Punjab-Haryana High Court
Rajiv Bajaj vs Malkiat Kaur And Another on 26 April, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No.M-7346 of 2013(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.M-7346 of 2013(O&M)
Date of Decision:26.04.2013
Rajiv Bajaj .....Petitioner
Versus
Malkiat Kaur and another .....Respondents
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.G.S.Bhatia, Advocate,
for the petitioner.
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MEHINDER SINGH SULLAR , J.(oral) The matrix of the facts and material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the record is that, complainant-Malkiat Kaur wife of Dalbir Singh, respondent No.1(for brevity "the complainant") has filed a criminal complaint(Annexure P-12) against the petitioner-Rajiv Bajaj and his other co-accused, namely, Baljit Singh Sandhu son of Gulzar Singh, Lakhwinder Singh son of Late Ghagwant Singh and Kuldeep Sharma, ASI under Sections 499 and 500 IPC, inter alia, pleading as under:-
"6 That the accused no.3 who is real brother of the complainant in collusion with accused no.2 and 3 prepared agreement to sell to grab the share of the complainant from the property of her father, the accused no.1 & 2 filed collusive suit bearing no.1190 of 7.5.08, against the accused no.3 on the basis of that forged agreement to sell for the collusive decree of specific performance, but the complainant become party in that suit hence the suit was withdrawn by the accused no.1 & 2.
7. That after this for the purpose of the withdrawal of the suit filed by the complainant the accused got filed false FIR No.17 dated 3.2.10 under Sections 420, 406 of IPC at P.S.Bassi Pathana against the complainant and on the basis of that FIR the complainant was arrested by the accused no.4 without any inquiry at the instance of accused no.1 to 3 on the same day i.e. on 3.2.10 and the complainant was produced before the Magistrate in the evening intentionally so the complainant can not get bail hence the complainant was granted bail on the next day i.e. on 4.2.10 and the complainant has to pass the night in the jail on the basis of false FIR, but the complainant refused to withdraw the suit, hence the accused get quashed the FIR with compromise without the consent of the complainant, but the complainant insulted without any fault and remained in jail without committing any offence, the accused no.3 was also knowledge that the complainant did not commit any offence but he knowingly and intentionally arrested the complainant without any inquiry/investigation when the complainant was not signatory to the alleged agreement to sell and did not receive any money from the accused under the alleged agreement to sell but the accused knowingly and intentionally mentioned the name of the complainant in the FIR.CRM No.M-7346 of 2013(O&M) 2
8. That the accused gave a false application to the S.H.O. Police Station Bassi Pathana and to the higher authorities to this effect against the complainant, the police at the instance of accused arrested the complainant in the police station and defamed the complainant and her family in the esteem of the general public and before the respectable of the village and locality.
9. That the arrest of the complainant ruined the life of the complainant as the arrest of an Indian lady in the police station and stay of Indian lady in jail is not on the life of lady the people known and unknown started hating to the complainant and started hitting satires on the character of the complainant and started saying that she was passed night in the police station.
10.That there was dispute of property between the complainant and accused no.3, due to this reasons the accused lodged false FIR against the complainant and the accused no.4 illegally arrested the complainant without any verification of facts from the complainant and from the villagers and from the witnesses of the alleged agreement to sell and later on all the story was found to be false hence all the accused are liable for the defamation caused to the reputation of the complainant.
11. That accused knowingly and intentionally attacked the character of the complainant as the accused wants to get withdrawal of the suit filed by her against her brother.
12. That on 03.02.10 accused came to the police station Bassi Pathana where the accused were also present and the accused also uttered the defamatory words to the complainant before the SHO and other persons present including the husband of the complainant in the police station Bassi Pathana. The accused again uttered defamatory words against the complainant in presence of the several persons including named Kuldeep Singh s/o Harpal Singh, Gurdarshan Singh s/o Basant Singh r/o village Mullanpur Khurd and police officials in the police station Bassi Pathana and levelled false allegations against the complainant.
