Punjab-Haryana High Court
Darshan Singh Sodhi vs State Of Punjab And Anr. on 11 February, 1997
Equivalent citations: 1997CRILJ3221
Author: R.L. Anand
Bench: R.L. Anand
ORDER R.L. Anand, J.
1. Head 1 win tail you lose is an English proverb, which aptly applies to the petitioner-Darshan Singh Sodhi, who is seeking quashment of F.I.R, No. 181 dated 4th December, 1989 under Sections 420/466/468/471, Indian Penal Code, registered at Police Station Division No. 4, Jalandhar, along with all subsequent proceedings arising therefrom.
2. The case set up by the petitioner in the present petition is that he was employed with the Punjab Police in the year 1953 as a Foot Constable. Thereafter the petitioner on the basis of his hard work, honesty and integrity gained promotions and finally he rose to the Gazetted, post of Deputy Superintendent of Police. He retired from service on 30-6-1994 after attaining the age of superannuation at the age of 58 years; so much so, he was granted all consequential benefits, including pension, gratuity, provident fund etc. According to the petitioner, in the year 1953 employment was done by the Punjab Police without any basis whatsoever as not many people were willing to join that department. The petitioner also joined the Police Department and was given appointment on the basis,of his physical fitness, which included medical examination. There was no advertisement by the Department. There was no invitation of applications and, in fact, there was no eligibility criterion regarding age or education. The only difference at that time was that after appointment two platoons were made of the selected candidates one called the literate platoon and the other called the illiterate platoon. Nothing was asked from the petitioner about his date of birth. However, his age in the medical certificate as well as in the service record was mentioned to be 19 years. After recruitment, the petitioner was sent for training at the Police Station, Jah'ankhelan, and after coming back from the training the Department sought certificate regarding educational qualification from those who were literate. The petitioner also produced his School Leaving Certificate, which showed his date of birth as 15-6-1936. As per the School Leaving Certificate his age at the time of recruitment was over 17 years. The petitioner fruther states that due to contradictory dates of birth -- one mentioned in the original record of the Police showing him to be of 19 years and other in the School Leaving Certificate showing his age to be 17 years at the time of the recruitment when the name of the petitioner was recommended for promotion to the post of Head Constable -- an inquiry was marked. The discrepancy was detected in the year 1960. The inquiry was conducted under the supervision of the then Superintendent of Police, by Inspector Prithipal Singh Dhillon. The petitioner was exonerated and the necessary rectification in the service record was then recommended and made by the concerned authorities, and the date of birth of the petitioner in the service record was recorded as 15-6-1936 While scoring off 15-6-1934. Thereafter the petitioner kept serving the Department and was given all due promotions without any hindrance. He was promoted as Inspector in the year 1987. Thereafter at the instance of vested interests, a communication from the office of Director General of Police, Punjab, was sent to the Senior Superintendent of Police on 28-11-1989 which mentioned the difference of dates and sought action against the petitioner for having mis-stated facts at the time of enlistment and getting entry when he was not actually eligible. On the basis of this communication, F.I.R. No. 181 dated 4-12-1989 was registered against the petitioner under Sections 420/471, Indian Penal Code (Annexure P1).
