Shaminder Singh vs State Of U.P. & Another
2012 Latest Caselaw 5290 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved.
 
Court No. - 41
 

 
Case :- APPLICATION U/S 482 No. - 5156 of 2007
 
Petitioner :- Shaminder Singh
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- Kamini Pandey,Ajay Dubey
 
Respondent Counsel :- Govt. Advocate,Rajesh Kumar,S.P. Srivastava
 

 
Hon'ble Sunil Hali,J.

By means of this application under Section 482 Cr.P.C. the applicant has prayed for quashing of the entire proceedings of Complaint Case No. 111 of 2004, under Section 323, 504, 506 IPC, P.S. Etmadadaulla, District Agra, pending in the Court of Ist Addl. Chief Judicial Magistrate, Agra.

This application was entertained and disposed of by this Court at its admission stage vide order dated 13.3.2007. The order is quoted below:

"Hon'ble K.K. Mishra, J

Heard learned counsel for the applicant and learned A.G.A.

The summoning order is of the year 2005. The 482 application is disposed of by providing that in case the applicant appears or is produced before the courts concerned and applies for bail in Complaint Case No. 111 of 2004 under section 323, 504, 506 IPC, P.S. Edmadadaulla, Distt. Agra, his bail prayer shall be dealt with as per the seven Judges' decision of this Court dated 15.10.2004 passed in Criminal Misc. Application N. 2154 of 1995 (Smt. Amarwad and another vs. State of U.P.) reported in 2004 (57) ALR 390.

The non-bailable warrant issued against the applicant shall be kept in abeyance for fifteen days only.

Order dated 13.3.2007."

Feeling aggrieved against the order dated 13.3.2007, applicant choose to prefer Criminal Appeal No. 1436 of 2008 before the Hon'ble Apex Court under its Criminal Appellate Jurisdiction arising out of SLP(Crl.) No. 5646/2007 and the Hon'ble Apex Court considering the aforesaid order and Keeping in view the facts and circumstances of the case, set aside the order passed by this Court and requested this Court to consider and dispose of the appellant/applicant's application under Section 482 of Cr.P.C. on its own merit as expeditiously as possible.

Before adverting to the merits of the case, details of the facts germane to the filing of the present application for adjudicating the controversy involved herein are to be noted, which is hereunder:-

Applicant is presently working as Group General Manager (Telecom) in Indian Railway Catering and Tourism Corporation, New Delhi and the respondent no. 2 was working as Electric Signal Maintainer Grade I in the said office. When the applicant was posted as Senior Divisional, Signal and Telecom Engineer in the Northern Railways an incident is said to have occurred in his chamber on 27.5.2002 at about 11.00 a.m. In the said incident, allegedly, respondent no. 2 came in the office of the applicant and not only abused but also misbehaved with the applicant, with regard to which complaints were made by the applicant against the respondent no. 2 and thereafter FIR was directed to be lodged against him on 27.5.2002 for the offences punishable under Sections 186,323,353 IPC at P.S. Paharganj, New Delhi.

It is further alleged that respondent No.2 was handed over to the Railway Protection Force Staff posted there. Another incident is said to have taken place in the office of Inspector K.K. Sharma and ASI Prem Kumar. Respondent No.2 is said to have been handed over to the Delhi Police. However, no First Information Report was lodged. On 29.5.2002, the applicant having come to know that the RPF Staff have handed over the respondent No.2 to the Delhi Police, wrote a letter to the Deputy Commissioner of Police, Delhi Police, to let him know as to whether any action had been taken on the First Information Report lodged by the RPF officers, so as to enable him to initiate departmental proceeding against him.

It is alleged that as a counter blast the respondent No.2 thereafter lodged a First Information Report at about 2100 hours on 29.5.2002 at Agra malafidely against the applicant two days from the date of incident in Case Crime NO. 276 of 2002, under Sections 323, 504, 506 IPC, P.S. Etmadaulla, District Agra. The date of incident shown in the FIR was 27.5.2002. The allegations levelled in the FIR are that the applicant along with Inspector K.K. Sharma and Prem Kumar of RPF attacked him with a `danda' and threatened to kill him. In the said case, after investigation, final report was submitted by the Agra Police. Thereafter, respondent no. 2 is said to have filed a protest petition against the said final report which was rejected by the court below and the final report was accepted by the learned Addl. Chief Judicial Magistrate, Agra. However, a criminal revision application was filed before the Sessions Judge, Agra by the respondent No.2 which was allowed by an order dated 28.1.2004 directing the learned Magistrate for giving an opportunity to respondent No.2 to adduce evidence in support of his protest petition. Pursuant to said direction, the protest petition was treated as complaint and thereafter respondent No.2 was permitted to examine the witnesses. The court below after recording the statement of the complainant and his witnesses took the cognizance and summoned the applicant to face the trial under Sections 323, 504 and 506 of I.P.C vide order dated 25.4.2005.