13. That after hearing the above said defamatory words against the complainant, relatives, friends and family members of the complainant broken ties with the complainant. In-laws of the complainant started hating the complainant due to the acts of the accused and differences arose between the husband of the complainant with the complainant and the villagers started shirking in inviting the complainant at this residence."
2. The case of the complainant further proceeds that the accused gave an application to the SHO, Police Station Bassi Pathana and to the higher authorities against her with false and scandalous allegations. She was arrested at the instance of the accused and the arrest ruined her life.
3. Levelling a variety of allegations and narrating the sequence of events in all, the complainant claimed that the accused have intentionally maligned and defamed her without any cause knowing fully well that the allegations are false with a malafide intention to harm her reputation and character in the society in general and in her family in particular. In the background of these allegations, the complainant filed the private complaint(Annexure P-12) against the accused, in the manner depicted here-in-above.
4. Taking into consideration the preliminary oral as well as the documentary evidence on record Exs.C-1 to C-16, the trial Court summoned the accused to face the trial for the commission of offences CRM No.M-7346 of 2013(O&M) 3 punishable under Sections 499 and 500 IPC, vide impugned summoning order dated 03.10.2012(Annexure P-13), which in substance is as under:-
"The documents shows that in fact the complainant has been booked in the FIR. The arrest of the complainant has remained un-rebutted from the evidence. The copy of the order Ex.C-4 shows that she had approached the Hon'ble High Court for quashing of said FIR. The reply in the form of the affidavit was filed in the High Court by DSP, Bassi Pathana and it was stated that she was not challaned and was placed in column no.2 in the challan as innocent. The police in such case has found and made the submission report before the Hon'ble High Court that the present complainant was innocent. This was the hue and cry of the complainant that the police by registering the case immediately arrested her at the instance of other accused and she had to spent one night in the police station. Resultantly, she had became the victim of situation. The image of the complainant has been lost in the eyes of her friend, relative and in-laws. Resultantly, a prima facie case is made out against all the accused for having committing the offence U/s 500 of IPC. Even if the accused no.4 is police official, it was not his duty to arrest immediately the lady without going through preliminary inquiry. He has also exceeded his jurisdiction. The offence was not so serious that she could be arrested simply by saying of the other party. Accordingly, all the accused are summoned for having committed offences punishable U/s 499/500 IPC for 06.11.2012 on filing of PF/copy of complaint/list of witnesses."
5. Instead of submitting to the jurisdiction of the trial Court, the petitioner-accused has straightway jumped to file the present petition, to quash the impugned complaint(Annexure P-12) and summoning order (Annexure P-13), invoking the provisions of Section 482 Cr.P.C.
6. Sequelly, the case set-up by the petitioner, in brief, insofar as relevant is that, in case the allegations contained in the FIR lodged by the accused against the complainant are believed to be true, as such, even then the same does not amount to defamation by any stretch of imagination. The allegations in the FIR were neither defamatory nor malicious. It was claimed that since he(petitioner) was just trying to safeguard his interest in good faith in order to protect his legal right, so, the registration of the FIR cannot said to be defamatory, as alleged in the impugned complaint(Annexure P-12). On the strength of aforesaid grounds, the petitioner has sought to quash the impugned complaint (Annexure P-12) and summoning order(Annexure P-13), as pointed here- in-above.
7. Having heard the learned counsel for the petitioner, having CRM No.M-7346 of 2013(O&M) 4 gone through the record with his valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant petition in this context.
8. At the very outset, what cannot possibly be disputed here is that the Hon'ble Supreme Court has authoritatively held, in a celebrated judgment in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R.(Criminal) 92, that the criminal prosecution can only be quashed in rarest of rare case at the initial stage as per the following conditions:-
(i) 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.
(ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.
(iii)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.
(iv) Where, the allegations in the F.I.R. 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 S.155(2)of the Code.
(v) 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.
(vi) 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.
(viii)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."