3. The matter was then investigated at a high level. It was first looked into and investigated by D.S.P. Raj Kishan Bedi, and then by D.S.P. Yashpal. The case was thus filed due to lack of any evidence which would show any involvement or liability of the petitioner. The case was then put up untraced by Shri Gurdev Singh, the then S.H.O. Police Station Division No. 4, Jalandhar on 26-4-1990. Even thereafter the matter was thoroughly inquired into by the then S. P. (Detective) Harinder Singh Ghanal and by another Superintendent of Police. Thereafter the petitioner was promoted as D.S.P. on 21-5-1992. Thereafter Shri Dinkar Gupta (respondent No. 2), S. S. P. Jalandhar, became inimical towards the petitioner. The background is the false involvement of the petitioner's wife, son and daughter-in-law at the instance of one Sushma Sharma -- a tenant in the house of petitioner's son. The F.I.R. was registered under political pressure. The petitioner met respondent No. 2 in his office to seek justice. However, respondent No. 2 misbehaved with the petitioner and even went to the extent of abusing him. The petitioner was physically pushed out of the office at the instance of respondent No. 2. The petitioner could not tolerate the insult hurled upon him in the presence of his relatives on 28-2-1996. He served a legal notice to this effect upon respondent No. 2 on 29-2-1996. Thecriminal case registered against the family members of the petitioner stands concluded and the accused therein have been acquitted by the concerned trial Court. Thereafter, the petitioner filed complaint against respondent No. 2 in the Court of Chief Judicial Magistrate, Jalandhar on 20-3-1996 under Sections 355, 500, 504 and 506 of the Indian Penal Code. He filed another suit for the recovery of the damages to the tune of Rs. 2 lacs on 20-3-1996. Thereafter the petitioner was threatened and intimidated by various persons at the instance of respondent No. 2. A complaint was also submitted by the petitioner to the higher authorities, including the Chief Justice of this Court, and to the Governor of Punjab, and the Director General of Police, Punjab. The petitioner alleges that in order to settle the score with the petitioner, respondent No. 2 revived the case set out in the F.I.R. (Annexure P1), and without there being any incriminating evidence against the petitioner, a challan was presented against him on 11 -6-1996, under Sections 420/466/468/471, Indian Penal Code. Thus, according to the petitioner, the challan has been filed for extraneous reasons. The petitioner has sought the quashment of the F.I.R. and the submission of the Police Report on the ground that he never misrepresented the facts to the Department at the time of the joining of the service; that the filing of the challan is an abuse of the process of the Court; that there is an inordinate delay on the part of the respondents in the lodging of the F.I.R. as well as in the submission of the challan and that there is an unexcusable mala fide allegedly committed on behalf of respondent No. 2.
4. Before I incorporate the main pleas of the written statement, I would like to incorporate the contents of that letter on the basis of which the criminal case was registered against the petitioner in order to show the bona fides/mala fies of the petitioner in the fifing of the present petition. Reference to this letter has become necessary because the entire thrust of the petitioner is that the challan has been presented and the investigation has been revived on, the basis of the F.I.R. at the instance of respondent No. 2. This F.I.R. was registered from a letter issued from the office of the Director General of Police, Punjab, Chandigarh dated 28-11-1989. It has been clearly stated by the D.G.P. that Darshan Singh petitioner has stated his age as 19 years at the time of the enlistment and produced a copy of the School Leaving Certificate showing his date of birth as 15-5-1934 in numerical whereas 15th June, 1936 in words. In fact, his actual date of birth was 15-6-1936 and his date of birth was changed from 15-6-1934 to 15-6-1936 with the approval of the Government. As per entries in the character roll, his date of birth was originally recorded as 15-6-1934 and the age as 19 years, and later on the same was changed to 15-6-1936 and his age was recorded as 17 years 3 months and 2 days. A perusal of the medical certificate further reveals that Shri Darshan Singh stated his age 19 years at the time of appointment whereas he was only 17 years 3 months of age. Shri Darshan Singh thus misstated the facts at the time of enlistment and got entry when he was not actually eligible. Directions were given to the S.S.P. by the office of the Director General of Police for the registration of the case under the appropriate sections of law and furtherit was stated in the said letter that the case be entrusted to a senior D.S.P. with the direction that the case be processed and challan submitted in the Court well within time. With that letter photostat copy of the 1 st and 2nd pages of the character roll and the photostat copy of the medical certificate were also attached for the perusal of the office of the S.S.P. After recording the statements of the witnesses and after clubbing the documentary evidence in support of the allegations against the petitioner, challan was presented on 10-6-1996 and it has been mentioned in the report under Section 173, Cr. P.C. that earlier the case was investigated by Shri Raj Kishan Bedi, D.S.P. (City) and thereafter by Shri Yash Pal, D. S. P. (City). At that time no evidence was found and as such on 26-4-1990 an untraced report was prepared. Later on the investigation was done and the documentary evidence was collected Verification of the date of birth was done from the Punjab University From the evidence collected by the Investigating Agency, it appears that offence has been committed by Shri Darshan Sigh accused, who was granted aniticipatory bail on 18-12-19.89, and the evidence against the petitioner was sufficient for submitting the challan. The chalten was presented under Sections 420/466/468/471, Indian Penal Code.
