Aarti Hejmadi vs State & Anr.
1998 Latest Caselaw 812 Del

ORDER

J.B. Goel, J.

1. This petition under Section 482 of the Code of Criminal Procedure (for short the 'Code') and Article 227 of the Constitution of India seeks for setting aside of summoning order dated 17.2.1996 passed by learned Metropolitan Magistrate, Karkardooma and for quashing of FIR No. 72/95 registered at P.S. Preet Vihar, Delhi under Sections 307/323/34 IPC.

2. Briefly the facts are that the complainant one Suresh Chand had lodged a report at P.S. Preet Vihar, Delhi at about 1100 p.m. on 17/11/94 where this report was registered as DD No. 20A. He has alleged that he along with his two co-villagers Satbir and Rakesh travelled in a bus after visiting the then Agriculture Minister, and alighted from the bus at Shakarpur Chowk and while going to ALT Ghaziabad Bus stop near Coffee Home to catch a bus to Ghaziabad for going to river Ganges, a girl named Aarti Hejmadi hit him from behind with an iron rod, two other persons accompanying her also gave beating to him with iron rods. When his two companions came to resuce him, she had fired at him but the bullet passed over his head. Due to fear of shooting, his two companions went away. It was also alleged that at that time Aarti had told him that "he had slapped me in the bus, to take revenge she would kill him and had also abused him. Some motorists came there and then the said girl went away on a motorcycle along with her two accomplices.

3. After registration of the DD a copy of it was entrusted to ASI Sompal Singh who made inquiries and recorded statements of several persons from the neighbourhood area, but he did not find any truth or substance in the report and case was not registered. However, it appears that the complainant pursued the matter further with higher police officers and then on 6.4.1995 a case FIR No. 72/95 under Sections 307/323/34 IPC was registered.

4. During investigation some more statements from neighbouring area and also of the alleged two companions of the complainant were recorded. The petitioner had also given a written reply dated 28.5.1995 that she was on duty at Safdarjung Hospital at the relevant time supported by the certificate from the doctor Incharge of her Department. The prior incident in which complainant had misbehaved with the petitioner in a bus and in which he was arrested was also taken notice of and a report was submitted to the Magistrate suggesting that there was no truth in the complaint, it was false and bogus and recommending to close the matter. Notice of the report was given to the petitioner and after hearing the Prosecutor and the complainant, the learned M.M. did not agree with the report made by the police and took ognizance for offences under Sections 307/323/506/34 IPC vide his order dated 17.2.1996 and summoned the petitioner for 16.3.1996.

5. The petitioner has filed the present petition for quashing the aforesaid proceedings, being misconceived and mala fide. The proceedings before the trial court have been stayed by this Court.

6. The complainant was imp leaded as respondent No. 2 in these proceedings. Notice was served upon him but he did not put in appearance.

7. I have heard Shri Mohit Mathur, learned counsel for the petitioner and Ms. Seema Gulati for the State.

8. Learned counsel for the petitioner has contended that the police had investigated the case, collected the relevant material and on the basis of such material had recommended that the complaint was false and no case is made out but the learned M.M. has acted illegally and with material irregularity in taking cognizance and summoning the petitioner. He has relied on the material collected by the IO, the background to the case and also certain case law. Whereas learned counsel for the State has contended that the petitioner should have approached the Court concerned before coming to this Court and if she feels that no case is made out she could urge the same before the Trial court instead of coming to this Court invoking extraordinary jurisdiction under Section 482 of the Code of this Court. She has relied on K.M. Mathew & Ors. Vs. State of Kerala .

9. The present is not the only incident which had taken place between the parties. It has a previous history as noticed hereinafter.