9. Not only that, again the Hon'ble Apex Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R. (Criminal) 183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as under:-
"16. Before addressing the contentions advanced on behalf of the parties, it will be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito CRM No.M-7346 of 2013(O&M) 5 justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
10. Ex facie, the arguments of the learned counsel that since the petitioner was just trying to safeguard his interest in good faith to protect his legal right and registration of the FIR cannot said to be defamatory, so, no indicated offences are made out against him, are neither tenable nor the observations of this Court in case Jit Singh Versus Baljit Kaur, 1999(3) R.C.R.(Criminal) 406, wherein the husband had filed a divorce- petition levelling the allegations of adultery against his wife. The divorce was granted by the Matrimonial Court. It was observed that it was obligatory on the part of the wife to make a separate application before the Matrimonial Court for prosecution of the husband under Section 340 Cr.P.C. for filing the complaint under Section 193 IPC.
11. Likewise, in case Kamlesh Kaur Versus Lakhwinder Singh and another, 2009(4) R.C.R.(Criminal) 663, the petitioner (therein) lodged a criminal case, in which, the respondent was acquitted by the court. Thereafter, the respondent filed a complaint against the petitioner under Section 500 IPC stating that a false case was got registered by the petitioner, which resulted in acquittal and amounts to defamation. On the peculiar facts and in the special circumstances of the indicated cases, the complaint under Section 500 IPC was quashed.
12. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioner in the present controversy, at this initial stage.
13. As is evident from the record that, very specific and direct CRM No.M-7346 of 2013(O&M) 6 allegations are assigned in the complaint that the accused got registered a false FIR No.17 dated 03.02.2010 under Sections 406 and 420 IPC against the complainant in Police Station Bassi Pathana. She was arrested at the instance of the accused on the same day and was intentionally produced before the Magistrate in the evening, so, the complainant could not get the bail. She was granted bail on the next day i.e. on 04.02.2010 and she has to pass the night in jail on the basis of false FIR, containing malicious and defamatory false allegations with a malafide intention to defame her. It has been specifically claimed that levelling false allegations in the FIR, the life of the complainant has been ruined and she was defamed in the society in general and in her family in particular. It is not a matter of dispute that during the course of investigation, the allegations contained in the FIR levelled by the accused against the complainant were found to be false and she was found/declared innocent by the police. The accused did not challenge the findings of innocence of the complainant in the court of law.
14. Meaning thereby, it stands proved on record that the allegations levelled by the accused against the complainant, were found to be false and she was declared innocent by the police. In that eventuality, it cannot possibly be saith at this initial stage that, no offences under Sections 499 and 500 IPC are made out against the accused, as contrary urged on his behalf.
15. The next celebrated contentions of the learned counsel that the allegations levelled against the petitioner are vague and false, there is no cogent evidence against him and other submissions relatable to the CRM No.M-7346 of 2013(O&M) 7 appreciation of evidence(as now sought to be urged on his behalf) would be the moot points to be decided during the course of trial by the trial Court. If all such points, which require determination by the trial Court after appreciation of the evidence on record, are to be decided by this Court in the absence of any substantive evidence and in the garb of petition under Section 482 Cr.P.C., then the sanctity of trial would pale into insignificance and amount to nullify the statutory procedure of trial, as contemplated under the Code of Criminal Procedure, which is not legally permissible.
16. Moreover, it is now well settled principle of law that the High Court should not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it the accusation would not be sustained, are the functions of the trial Judge to do so. The High Court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. Reliance in this connection can be placed upon the judgment of Hon'ble Supreme Court in case U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi and another (2009) 2 SCC 147.
17. Therefore, the Bench mark set out in the aforesaid judgments and essential ingredients for quashing the impugned complaint(Annexure P-12) and summoning order(Annexure P-13) at this initial stage are totally missing in this case. Hence, the contrary arguments of learned counsel for petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances as the ratio of law laid CRM No.M-7346 of 2013(O&M) 8 down in the indicated judgments "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner.
19. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main case, as there is no merit, therefore, the instant petition is hereby dismissed as such.
Needless to mention that nothing observed, here-in-above, would reflect, in any manner, on merits during the trial of the main case, as the same has been so recorded for a limited purpose of deciding the present petition in this relevant context.
April 26, 2013 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No