Madhya Pradesh High Court
Rav Satish Singh Raghuvanshi vs The State Of Madhya Pradesh Thr on 4 December, 2017
1 MCRC No. 23294/2017
(Rav Satish Singh Raghuvanshi & Ors. vs. State of M.P. & Anr.)
Gwalior, Dated : 04.12.2017
Shri V.S. Chauhan, Counsel for the applicants.
Shri R.N. Sharma, Public Prosecutor for the
respondent No.1/State.
This petition under Section 482 of Cr.P.C. has been filed for quashment of the FIR in Crime No.695/2017 registered by Police Station City Kotwali, Ashoknagar District Ashoknagar for offence punishable under Sections 353, 294, 506 Part-II, 34 of IPC on the ground that it suffers from mala fide of the complainant.
It is submitted by the counsel for the applicants that the complainant/respondent No.2 has made a complaint to the police that he is working on the post of Assistant Samiti Manager, Seva Sahkari Maryadit Khejrakala, District Ashoknagar. On 11.10.2017, at about 4:00 PM he was working in the Bank, at that time the applicant No.1 came there and started shouting in the Bank itself. The complainant requested him that since the work is going on, therefore, he should maintain the silence. In reply, the applicant No.1 started abusing him and threatened that he would make him to learn how to discharge his official duties. When the conduct of the applicant No.1 was objected by Samiti Prabandhak Diwansingh Yadav and one Sant Kumar Yadav, then he abused them and by making a call from his mobile he called the applicants No.2 to 4 and thereafter all the four persons started abusing him. It was also mentioned in the complaint that since the applicant No.1 is on inimical terms, therefore, on that issue the applicants had abused the complainant as well as the staff 2 MCRC No. 23294/2017 and had extended the threat to their life. As the complainant was busy in discharging the Bank duties till late night, therefore, the FIR was lodged on the next day.
Challenging the FIR lodged by the complainant, it is submitted by the counsel for the applicants that on 21.1.2017 the applicant No.1 had issued a notice to the complainant/respondent No.2 on the allegation of misappropriation of Rs.6,09,600/- and, therefore, he had abused him and had threatened that the applicant No.1 should leave him otherwise he would be killed. Similarly, on 19.8.2017, the complainant along with the other accused persons had entered inside the house of one Smt. Seema and had abused them and had assaulted her. It was further submitted by the counsel for the applicants that another notice was issued by the applicant No.1 on 24.10.2017 and 25.8.2017 with regard to official irregularities. A show cause notice was also issued by the Collector, Ashoknagar on 17.5.2013. Thus, it is submitted that since certain irregularities have been found against the complainant, therefore, a false FIR has been lodged out of mala fide.
Per contra, it is submitted by the counsel for respondent/State that the Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held as under:-
"120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates 3 MCRC No. 23294/2017 the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
Similarly, by relying on judgment passed by the Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar and Others reported in (2008) 12 SCC 346, it is 4 MCRC No. 23294/2017 submitted by the counsel for the State that where the allegations made in the FIR discloses the commission of cognizable offence, then the mala fide of the complainant looses all importance.
Heard the learned counsel for the parties. The entire submissions made by the counsel for the applicants is the mala fide of the respondent No.2. The mala fide of the complainant is a disputed question of fact which can be adjudicated only after the evidence is recorded. The Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar & Ors. (supra) has held as under:
"9. "8. Exercise of power u/s. 482 of CrPC in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the 5 MCRC No. 23294/2017 principle of "quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). 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 the 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.
9. In R.P. Kapur V/s. State of Punjab, 1960 3 SCR 388 this Court summarised 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 e.g. want of sanction; •(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their 6 MCRC No. 23294/2017 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.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The 7 MCRC No. 23294/2017 illustrative categories indicated by this Court are as follows: (SCC pp.378-79, para 102) '(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 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 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
8 MCRC No. 23294/2017(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."
11. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. 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 being the highest court of a State 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 magnitude and 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 proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by 9 MCRC No. 23294/2017 themselves be the basis for quashing the proceedings".
(See Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995(6) SCC 194) , State of Kerala v. O.C. Kuttan (1999(2) SCC 651), State of U.P. v. O.P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999 (8) SCC 728) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259).
The above position was again reiterated in State of Karnataka v. M. Devendrappa (2002) 3 SCC 89, State of M.P. v. Awadh Kishore Gupta (2004) 1 SCC 691 and State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540, SCC pp.
547-50, paras 8-11."
Thus, it is clear that where the FIR discloses the commission of cognizable offence, then the mala fide of the informant is of secondary importance. It is well established principles of law that this Court while exercising powers under Section 482 of Cr.P.C. cannot adjudicate the disputed questions of fact.
Considering the allegations made against the applicants as well as the submissions made by the applicants it is clear that the quashment of the FIR has been sought on the ground of mala fide of the informant. In the light of judgments passed by the Supreme Court in the cases of Lalita Kumari (supra) as well as Renu Kumari (supra) it is clear that where the complaint contains the allegations of commission of cognizable offence, then it is obligatory on the part of the police to register the FIR and the mala fide of the informant, if any, will be of secondary 10 MCRC No. 23294/2017 importance. Accordingly, this Court is of the considered opinion that the FIR No.695/2017 registered by Police Station City Kotwali, Ashoknagar District Ashoknagar for offence punishable under Sections 353, 294, 506 Part-II, 34 of IPC cannot be quashed because the FIR contains the commission of cognizable offence and, therefore, the mala fide of the complainant is of secondary importance.
Before parting with this order, this Court finds it appropriate to mention that the contentions of the applicants have been considered in the light of the limited scope of powers under Section 482 of Cr.P.C. The Trial Court is directed to proceed strictly in accordance with the evidence which would ultimately come on record.
With aforesaid observations, the petition fails and is hereby dismissed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2017.12.05 16:57:07 +05'30'