10. Report lodged by the complainant at 11.00 p.m. on 17.11.1994 on which DD No. 20A was recorded (Annexure-B is its English translation filed with the Petition) reads as under :-

"At 11.00 p.m. registered and the person mentioned in column No. 2 has made his statement that on 9.6.93 I was travelling in a D.T.C. Bus. In the crowded bus Arti Hejmadi d/o P. Hejmadi who was claiming herself to be from Lady Hardinge Medical College. She was standing in the crowded bus and was holding the overhead rod and she said that you, (Suresh Chand) had put your hand on her hand by which she was holding the rod. At this she punched her elbow into my stomach on which I told that girl to be a misbehaved person. She slapped me, on which I also slapped her. She got the case reported at the Police Station Parliament Street under Section 506 IPC and I was taken into custody. I was acquitted from the case by the Magistrate at the Patiala House Courts. On 19.3.94 that girl had fired on me at the Shahid Bhagat Singh Marg for which I had lodged an FIR at P.S. Mandir Marg, in that case the police officials did not do anything and instead hushed up the case. Today I along with two farmers of my village namely Satbir s/o Jouhari and Rakesh s/o Shiv Charan went to meet Agricultural Minister Sh. Balram Jakhar in relation to the paved passages for the fields of the farmers. Later on return I was going along with these two persons for a dip at the Ganges. After alighting from the bus at Shakarpur Chowk, I was going towards Coffee Home ALT Bus stop to catch a bus to go to ALT Ghaziabad. A girl hit me by the iron rod on my back, and two other persons who were accompanying this girl also beat me with iron rod. When the two persons who were accompanying me tried to rescue me, Arti Hejmadi fired at me from behind, the bullet passed over my head. Out of fear from the shooting, my companions left the spot in order to save their lives. After that Arti told me "You had slapped me in the bus, I will take my revenge by taking your life" and further added "I will kill you today", and abused me. After that when 2-4 motorists came towards us, this girl left the spot on the motorcycle alongwith the two boys. People told me that they have dialled 100. Even after waiting for a long time when the police did not reach, I have come to the police station to lodge the report. Heard the statement which is correct."

11. Time of occurrence is not specifically mentioned in this report but in his subsequent statement made under Section 161 Cr.P.C., the time of occurrence given is 8.00 p.m.

12. SI Sompal Singh had made inquiries in the matter. He has recorded the statements of several persons from neighbouring area on 18.11.1994 and 22.11.1994 who had stated that no such incident had at all taken place at the aforesaid time and place.

13. The complainant was also medically examined at SDM Hospital, Shahdara on 17.11.1994 vide MLC No. 4830/94 (C-72043) and the Doctor had noticed the following injuries :.ls1

"1 Contusion injury (L) Middle of leg

2. Lacerated Injury over

3. C/o loosening of cipper (L) med. incisor tooth. However, clinically no signs of bleeding locally. No fracture clinically.

4. Contusion over (R) shoulder joint.

5. Contusion injury over (R) wrist.

Clinically no Bony Injuries."

The injuries were opined to be simple.

14. If there was pre-planned attack with iron rods by three persons and firearm was actually used, the nature and extent of injuries perhaps would have been more serious.

15. These injuries are not such which could not have been self inflicted or manipulated to create false evidence.

16. After the FIR was registered on 6.4.1995 statements of two companions of the complainant Satbir and Rakesh were recorded who have not supported the complainant in material respects and have made statements at variance to his statement.

17. Statement of some more persons from the neighbouring areas were also recorded who have also denied that any such occurrence had taken place.

18. Before going into the merit of the controversy involved, the legal position about the scope of power of the Magistrate to take cognizance of the complaint and to summon the accused and also the scope of the supervisory jurisdiction of the High Court under Section 482 of the Code and under Article 226/227 of the Constitution will be relevant.

19. The learned Magistrate has taken cognizance under Section 204 of the Code.

 

 20.  The  scope of Section 203 and 204 of the Code has been  considered  by the  Hon'ble  Supreme  Court inter alia in Vadilal  Panchel  Vs.  Dattatrya 
Dulaji,   Chandra Deo Singh Vs. Prokash Chandra Bose,    and Smt. Nagawwa Vs. Veeranna  Shivalingappa  Konjalgi  and others . 
 

 21.  After referring to the aforesaid earlier two decisions, in Nagawwa Vs. Veeranna (supra) it was held that : 
  

      "Thus it may be safely held that in the following cases an  order of  the  Magistrate issuing process against the  accused  can  be quashed or set aside : 
  

(1) where the allegations made in the complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High court can quash proceedings."

22. The scope of jurisdiction of the High court was considered in Madhavrao Jiwaji Rao Scindia and another Vs. Sambhajirao Chandrojirao Angre and others it has been stated as under :-

"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

23. Again in State of Haryana and Others Vs. Ch. Bhajan Lal and others , the scope of power of the High Court for quashing the FIR and the proceedings has been considered and inter alia, in categories No. 3, 5 and 7 it has been held as under :

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;

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;

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."