5. Notice of the petition was given to the respondents and reply was filed by respondent No. 2 on his behalf as well as on behalf of respondent No. 1, who has stated that the petitioner seems to have developed personal grudge against him for having ordered investigation in acriminal case F.I.R. No. 181 dated 4-12-1989, which was registered in pursuance of the order of the Director General of Police vide letter dated 28-11-1989. The case is under trial in the Court of Chief Judicial Magistrate, Jalandhar. The petitioner has approached this Court seeking unjustified relief by misrepresented facts. Challan in this case has been filed on 10-6-1996. Therefore, the petition for the quashment of the F.I.R. is not maintainable as the petitioner has alternative remedy of hearing at the time of the consideration for framing charge. On merits respondent No. 2 stated that the petitioner was recorded as Constable in the year 1953 and retired from service on 30-6-1994 in the rank of D.S.P. So far as the service record of the petitioner is concerned, it was highly chequered and blemished record covered with various adverse entries; censures and punishment. The present F.I.R. has been registered against the petitioner on the directions of the Director General of Police when the petitioner was still in service. The petitioner even after retirement from service was served with a show cause notice by the D.G.P. vide letter dated 1 -6-1995 on the charges of having undue benefits of serving the department for two years beyond the actual date of retirement, and having drawn pay and pensionary benefits for the excess period (Annexure R1). According to the respondents, the Constables were used to be recruited in the Punjab Police in accordance with the procedure laid down in Punjab Police Rules, 1934, and a candidate desiring to be recruited as a Constable was required to be of minimum age of 18 years. He was also supposed to clear the physical and medical examination as per Rule 12.15. Under Rule 12:16 a medical certificate was also required regarding fitness. The petitioner also underwent similar procedure for recruitment. After having cleared the physical test, the petitioner was referred for medical examination to the Civil Surgeon, who issued medical certificate declaring the petitioner to be medically fit for recruitment and also verified the age of the petitioner to be 19 years on the date of the examination on the basis of his examination as also on the statement of the petitioner himself. Subsequently, the petitioner in connivance with the dealing hands managed to get attached with the police record one School Leaving Certificate issued by the Principal, Doaba Khalsa High School, Ladowali Raod, Jalandhar, wherein he forged the date of birth from 15-6-1934 in figures with the ulterior motive to show his age to be above 18 years, as mandatorily required, on the date of recruitment. The true facts, according to this respondent, are that in the year 1960 the forgery committed by the petitioner came to light and the departmental inquiry was ordered by the Superintendent of Police, Jalandhar, and after regular inquiry, punishment of two years of approved service of the petitioner was awarded on 11 -7-1961. Even during the course of said inquiry, the petitioner in reply to the charge-sheet, pleaded that the inquiry was illegal as he was not on the rolls of the Department when he made the statement with respect to his date of birth being 15-6-1934 before the Civil Surgeon, Jalandhar and that the proper course was to take action against him on the charges under Sections 420 or 182, I.P.C. The petitioner challenged the punishment awarded by the Superintendent of Police before the D.I.G. of Police by way of appeal, who accepted the appeal and excluded the petitioner from the charge. However, the D.G.P. was not satisfied with the order of the D.I.G. and he exercised his powers of review and called the record of the case and ordered vide letter dated 28-11-1989 for the registration of a criminal case against the petitioner as it was a serious case of misrepresentation of facts, cheating etc. Resullanlly, F.I.R. was registered against the petitioner in Police Division No. 4, Jalandhar. Respondent No. 2 further stated that the petitioner produced a School Leaving Certificate as demanded by the Department after having forged the numerical numbers from' 1936' to '1934' and he wrongly stated his date of birth to be 15-6-1934 on different occasions. This fact is evident from the perusal of the certificate issued by the Controller of Examination, Punjab University, Chandigarh, whereby he appeared in the matriculation examination in English only in the year 1956. The extract of the Gazette published by the Panjab University also indicates that the date of birth of the petitioner is 15-6-1934. The petitioner knowingly and intentionally declared his date of birth as 15-6-1934, in spite of the fact that his actual date of birth was 15-6-1936, and has cheated the Department and has committed various offences which are the subject-matter of the trial, The D.G.P. got registered criminal case against the petitioner on the basis of the act of forgery committed by the petitioner at the time of recruitment as Constable. Had the petitioner disclosed his correct date of birth, the appointing authority would not have recruited him as Constable at that time. The case has been thoroughly investigated and after the completion of the investigation and upon finding sufficient documentary evidence against the petitioner, the challan has been presented. The petitioner, who was posted at Jalandhar at the time of the registration of the case, used his influence with the officers of the Department and managed to get favourable investigation reports, and he also stalled