Ravinder Wadhwa vs State
1996 Latest Caselaw 97 Del

JUDGMENT

Jaspal Singh, J.

(1) Neera Malik was married to Desh Deepak Malik and had been living with him in property bearing number B-9, Lajpat Nagar-III, New Delhi. The said house belonged to her husband and parents-in-law. Soon enough the relations of Neera Malik with her husband and parents-in-law became strained. She alleges that she has been in possession of the first and barsati floors of the said building and that when all attempts of her husband and his parents failed to get vacated the premises in her possession, the property was sold away to Ravinder Wadhwa and Ashok Wadhwa. Her grievance is that even the two gentlemen named above, have not been allowing her to live in peace and have been leaving no stone unturned to harass and threaten her and to make her life miserable. This, according to her, is being done only with a view to make her leave the premises.

(2) It appears that quite a good number of cases are pending between Neera Malik and her husband and parents-in-law and there has been litigation between her and the Wadhwas as well. However, as far the new entrants to the scene are concerned, the bone of contention has principally been the building in question.

(3) The Wadhwas, however, allege that it is Neera Malik who has made their lives miserable by lodging false and frivolous complaints against them. As per them she was never in possession of the first floor of the building and as far as the barsati floor is concerned, they have given an undertaking in the Court that her possession would not be disturbed without due process of law.

 (4) The present petition, however, concerns itself with a complaint lodged with the police by Neera Malik as far back as in July, 1992. On the basis of that report a First Information Report was registered against the Wadhwas on march 13, 1995. The Wadhwas are seeking to get it quashed. And, on May 24, 1995 Hon'ble Mr.Justice J.K.Mehra suspended further investigation.    WHAT was the complaint lodged by Neera Malik?  

 (5) The complaint runs into quite a good number of pages and unfolds a tale of woe. She first speaks of her relations with her husband and his parents and how attempts were made by them to get her evicted, and then of how she was being harassed, tormented and mentally tortured by Ravinder Wadhwa and his hirelings. She says that on July 21, 1992 at 8.40 p.m. Ravinder Wadhwa alongwith four other persons had entered her house and had threatened to dispossess her by use of force. This was followed by the visit of one Sub- Inspector Sat Pal who took her and her children to the police station where she was made to sit till 1.30 a.m. This, however, was not the end of the ordeal. She alleges that soon after her reaching back home, Sub- Inspector Sat Pal Singh alongwith three other persons came there, searched her house till 3 a.m. and when she complained about it to the Station House Officer he turned a deaf ear to the same. As if all this was not enough, the next day at about 10 a.m. she found four employees of the Wadhwas sitting on the stairs of her house and at night they kept on ringing her call bell. The 24th, however, proved to be nightmarish. On that day while she was away to the courts, she was telephonically informed by her son that five persons had thrown out all her articles lying in the first floor after breaking open the door. When she reached back home she found her elder son crying and her house-hold goods kept by her in the first floor lying scattered in the stairs. She says that at that point of time Ravinder Wadhwa was found standing nearby with four other persons and that in the presence of the police officers who had reached the spot, she had received a telephone call from the "accused" extending threats to her. She concluded by saying:    "PLEASE help me. They are giving me threats on telephone. They use (sic) to knock my house's door in the night. I myself and my children are very disturbed. My son is not going to school because they have threatened to kidnap him. Please save our lives from Ravinder Verma and his persons..."   

 (6) The question remains. Should I quash the First Information Report?   

 (7) The learned counsel for the petitioner says I should and in support relies upon State of Haryana v. Bhajan Lal Air 1992 Sc 676. The other side, however, submits that no ground exists for such a relief. In support no authority is cited.   

(8) The Patna High Court in Subhasha Aggarwal v. State of Bihar, 1989 Crl. Lj 1752 has observed that the material subsequently collected during investigation can also be taken note of, apart from the contents of the First Information Report, to arrive at a conclusion as to whether the continuance of investigation would amount to an abuse of power by the police, necessitating interference to secure the ends of justice. But then, in the case before me investigation could not proceed after the registration of the First Information Report because of the order passed by J.K-Mehra, J. to which reference has already been made by me above. Thus, we are left with the complaint of Neera Malik only leading to the registration of the First Information Report. However, the learned counsel for the petitioners referred to a number of documents filed by them in court in support of his submission that Neera Malik is a woman of quarrelsome nature and has been fighting legal battles with her husband as well as the petitioners in order to grab the house, and so also in support of the submission that she, in fact, has never been in possession of the First floor of the building. I was also taken through some of the enquiry reports one of them being of a D.C.P. and the other of an Additional D.C.P. to show that she had been making false allegations to rope in not only her husband, her parents-in-law and the petitioners but some police officers also.

(9) None of the documents referred to above form part of the First Information Report or the investigation of this case.