It is contended by learned counsel for the applicant that he was neither aware of the proceedings initiated against him nor were the summons issued by the learned Magistrate ever served on him. He came to know about it only when non-bailable warrant of arrest was issued.

It is further contended by learned counsel for the applicant that the complaint filed by the respondent no. 1 was by way of a counter blast just to put counter pressure on the applicant and is therefore malicious and abuse of the process of the Court hence the proceedings pending against him is liable to be quashed. In support of his argument, he has placed reliance on the case of M/s Eicher Tractor Ltd and others Vs Harihar Singh and another, reported in 2009 (64) ACC 296.

On the other hand, learned A.G.A. Submits that the complaint is not a counter blast as alleged but reflects true facts. On the perusal of the complaint and the statement recorded therein prima face cognizable offence is made out as such no interference is sought against the said order.

I have gone through the contents of the complaint and the statements of the witnesses in support of the complaint. Allegations levelled in the complaint are that on 27.5.2002 at about 10 p.m. accused applicant along with A.S.I. Pram Kumar and S.I. K.K. Sharma attacked him with a `danda' and threatened to kill him when he was driving on Scooter in Agra. He was medically examined by the doctor on 28.5.2011 at 12.30 p.m. at Agra. Report of the doctor states that he suffered three contusions on his person and all the injuries are caused by hard and blunt object.

Contention of learned counsel for the applicant is that he is working as Group General Manager (Telecom) at New Delhi while as respondent no. 2 is subordinate and posted in North Railway as Electric Signal Maintainer Grade I. On 27.5.2002, the complainant was posted in the same office when he came and started abusing the applicant and used vulgar words and disturbed the official working and also broke the official property. On happening of this incident, applicant called the Inspector of Railway Protection Force, New Delhi and filed a compliant against the respondent no. 2. Report was entered by the Inspector Incharge of the R.P.F. In G.D. On 27.5.2002 at 15.30 p.m. Thereafter, the inspector K. K. Sharma lodged an FIR against the respondent no. 2 in pursuance of the complaint filed by the applicant dated 27.5.2002 on 5.6.2002 being Case Crime No. 290 of 2002, under Sections 186,323,353 IPC, P.S. Paharganj, New Delhi.

It is further contended that the opposite party no. 2 after occurrence was handed over to the Inspector Railway Protection Force and they took him into custody. This fact is corroborated by the report submitted by the Inspector on 28.5.2002. He remained in police custody till 28.5.2007 and the police also placed on record a certificate issued by the Addl. Divisional Railway Manager, Northern Railway, New Delhi which shows that the applicant was on duty on 27.5.2002. Certificate also mentions that the applicant is responsible for maintenance of all signalling and Telecom equipments over entire Delhi Division which extends from Delhi to Bhatinda, Delhi to Ambala, Delhi to Saharanpur. It also certified that the applicant was present on 27.5.2002 in Delhi.

Case filed by respondent no. 2 at Agra on 29.5.2002 is counter blast to the one filed by the applicant in Delhi. In this behalf, it is stated by him that the opposite party no. 2 lodged the FIR on 29.5.2002 when according to his own version the incident has taken place on 27.5.2002. He also got himself medically examined one day after the incident and obtained frivolous medical certificate from the District Hospital.

All the facts which are stated herein supra clearly go to show that the present case filed against the applicant is only a counter blast and to wreck vengeance against the applicant and the proceedings so initiated are malicious.

Heard learned counsel for the parties and perused the material on record.

While scrutinising the facts of the case enumerated in the complaint it clearly reveals that the opposite party no. 2 was attacked by the applicant along with Inspector K.K. Sharma and one other member of the force at Agra on 27.5.2002 as a result of the assault the complainant suffered injuries which discloses the offence under Section 325 IPC.

The facts which clearly stare at the face are the date of incident i.e. 27.5.2002 in both the cases. It also emerges from the record that the applicant on the said date was in his office when he was attacked by the respondent no. 2 . The G.D. entry entered by the Inspector reveals that respondent no. 2 was in his custody as reflected by his report dated 28/5/2002 which is annexed as Annexure No. 4 to the present application. It also emerges from the report that the scuffle had taken place on 27.5.2002 and some injuries were caused to the complainant and the complainant refused to get medically examined himself in the hospital which is clearly visible from the report submitted by the Inspector K.K. Sharma, to P.S. Paharganj. The trial in the said case is going on before the Court at Delhi.

The question that call for consideration is that is it a fit case where the Court is called upon to quash the proceedings filed before the Court at Agra. It is pertinent to mention here that initially the FIR was lodged by opposite party no. 2 on 29.5.2002 at Agra. Investigation in the matter was conducted and the closure report was filed by the Investigating Officer. Protest petition filed by the respondent no. 2 was also dismissed. It was only on account of the order passed by the revisional Court that protest petition was treated as complaint.

It is trite law that the Court while exercising its jurisdiction under Section 482 of the Code, the 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 an issue which is in the domain of the Trial Court. However, Judicial process, no doubt, should not be an instrument of oppression or needless harassment. 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.