the investigation for more than six years. The earlier Investigating Officers failed to collect and attach the most valuable documentary evidence against the petitioner; so much so, they did not even record the statements of the important witnesses. The petitioner by Using such tactics, managed to prolong the investigation for more than six years. The office of the D.G.P. was not satisfied with the investigation conducted by the earlier officers and respondent No. 2 at the instance of the D.G.P. ordered investigation of the case and entrusted the investigation to Shri Rajinder Singh, D.S.P. The case was referred to the prosecution agency, which found sufficient documentary evidence against the petitioner and recommended for the filing of the challan. Respondent No. 2 categorically states in his defence that he acted in good faith and in bona fide discharge of his duty to the best of his ability, as he was duty bound to do so under the law and the Constitution. He was never inimical against the petitioner, who rather wants to put pressure upon him for undue favour. Explaining the incident dated 28-2-1996., respondent No. 2 has stated that after taking prior appointment, a delegation of Jalandhar Senior Citizens Council, including its President, General Secretary and others, met him in his office. The said delegation made various submissions regarding the case of the petitioner, particularly with regard to a criminal case F.I.R. No. 22 under Sections 452/506/323/34, IPC, dated 28-2-1996, Police Station Division No. 6, Jalandhar. This case was registered against the petitioner's son's wife. The delegation was heard and it was assured that full justice would be done. Respondent No. 2 further stated that he never used filthy language against the petitioner nor he had any occasion to do so. He never misbehaved with the petitioner. It could not be expected on the part of respndent No. 2 to use defamatory remarks against the petitioner. He is a member of the Indian Police Service with outstanding records and with clean and impeccable reputation. The allegations made by the petitioner against him are the result of figment of imagination. The litigation filed by the petitioner, both social and criminal, has been filed with an oblique motive in order to harass respondent No. 2 so that he may not perform his lawful duties. By denying the other averments of the petition, both the respondents prayed for the dismissal of the petition, which is being disposed of with the assistance rendered by Shri S. S. Narula, Advocate, appearing on behalf of the petitioner, and Shri G. S. Gill, Assistant Advocate General, Punjab, who appeared on behalf of the respondents.
6. As I submitted at the very outset of the judgment, the petitioner is relying on a maxim "Head I win Tail you lose", Admittedly, the petitioner joined the service in the year 1953 and as per the Police Rules quoted above, he was supposed to be not less than 18 years of age and not more than 25 years at the time of recruitment. It is also the case of the petitioner that he retired from service on attaining the age of superannuation on 30th June, 1994. Now it is all a matter of calculations. If the date of birth of the petitioner on the date of joining of the service in the year 1953 is taken as 15-6-1936, admittedly, he was less than 18 years and was not eligible. He made a wrong representation not only to the Department but also to the Medical Superintendent that he was above 18 years of age, and thus fulfilled the qualification criterion. If his date of birth is taken as 15-6-1934, the petitioner was bound to retire in the year 1992, i.e., on 30-6-1992 on attaining the age of superannuation on completion of 58 years. In both ways he made a false represention to the Department and this constitutes a cognizable offence, which prima facie has to be inquired into. What appear from the record is that the date of birth of the petitioner was being interpolated from time to time, so as to suit the petitioner and in this regard it may be useful for me to refer to the statement of Shri Tarlok Nath Bali, which was recorded by the Police on 27th December, 1989 under Section 161 of the Code of Criminal Procedure. This witness has categorically stated that at page No. 1 of the character roll, the date of birth of the petitioner was recorded as 4-8-1934 as per the medical certificate. The digits 4-8-1934 have been over-written as 15-6-1934 and thereafter the same have been scored off to mention 15-6-1936 in accordance with the School Leaving Certificate. The entry regarding writing of the date of birth as 15-6-1936 was made on 26-10-1960. This witness further stated before the Investigating Officer that at page 1 of the Character Roll in the column of 'Age at the time of the recruitment', it has been written that the age of the petitioner was 19 years 1 month and 12 days and later on 26-10-1960 this has been corrected to mention the age as 17 years 3 months and 2 days.
7. In the light of the above, the petitioner has no case. He cannot be permitted to blow hot and cold at the same time. The observations made above by this Court are being utilised only to a limited extent to know whether the record of the department prima facie discloses a cognizable offence against the petitioner or not. The petitioner prima facie is aware that he could not enjoy the fruits of the service upto 30-6-1994. Rather he usurped the public office fully knowing that his correct date of birth was never represented to the department. Either he got the job on the basis of misrepresentation and concealment of material facts or he allowed himself on the job on the basis of an entry knowing to be false. All these aspects are supposed to be inquired into by the trial Court itself, which is seized of the matter.