24. The scope of power under Section 203/204 of the Code is similar to that of under Sections 227/228 of the Code. In the case of Satish Mehra Vs. Delhi Admn. & Anr. , while considering the scope of Section 227, it has been observed as under (para 14) :-

"The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code."

25. The matter is to be seen in the light of this legal position. The petitioner had alleged that at the time of occurrence his two co-villagers Satbir and Rakesh were with him. Their statements have been recorded by the police under Section 161 of the Code.

26. Rakesh in his statement recorded on 20.4.95 under Section 161 Cr.P.C. has stated, so far is relevant, as under (English translation):

"About 4-5 months back I alongwith Suresh and Satbir who are my co-villagers had gone to meet the Agriculture Minister, Shri Balram Jakhar but the Minister did not meet and his P.A. has met at about 3.00 p.m. and after meeting him we got a bus at about 3.05 p.m. and got down from the bus at about 3.15 p.m. at Shakarpur Chowk and proceeded to catch a bus for going to Ghaziabad and at about 3.20 p.m. when we reached near Coffee Home two persons and a girl came on a motor cycle. All the three were armed with Iron rods and all the three gave blows with series on Suresh Chand. I and Satbir tried to rescue him but the said girl fired a shot and I and Satbir ran away and I do not know what happened thereafter and I alongwith Satbir went to Ghaziabad and then reached Anup Shahr at about 8.00 p.m. and Suresh had met us 15/20 days thereafter in the village."

27. Satbir in his statement recorded on 18.4.95 has stated as follows, so far is relevant (English translation) :-

"I am agriculturist and in November 1994 I alongwith Suresh Chand Sharma and another person whose name he did not know had gone to meet the Agriculture Minister and took a DTC bus in which we reached at about 5.00 p.m. at Shakarpur Chowk. We had gone some distance when two boys alongwith a girl came on a motorcycle. One of the two boys got down from his motorcycle and started giving beatings to Suresh Chand with saria when I and my companion tried to rescue him the other boy fired a shot and on this shooting we separated from Suresh who had fallen down. The two boys alongwith that girl went away. We brought Suresh to Jagatpuri, Shahdara at the house of one Balbir Dahiya in a bus upto Shahdara and then in a cycle rickshaw. Suresh was left there and I and Rakesh went to Anup Shahr to take a dip in the Ganga and reached there at about 9.00 p.m. The girl who was accompanying the aforesaid two boys did nothing nor she had uttered any words. I could not recognise that girl but I can identify the two boys".

28. Both these witnesses have not supported the complainant on material aspects including the time of occurrence. According to Rakesh they had got down from the bus at Shakarpur Chowk at about 3.15 p.m. and obviously the occurrence according to him would have taken place at about that time. Satbir on the other hand had stated that they had reached there at about 5.00 p.m. In the complaint the time of occurrence is not mentioned but in subsequent statement under Section 161 of the Code of the complainant, the time of occurrence stated is 8.00 p.m. On his report DD No. 20A was recorded at 11.00 p.m. There is great variance in these three statements about the time of occurrence. Rakesh in his statement has stated that the girl and her two companions were armed with iron rods (saria) and all the three had given saria blows to Suresh Sharma and the said girl had fired a shot at Suresh.

29. Satbir has stated that one of the two boys had given saria blows to Suresh Sharma while the other boy had fired. He does not assign any overt act to the petitioner and does not support the other two. He has further stated that he, Rakesh and Suresh had gone to the house of one Balbir in Jagatpuri, Shahdara and left Suresh there. Both Suresh and Rakesh do not corroborate him that they had gone to the house of Balbir Dahiya in Jagatpuri. These are not minor variations but major contradictions which make their statements untruthful and untrustworthy. They are independent persons. This cast serious doubt on the happening of the occurrence. Public witnesses examined from the neighbouring areas of the place of occurrence have denied that any such incident had taken place.

30. The petitioner had given a written statement dated 28.5.1995 wherein she inter alia stated that she was on 24 hours duty at Safdarjung Hospital from 9.00 a.m. on 17.11.1994 to 9.00 a.m. on 18.11.1994.

