Gopal Arora vs State & Another
1999 Latest Caselaw 1177 Del

ORDER

J.B. Goel, J.

1. In this petition under Section 482 of the Code of Criminal Procedure (for short the Code) the petitioner Gopal Arora seeks quashing of complaint dated 30.5.1990 against him filed by respondent No. 2, P.D. Mathur pending before the Metropolitan Magistrate (MM) and the order dated 30.10.1992 whereby he (besides two others) has been summoned for offences under Sec- tions 427/342/34 IPC. In the complaint five persons Kishan Kumar (A-1), his son Pankaj, (A-2), Badri Kumar, his brother (A-3), Gopal Arora (A-4) and Naresh Kumar Jindal (A-5) are arrayed as accused. The learned Magistrate has dismissed the complaint against A-2 and A-5 on the ground that no offence is made out against them and also for offence under Section S. 436 IPC.

2. The complainant is a tenant of Kishan Kumar (A1) in premises No.R-18, Naveen Shahdara, Delhi where he is running a factory since 1970. It was alleged that he had made some additions and alterations in the premises at his cost as authorised by and without any objection of the landlord. Later on, on the complaint of A-1 made on 30.12.1981 the Municipal Corporation of Delhi (MCD) on 11.1.1982 demolished major portion of the structure. The landlord also disconnected his light and power supplies for which criminal complaint is pending and the landlord was threatening to evict him from premises. Some other litigation both civil and criminal are also pending. A fire took place in his factory on the night of 29/30-10-1989 and at about 12.00, in the night being informed about it, he reached the spot and found his factory on fire. He wanted to salvage his goods/articles from the premises but accused Gopal Arora and Naresh Kumar Jindal prevented him to open the lock and said "Abhi to siraph sahan jalla hai tum ko bhee iskey saath (?) hoga" and pushed him aside. A-5 had also abused him. Some persons present there demolished part of the premises. He had seen A-1 and A-3 coming out of the house of A-4 at that time. Fire was controlled by the fire brigade. Police reached the spot but they did not record his report and on the following day when he went to the police station for lodging the report. Then he had sent a written complaint to the SHO and other higher police officers on 10.11.1989 but still no action was taken and he filed the present complaint on 30.5.1990. Apparently the allegations made are that the accused persons conspired in putting his factory on fire and thereby caused loss to him and he was prevented from removing his goods.

3. Learned Magistrate in inquiry under Section 202 of the Code of Criminal Procedure (Code) recorded statements of complainant P.W.1, P.W. 2, Hari Kishan, Fire Station Officer, P.W. 3 Dharam Chand Jain, a co-tenant in the premises, P.W.4, H.L. Chaudhary, and P.W. 5 Dharam Pal Chaudhary, two residents of the locality and on the material came to the conclusion that no offence was made out under Section 436 IPC but took cognizance against accused Kishan Kumar (A-1), Badri Kumar (A-3) and Gopal Arora (A-4) only under Section 427/342/34 IPC and summoned them. Complaint against Pankaj (A-2) and Naresh Kumar (A-5) was dismissed. The petitioner Gopal Arora only has filed this petition.

4. I have heard the learned counsel for the parties. Learned counsel for the petitioner has contended that the complaint is mala fide to harass the petitioner, petitioner is not the landlord nor he has any concern with the premises or with the landlord, and he has been falsely implicated. The report dated 10.11.1989 made by the complainant did not implicate him and that was withheld from the learned MM which if considered would not make out any case to proceed against him. The complainant has misused the proc- ess of Court. The complaint and the order summoning him are liable to be quashed. These contentions have been refuted by the learned counsel for the State and the learned Counsel for the complainant.

5. The complainant is a tenant of A-1 in the premises where the fire had taken place. It appears from the complaint that several litigations are going on between the complainant and his landlord, the main grievance is that the landlord is trying to get the premises vacated unlawfully. In para 12, 13 and 15 of the complaint it is alleged that:-

12. "That in pursuance of their evil designs which was translated into a reality all the accused persons hatched a conspiracy to put the premises on fire on Diwali night intervening 29/30.10.1989. The complainant was informed by some one about 12'O Clock in the night that the fire had taken place in his establishment at R-18, Naveen Shahdara, Delhi 32, the complainant immediately rushed to the spot along with the keys of the premises. On reaching there he found that there was fire in the premises, the office side of the premises was not affected by the fire till then. The complainant tried to open the locks of the said portion which was not effected by the fire till then but accused No. 4 Gopal Arora and accused No. 5 Naresh Kumar Jindal whose names the complainant came to know later on and who were also standing there prevented the complainant to open the locks by saying "ABHI TO SIRAPH SAHAN JALLA HAI TUM KO BHEE IS KEY SATH HOGA."