8. While dealing with a petition under Section 482, Cr. P.C. for the quashment of the F.I.R., the basic provisions of law have been incorporated in that section, summary of which can be quoted with advantage. As per these provisions, nothing shall deem to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A balance has to be maintained by the Courts under these provisions that an innocent citizen must not be prosecuted under the garb of some colourable authority by a person in order to wreak vengeance, but at the same time the High Court is also to protect the interest of the State to ensure that nobody is above the law and nobody has the right to cheat the department or the Government by taking the help of those documents which are false to the knowledge of a person and such person also cannot escape the legal punishment by using false documents or by interpolating the record of the department. These allegations are supposed to be inquired into, but at this juncture it cannot be said that the allegations of the State coupled with the documents and the evidence collected by the Investigating Agency are such that no offence is prima facie made out against the petitioner. What are the parameters of the quashing of the F.I.R. and the subsequent proceedings have been laid down by the Hon'ble Supreme Court in State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604, as under : --
(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 F.I.R. 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 Sectioin 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 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 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 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.
(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.
Where allegations in the complaint did constitute a congnizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.
Supplementing the above views, the Hon'ble Supreme Court in State of Bihar v. Sri Rajendra Agrawalla, (1996) 1 JT(SC) 601 : 1996 Cri LJ 1372, further laid down that exercise of inherent power is exceptional and great care must be taken to scuttle the prosecution at its inception. The Hon'ble Supreme Court after referring to the famous judgment Ms. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 7 JT (SC) 299 : 1996 Cri LJ 381 formulated the above opinion. Of course the petitioner could be bailed out from the F.I.R. as well as from the Police report if he was in a position to convince this Court that the allegations made in the complaint or the charge-sheet did not constitute any offence, but equal is the law that if those allegations prima facie disclose an offence and the case is under the gaze of judicial scrutiny, the F.I.R. as well as the judicial process cannot be scuttled or jeopardised or kicked. In this regard the observations of the Hon'ble Supreme Court in State of Bihar v. P. P. Sharma, AIR 1991 SC 1260 : 1991 Cri LJ 1438, are relevant, wherein it was held that the appreciation of evidence is the function of the criminal Courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. The earlier investigation conducted by the Police was prima facie valid and the D.G.P. gave the directions to the S.S.P. Jalandhar for the registration of the case. The investigation was entrusted to a gazetted officer, who collected further evidence in the shape of documents to show that the service record of the petitioner was not straight. He has availed unnecessary benefits either at the joining of the service or by retaining himself into the service for the period when he could not enjoy the benefits of the service and, therefore, the challan was submitted against the petitioner. Para No. 33 of the judgment quoted above is relevant where it has been laid down that "at a stage when the police report under Section 173, Cr. P.C., has been forwarded to the Magistrate after completion of the investigation and the material collected by the investigating officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction.
9. Admittedly, in this case challan has been presented against the petitioner. Therefore, this Court will be slow in the invoking of the extraordinary jurisdiction unless there is a clear-cut finding prima facie that the launching of the prosecution against the petitioner was nothing but an abuse of the process of the law. Learned counsel for the petitioner, of course, has placed reliance on Dr. Sharda Prasad Sinha v. State of Bihar, AIR 1977 SC 1754 : 1977 Cri LJ 1146. But the authority relied upon by the learned counsel for the petitioner can be distinguished on the face of it keeping in view the evidence collected by the Investigating Agency while dealing with the case of the petitioner. Attention of this Court has also been invited to State of West Bengal v. S. N. Basak, AIR 1963 SC 447 : 1963 (1) Cri LJ 341, where it has been laid down that the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by, the exercise of power under Section 439 or under the inherent power of the Court under Section 561-A (Old Code of Criminal Procedure, 1898). Learned counsel for the petitioner has also relied upon R. P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, and submitted that inherent powers of the High Court can be invoked to quash the criminal proceedings at an interlocutory stage. Who disputes this proposition? But before the ratio of this authority is made applicable, the petitioner has to establish that there is no legal evidence against him or that the evidence collected by the Investigating Agency manifestly fails to prove the charge.