31. During investigation a certificate to this effect has been given by Dr. Promila Paul, Paediatrician of Safdarjung Hospital certifying that Dr. Arti Hejmadi was Ist year Junior Resident (P.G.) and was on 24 hours duty for this period.

32. Complainant Suresh Chand in his statement under Section 161 dated 11.4.1995 has admitted that at the complaint of Arti Hejmadi, a FIR No. 206/93 under Section 509 was registered at P.S. Parliament Street regarding his alleged behaviour while both were travelling in a bus and in that case he remained in jail for over two months, at that time he had written letters to Arti Hejmadi from jail requesting her to withdraw her complaint and to get him released to enable him to attend the marriage of his sister which she did not agree. He had earlier also lodged a complaint against her on 19.3.94 at P.S. Mandir Marg against her about shooting by her. That complaint was also found baseless and the matter was dropped. These circumstances have been noticed by learned Metropolitan Magistrate in the summoning order dated 17.2.1996. The learned M.M. has given the following reasons while taking cognizance:

"A notice was issued to the complainant who appeared in person and has opposed the request for cancellation of the case.

I have heard the complainant, Ld. APP and the IO and have gone through the record. The two witnesses who as per the complainant, were alongwith him namely Satbir and Rakesh had described the incident in their statements U/s 161 Cr.P.C. though the spot as told by them is slightly different. Just because of some contradictions regarding the spot of occurrence, the complaint of the accused can not be termed as false. The previous case registered against the complainant can be a motive of false implication as pleaded by the IO however, the same can also be a motive for the attack on the complainant. The story of the complainant being hit by a Iron Rod and his falling down is corroborated by the MLC.

In these circumstances, I don't agree with the opinion of the IO that absolutely no case is made out against the accused.

I take cognizance of offence U/s 307/323/506 IPC read with Sec.34 IPC. The accused Arti Hejmadi has never been arrested by the police, now be summoned for 16.3.96....."

33. The learned Magistrate has not only misread the statements of the complainant and his two witnesses, he has completely ignored the material contradictions.

34. As noticed above the contradictions in the statements of the complainant, Satbir and Rakesh are not insignificant or minor but material and glaring which show that their testimony is wholly unreliable and unworthy of credit which make the story as highly improbable. Their statements clearly show that they are false and procured witnesses.

35. Another circumstance of great importance is that there is nothing on record to show that the petitioner had prior knowledge of the itinerary of the complainant that they had gone to meet the Agriculture Minister, he would catch a bus from there and go to a particular place and at a particular time. He was not a resident in the area of Shakarpur. The petitioner was also not a resident of that area nor she had her place of work near about Krishi Bhawan or near the place of occurrence. She is a doctor and no sane person would have acted in the manner as she is alleged to have been done by the petitioner. And if the petitioner so intended she had full opportunity and in that case there would have been serious consequences if she was having and had used a firearm. The place of occurrence is not a secluded place but a very crowded highway from where it would have been very difficult, if not impossible, to escape with the PCR always on duty. These circumstances clearly show that the allegations made fall in categories No. 5 and 7 noticed in the case of Ch. Bhajan Lal (supra) and also in the categories (1) and (2) noticed in the case of Nagawwa (supra). In these facts and circumstances the discretion exercised by the learned M.M. in summoning the petitioner is capricious and arbitrary and without applying his judicious mind to the facts, circumstances and the material available on record and the special features of the case as brought before him. The circumstances appearing on the record show that the complaint is wholly misconceived, for oblique motives, maliciously instituted with ulterior motive for wrecking the vengeance on the petitioner and with a view to spite her due to personal grudge and mala fides and the same ought not to have been allowed to perpetuate the injustice on the petitioner.

36. The chances of conviction on this material are too bleak. It is not expedient and in the interest of justice to permit the prosecution to continue. It is eminently a gross abuse of the process of the court and it is expedient and in the interest of justice that these proceedings should be quashed.

37. This petition is accordingly allowed. The impugned order dated 17.2.1996 is set aside and the FIR No. 72/95 registered at P.S. Preet Vihar, Delhi under Sections 307/323/34 IPC and the proceedings arising therefrom against the petitioner are hereby quashed.

38. This petition is disposed of.