(10) I do feel that it is not permissible for me, at this stage, to look into the documents placed on the record by the petitioners in support of their defense nor would it be open to me to go into merits in a pre- trial on consideration of the documents so filed. Reference, in support, may be made to the judgment of the Supreme Court in State of Bihar v. P.P.Sharma 1992Supp. (1) SCC222.

(11) The Supreme Court has held in State of Kamataka v. Muniswamy that in the exercise of power under section 482 of the Code of Criminal Procedure, High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. In Dhanalakshmi v. Prasanna Kumar the Supreme Court has observed that inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. Again in Madhavarao v. Sambhajirao , the Supreme Court states that the test to be applied is as to whether the uncontroverted allegations as made prima facie establish the offence. Reference, in this connection may also be made to yet another judgment of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, wherein it was held that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers "accompanying the same", no offence is constituted. It cannot be said that the complaint of Neera Malik leading to the registration of the First Information Report i question does not disclose the commission of any cognizable offence. It cannot also be said at this stage that the complaint made was frivolous, vexatious or oppressive.

(12) One thing more needs to be noticed. In Dr. P. Nalla Thampy Thera v. Union of India ; Union of India v. V.N.Chadha AlR 1993 Sc 1082 and Union of India v. B.R.Bajaj , the Supreme Court has indicated that the power of the police to investigate into a report which discloses the commission of a cognizable offence should not be interfered with by the High Court in exercise of its inherent power under section 482 of the Code. As observed by Ramaswamy, J. in P.P.Sharma's case (supra), except to the extent expressly prohibited by the Code, the Evidence Act and the Constitution, full freedom should be accorded to the investigator to conduct investigation and collect evidence. This being the position, as the matter before me is only at a preliminary stage and as investigation is yet to commence, and further as it is not the case of the petitioners even that the circumscribed limits have been transgressed by the Investigating agency, it would be too much to ask for quashing of the First Information Report more so when, as already noticed by me above, it does disclose commission of cognizable offences. I may, at this stage, profitably refer to the observations of the Supreme Court in State of West Bengal v. Swapan Kumar Guha as they succinctly clinch the issue.

"A First Information Report which does not allege or disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation

...an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It shall also have been noticed, which is sometimes overlooked, that the Privy Council took care to qualify its statement of the law by saying that the judiciary should not interfere with the police in matters which are within their province. It is surely not within the province of the police to investigate into a Report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.....

THE condition precedent to the commencement of investigation under section 157 of the Code is that the Fir must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the Fir prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the Fir does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code.

...WHETHER an offence had been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a'consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that an offence is disclosed, it will be the duty of the court to interfere with any investigation and to stop the same to prevent any kind of uncalled for an unnecessary harassment to an individual."

(13) As "already noticed by me above, the learned counsel for the petitioner had placed reliance on the judgment of the Supreme Court in State of Haryana v. Bhajan Lal wherein the court has enumerated the categories of cases in which the High Court may in exercise of powers under Articles 226 or under section 482 of the Code interfere in proceedings relating to cognizable offences to prevent the abuse of the process of court or otherwise to secure the ends of justice. Out of the categories so enumrated, reference was made to those enumerated as (5) and (7) . They run as under:

(5)Where the allegations made in the Fir the complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach & just conclusion that there is sufficient ground for proceeding against the accused.

(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."

(14) I fail to see as to how the allegations made in the First Information Report in the case before me can be considered to be "so absurd and inherently improbable" that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. The allegations are clear and unambiguous. They disclose the commission of cognizable offences and suffer from no such absurdity or inherent improbability as is referred to by the Supreme Court. Similarly, there is nothing in the First Information Report which may attract category (7) as reproduced above. Investigation cannot be quashed on basis of denial of statement of party against whom commission of offence is alleged. It is not that the First Information Report has been registered without enquiry. My attention was drawn by the learned counsel for the State to the enquiry report of J.C.Sharma, A.C.P. vigilance. Mr.Sharma examined number of witnesses and came to the conclusion that a case of "forcible trespass" had been prima facie made out and that the allegations of harassment, threats, cutting of water and electricity supply by Ravinder Kumar Wadhwa and his family stood "substantiated". The complaint contains serious allegations. Even if, for arguments' sake, they are taken to have been laid on account of any motive to grab the premises, they are not liable to be discarded when they are yet to be tested and weighed after evidence is collected.

(15) The authorities have registered the First Information Report after a long lapse of time. The stay of investigation by this court has further contributed to the delay already caused. Let the authorities proceed with the investigation bearing in mind the following observations of the Supreme Court in State of West Bengal v. Swapan Kumar Guha : "THERE is no such thing like unfettered discretion in the realm of powers defined by statute and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code."

(16) The petition is dismissed.