10. The second premise made out by the petitioner is that the offence, if any, according to the prosecution, was committed either in the year 1953 or in the year 1969 or in the year 1959 or when it came to the notice of the State in the year 1989 and still the petitioner is being prosecuted in the year 1996 and in these circumstances the F.I.R. and the challan should be quashed. Reliance in this behalf has been placed on Abdul Rehman Antulay v. R. S. Nayak, AIR 1992 SC 1701 : 1992 Cri LJ 2717; and The State v. Maksudan Singh, 1985 Cri LJ 1782 : AIR 19,86 Patina 38 a Full Bench authority of the Patna High Court. I have also the occasion to go througt these authorities. There is no dispute with the proposition of law laid down by the Hon'ble Supreme Court and the Patna High Court which have put emphasis for a speedy and fair trial. The Legislature has not laid down any limitation for the offences of which the petitioner is being charged. The case of the State is that earlier investigation was not honest by the Investigating Officers, who perhaps wanted to oblige the petitioner. The Director General of Police was not even satisfied with the findings of the D.I.G. in the departmental matters and he ordered to his subordinate S.S.P. (respondent No. 2) to register a case against the petitioner in order to bring the truth on the surface. Why a public servant, who has committed an offence should go unpunished. These authorities do not lay down the law that in no circumstance a person on the ground of delay cannot be prosecuted even in those cases where the Code has not laid down any limitation. The reliance of the learned counsel for the petitioner on Srinivas Gopal v. Union Territory of Arunachal, 1988 SCC (Cri) 889 : 1988 Cri LJ 1803 is also misplaced as that was a case where the prosecution was launched after a delay of 91/2 years in an offence under Section 279 read with Section 304-A, Indian Penal Code. The Hon'ble Supreme Court was also interpreting the provisions of Section 46 of the Code of Criminal Procedure in which there is a specific bar. Reliance was also placed on State of U. P. v. R. K. Srivastava, AIR 1989 SC 2222 : 1989 Cri LJ 2301 but this Court has already formulated an opinion that the launching of the prosecution and the registration of the case against the petitioner was not an abuse of the process of the Court. The contents of the report under Section 173, Cr.P.C., and the statement of the witnesses prima facie constitute an offence has has to be inquireed into by the Court of competent jurisdiction.
11. The third and the last premise on which the case of the petitioner is being built is that registration of the F.I.R. and the submission of the challan is merely at the behest of respondent No. 2. Less said the better. Respondent No. 2 never came into picture. It was the D.G.P. who ordered for the registration of the case. The petitioner is unnecessarily making certain allegations against respondent No. 2 to arouse the sympathy of the Court for the present litigation. Rather in the opinion of this Court, a subordinate Officer should show decency while making allegations against his superiors. Levelling of wild and unsubstantiated allegations against a superior does not advance the case of a subordinate either on the legal side or on the moral side. If a subordinate has the tendency to commit an offence, the superior is duty-bound to perform his duty. Rather he should not shirk from his duty, if the law of the Country has been taken for granted by the relations of the petitioner and the matter is being brought to the notice of the higher authority, the latter is supposed to look into those allegations and proceed according to law. The issuance of legal notice, the filing of the criminal complaint and even the filing of the suit for damages cannot be taken note of by this Court as these are the acts of the petitioner perhaps in frustration so as to put pressure upon respondent No. 2 in order to deter him from performing his legal duties under the Police Act.
12. Summing up, the allegations against the petitioner are such which must be inquired into. The case in hand is not that prima facie no Offence is made out or is disclosed from the allegations. The baby cannot be killed in the womb itself. It has to come out. Extraordinary powers under Section 482, Cr. P.C. cannot be invoked to scuttle the law, rather these provisions have been incorporated by the Legislature in its wisdom to advance the administration of justice. The matter is under the judicial scrutiny. In case the petitioner is really innocent, he has the alternative remedy under the provisions of Section 239 of the Code of Criminal Procedure and the Magistrate if thinks necessary and by forming an opinion that the allegations against the petitioner are groundless, has the power to discharge him by passing a speaking order. The petitioner does not want to avail that remedy in the anxiety that he may not be able to face the prosecution. Of course, the Courts are supposed to protect the rights of the citizens so that they may not be harassed unnecessarily, but the law has no sympathy for an alleged offender, whose actions are under scrutiny. This Court further has come to this considered view that there was no inordinate delay so as to exonerate the petitioner from facing the charges. The Court has also formulated a considered opinion that the prosecution of the petitioner is not at the instance of respondent No. 2.
13. In the light of the above discussion, this Court has finally formulated this opinion that it is not a case where the provisions of Section 482, Code of Criminal Procedure, should be applied, especially when the Police Report under Section 173, Code of Criminal Procedure, has been filed. The petition is. hereby dismissed, leaving the parties to bear their own costs.