The scope of exercise of power under Section 482 of the Code 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 Hon'ble Apect 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 the rare cases. The illustrative categories indicated by the Hon'ble Apex Court are as follows: -

(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.

(7)Where a criminal proceeding is manifestly attended with mala fides 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.

While examining the import of the judgement this 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 which cannot be seen in their true perspective without sufficient material. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the this Court. Mere allegations of mala fides against the informant are of no consequence unless are supported by facts cannot by itself be the basis for quashing the proceedings. Applying the aforesaid principle in the present case, following things clearly emerges:-

a) that the date of incident in the FIR lodged by the applicant and the complainant is 27.5.2002; time is almost identical. The only difference is the place of occurrence which are 200 kilometres from each other.

b) It is also admitted case that the applicant is posted as Group General Manager (Telecom) in Indian Railway Catering and Tourism Corporation, New Delhi and the respondent no. 2 was working as Electric Signal Maintainer Grade I in the said office. According to the certificate issued by the Addl. Divisional Railway Manager, Northern Railway, New Delhi which shows that the applicant was on duty on 27.5.2002. Applicant has reported the incident on the same day i.e. 27.5.2002 to the Inspector K.K. Sharma, Incharge, Railway Protection Force while as respondent no. 2 has filed the complaint on 29.5.2002. The incident of 27.5.2002 reported to in Delhi was on account of some inquiry conducted by the applicant against the respondent no. 2 which has become the cause for h is misconduct on the said date.

c) That the complainant got himself medically examined on the next date i.e. 28.5.2002 at Agra at 12.30 p.m.

From the aforesaid facts, it clearly emerges that the date of incident in both the cases is 27.5.2002. Both the incident are said to have taken place on 27.5.2002 at two different places and both the versions cannot be correct. In order to justify their own case promptness in reporting the matter would assume importance. Admittedly, respondent no. 2 has filed the complaint two days after the incident which by itself creates a grave doubt regarding the occurrence while as the applicant was prompt in reporting the matter to the Incharge, Inspector Railway Protection Force. It has also come on record the report of the Inspector that the opposite party no. 2 was taken into custody on 27.5.2002 on the asking of present applicant. Report submitted by applicant no. 1 shows that respondent no. 2 was taken into custody on 27.5.2002 and remained till 28.5.2002 coupled with the fact that respondent no. 2 filed a complaint two days after the incident on 27.5.2002 itself goes to show that prima facie occurrence stated to have been happen in Agra on the said date is concocted.

As already stated herein supra cumulative effect of the facts clearly emerge that the complaint filed on 29.5.2002 by the respondent no. 2 was intended to harass the applicant and to put pressure upon him for the alleged misconduct reported against him. Injury statement filed by the complainant with the compliant was one factor which can be taken into consideration in justifying the issuance of process. This aspect is also explained in the FIR filed by the applicant which clearly shows that private respondent no. 2 had suffered injuries on account of the scuffle that took place in Delhi on 27.5.2002. He refused to get examine by the doctor. It appears prima face that injury statement filed by the opposite party no. 2 were on account of scuffle which took place between the opposite party no. 2 and employees of the railway protection force in Delhi. Even though, it appears that on consideration of the allegations in the light of the statement made on oath by the complainant the ingredients of the offence or offences are disclosed however, there is material to show that the complaint is mala fide, frivolous and vexatious. It is not mere allegation that the complaint is malafide but it is supported by material which goes to show that the same has been filed with intent to wreck vengeance against the applicant.

The injuries said to have been sustained by the opposite party no. 2 are fully explained in the FIR filed by the applicant which goes to show that they were suffered on account of scuffle between the respondent no. 2 and some members of the Railway Protection Force.

Other aspect of the matter is that complainant has not been filed against the applicant alone but also against the members of the Railway Protection Force who are said to have caused hurt to the respondent no. 2 at Agra. It is highly improbable that the Group General Manager (Telecom) the applicant and the Inspector would have personally attacked the respondent no. 2 at Agra on the day when there is prima facie proof that they were in Delhi on the said date. It is possible that the complainant on the date of occurrence I.e.27.5.2002 might have been manhandled by the members of the security force for which he had remedy to file a complaint at Delhi but instead he has chosen to go to Agra which clearly reflects malafide on his part.

In view of above, the case in hand squarely falls within the guidelines indicated in category nos. 5 & 7 of Bhajan Lal's Case (Supra). The factual scenario set forth herein above clearly shows that the proceedings were initiated as a counter blast to the proceedings initiated by the applicant, hence the same are liable to be quashed.

The application is allowed. The proceedings of Complaint Case No. 111 of 2004, under Section 323, 504, 506 IPC, P.S. Etmadadaulla, District Agra, pending in the Court of Ist Addl. Chief Judicial Magistrate, Agra are hereby quashed.

Order Date :- 19.10.2012

RKS/