting in rt great hardship and injustice to the accused. In our opinion, exercise of power under section 482 CrPC to quash proceedings in a case like the one on hand, would indeed secure the ends of justice."
[36] This court in Zandu Pharmaceutical Works Ltd.
& Others v. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:-
"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, 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 complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 12
10. Judged in light of aforesaid exposition of law, it would be noticed that save and except the bald .
allegation of the petitioner that the FIR lodged by the respondent, i.e. FIR No. 77/2015 is only by way of counter-blast and that no substance is made out, would be prejudging the issue at this stage. There is no of material whatsoever placed on the record whereby this Court can even remotely infer much less come to a rt definite conclusion that the FIR is only a counter-blast as alleged or the allegations made in the FIR even appear at their face value accepted in its entirety did not prima facie constitute any offence or make out any case against the petitioner. The allegations in the FIR and other material accompanying the FIR does disclose the commission of cognizable offence and, therefore, the Investigating Agency was fully justified in investigating the matter and presenting the charge sheet before the competent court.
11. Moreover, the allegations in the FIR cannot be considered to be bald or inherently improbable and merely because earlier two FIRs have been lodged at the instance of the petitioner, the subsequent FIR at the ::: Downloaded on - 15/04/2017 22:01:50 :::HCHP 13 instance of the respondent, cannot be said to be attended with mala fide or instituted with ulterior .
motive for taking revenge on the petitioner due to private grudge. These are facts which are required to be established during the course of regular trial.
12. Having said so, I find no merit in the petition of and the same is dismissed.
(Tarlok Singh Chauhan),
rt Judge.
16.3.2017
*awasthi*
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