Shri Abdul Gaffar Khan vs State Of Chhattisgarh
2023 Latest Caselaw 936 Chatt

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                                                                                             NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                            CRMP No. 826 of 2022
     1. Shri Abdul Gaffar Khan S/o Late Mohammed Akhtar Khan Aged About
        54 Years R/o Ashraf Nagar, Ward No. 8, Takiapara, Tehsil And District
        - Durg, Chhattisgarh., District : Durg, Chhattisgarh

     2. Smt. Muzammil Khan W/o Abdul Gaffar Khan Aged About 50 Years R/
        o Ashraf Nagar, Ward No. 8, Takiapara, Tehsil And District - Durg,
        Chhattisgarh., District : Durg, Chhattisgarh      --- Petitioners.

                                              Versus

     1. State Of Chhattisgarh Through Station House Officer, Thana - Kotwali,
        District - Durg, Chhattisgarh., District : Durg, Chhattisgarh

     2. Shri Mohd. Niyaz Khan S/o Late Mohammed Akhtar Khan Aged About
        60 Years Presently Residing At Near Sahu Kirana Store, In Front Of
        Noor Mirchiwala, Beside Akbar Tempowala, Ward No. 39, Gandhi
        Nagar, Durg, Chhattisgarh., District : Durg, Chhattisgarh

                                                                               --- Respondents.
                                    CAUSE TITLE TAKEN FROM CIS PERIPHERY


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         For Applicant                       :        Mr. Vedant Bhelonde, Adv.
         For Respondent/State                :        Mr. Chitendra Singh, PL.
         For Respondent No.2                 :        Mr. Shrawan Agrawal, Adv.

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Hon'ble Shri Justice Deepak Kumar Tiwari Order On Board 14.02.2023

1. This petition has been filed against the order dated 09.03.2022 passed

by Sessions Judge, Durg in Criminal Revision No.19/2022 upholding the

order dated 13.11.2019 passed by learned Judicial Magistrate First Class,

Durg in Complaint Case No.10011/2019, whereby offence under Sections

447, 323, 294 and 34 of IPC was registered against the petitioners after

taking cognizance and examining the complainant and recording of statement

under Section 200 and 202 of Code of Criminal Procedure (for short

"Cr.P.C.").

2. Facts of the case, in brief, are that the complainant/respondent No.2

and petitioner No.1 are real brothers and were living under the same roof in

different blocks. In the complaint, it has been alleged that on 05.03.2019 the

petitioners have trespassed the block of the complainant and took the

possession of his belongings. When complainant objected the act of the

petitioners, they beat the wife of the complainant and abused them in filthy

languages. Thereafter, respondent No.2/complainant filed complaint under

Section 156 (3) Cr.P.C. before learned Magistrate and learned Magistrate

dismissed the application vide order dated 21.05.2019 and simultaneously

resorted to procedure under Section 200 Cr.P.C. and recorded the statement

of the complainant and his wife Arja Khan (CW-2). Thereafter, learned

Magistrate vide order dated 13.11.2019 took cognizance against the

petitioners and registered offence under Sections 294, 447, 323 read with 34

IPC. Thereafter, the petitioners challenged the same before the Revisional

Court, however, the same was dismissed by the impugned order dated

09.03.2022. Hence, this petition has been filed.

3. Learned counsel for the petitioners would submit that respondent No.2/

complainant has earlier approached the Police Station, City Kotwali Durg in

which vide order dated 08.03.2019 the police did not find any cognizable

offence and issued notice under Section 155 Cr.P.C. to the complainant.

Counsel further submits that in the same incident, City Superintendent of

Police, Durg also enquired the matter and found that the concerned Station

House Officer had properly taken the step for issuing the notice under Section

155 Cr.P.C. Counsel further submits that as the police has already made

certain investigation, so the matter requires to be clubbed under Section 210

of Cr.P.C. He also submits that complainant suppressed the material facts

before learned Magistrate when cognizance was taken. In support of his

contention he placed reliance in the matter of Dilawar Singh Vs. State of

Delhi, (2007) 12 SCC 641 and Kapil Agrawal and Ors Vs. Sanjay Sharma

and Ors, (2021) 5 SCC 524. He lastly submits that considering the aforesaid

aspects impugned order may be set aside and criminal proceedings pending

before learned Magistrate should be quashed.

4. On the other hand, learned State counsel and counsel for respondent

No.2/complainant support the impugned order. However, upon being asked to

counsel for the complainant about the compromise agreement executed

between the parties on 08.03.2021 which has been annexed by the petitioner

in the petition, he submits that he has no instruction in this regard. In reply,

counsel for the petitioners submit that at present complainant has not acted

upon such settlement.

5. Heard learned counsel for the parties and perused the documents

annexed with the petition with utmost circumspection.

6. It is undisputed that police has not taken the cognizance and has

issued notice under Section 155 Cr.P.C. on 08.03.2019, in the internal

enquiry, the City Superintendent of Police also supported the opinion of the

concerned Station House Officer vide its report dated 09.05.2019 so the

respondent No.2/complainant approached the jurisdictional Magistrate by

filing application under Section 156 (3) Cr.P.C. Thereafter, the concerned

Magistrate using its discretionary power did not allow the application under

Section 156 (3) Cr.P.C. however, proceeded for recording the statement

under Section 200 and 202 Cr.P.C. of the complainant and his witnesses and

thereafter took cognizance for the offence punishable under Sections 294,

447, 323 read with Section 34 of IPC which appears to be sustainable.

Further, in the cases relied upon by counsel for the petitioners i.e.

Dilawar Singh (Supra) and Kapil Agrawal (Supra), while the complaint

proceedings were going on simultaneously, the police investigation was also

pending and in that circumstances the said observation was made about the

provision of Section 210 Cr.P.C. which are mandatory in nature but in the

present case no such investigation is pending and the police has already

issued notice under Section 155 Cr.P.C., so the judgments relied upon by

counsel for the petitioners are distinguishable on facts and are not helpful to

the petitioner.

7. In Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and

others reported in 2021 SCC OnLine SC 315 it has been categorically held

that while examining an FIR/complaint, quashing of which is sought, the court

cannot embark upon an enquiry as to the reliability or genuineness or

otherwise of the allegations made in the FIR/complaint and the criminal

proceeding ought not to be scuttled at the initial stage. It has also been

observed that quashing of complaint/FIR should be an exception rather than

an ordinary rule. Now coming back to the present case, the learned

Magistrate after examining the complainant and his witnesses has adopted

procedure in accordance with law and has taken the cognizance and passed

the order which too has been affirmed by revisional Court and the

complainant has specifically alleged that the petitioner has trespassed the

house of the complainant, beaten his wife as also abused them in filthy

languages. So in the considered opinion of this Court, the impugned order or

the proceedings going on before the trial Court does not require any

intervention by this Court at this juncture. Thus this petition under Section 482

Cr.P.C. deserves to be dismissed.

8. Resultantly, this petition is bereft of any merit and the same is hereby

dismissed at motion stage.

Sd/-

(Deepak Kumar Tiwari) Judge Ajay