They pushed the complainant to stand aside and the entire Goods and the property including the office records, books meter, machinery, computers, etc, costing more than Five lakhs of rupees were burnt in the presence of the complainant. Accused No. 5 also abused the complainant.

13. Fire Tenders arrived late and by then the entire premises was badly effected by the fire. During the course of fire fight- ing some persons believed to be connected with accused No.1,2 and 3 approached personnel of the fire brigade asking them to demol- ish the road side boundary wall of the premises which they declined since it was not considered necessary. However, some of them themselves started demolishing the same to which the com- plainant resisted but despite that they succeeded to demolish about 15 inches of boundary wall. The police had also come to the spot but did not record the statement of the complainant though they were requested to do so. While the complainant was looking around the place after the fire he saw accused no. 1 and 3 came out from the house of accused No. 4 which confirmed the suspicion of the complainant that the fire was caused by a conspiracy hatched by accused No.1 to 5 while sitting at the house of the accused No. 4.

15. That the complainant had gone to police station the next morning for lodging a report and was told by the duty officer that the report was already there and the matter was being inves- tigated, the complainant expressed that the accused no. 1 to 5 were responsible for the fire in the premises and also told the police the back-ground of the dispute between the accused no. 1 to 3 nad the complainant but they over looked the entire issue and did not register a case or FIR. The complainant sent a letter to the S.H.O., Shahdara Delhi, i, copies of which were sent to the D.C.P. North East Distt., Commissioner of Police, Lt. Gover- nor, etc. on 10th November, 1989 no action seems to have taken in the matter."

6. This complaint was filed on 30.5.1990 i.e. after seven months of the incident. Copy of the report dated 10.11.1989 was not produced before the learned MM and has now been got placed on record now. This complaint typed in single space runs into three pages. This must have been made after due deliberations and with free mind. In this report there is no mention of the names of petitioner (A-4) and Naresh Kumar Jindal (A-5) nor is there men- tion of the words "Abhi to siraph sahan jalla hai tum ko bhee iskey saath jalana hoga" mentioned in the present complaint. There is also no mention that the complainant had seen accused A-1 and A-3 coming out of the house of A-4. There is also no mention that complainant had suspected that ac- cused No. 4 was responsible for this fire. Relevant portion of the report made on 10.11.1989 reads as under :-

"One of the neighbours came to my residence to inform me about the fire and I immediately rushed to fire site with the keys of the premises and by then fire had engulfed a large portion of the premises. Fire Tenders arrived about one hour late and small quantity of water available with the neighbours could not help much to extinguish the fire.

Among the large crowd present some persons prevented me to open steel door shutters and remove my office records including books of accounts and other valuables which were not affected by fire till then.

After some time when the fire was almost under control, those persons started demolishing my road-side boundary wall on the pretext of extinguishing the fire from under the tin-sheets which fell down from the shed above. However, sensing some mala fide intentions I succeeded to stop them after about 15 inches of pucca wall from the top of it was demolished. Later on I came to know that these persons were sent by the landlord to dispossess me.

On 30-10-1989 I went to the Police Station Shahdara to lodge my F.I.R., the Duty Officer informed me that they have already received a report and Shri Naresh Kumar S.I. has been assigned to investigate the incident.

I immediately contacted Shri Naresh Kumar S.I. who wrote down a statement purported to have been made by me and asked me to sign even without allowed me to read which I did sign in good faith on his assurance that justice will be done. When I asked for a copy of my statement he told me that this statement is the part of enquiry and you will get the copy of only the final report.

Nature and intensity of the fire as well as clues from the left over made me believe that this is a case of sabotage by the owners of the property taking the advantage of fire crackers used on Diwali festival."

7. No role has been imputed to A-4 and A-5 in report dated 10.11.1989. The learned MM dismissed the complaint against A-2 and A-5 holding that no case is made out against them. The role imputed to A-4 and A-5 in the complaint is similar with additional circumstance against A-5 that he had also abused the complainant. The imputation if correct would have made out a case of co-conspirators against A-4 and A-5. The order dismissing the complaint against A-5 has not been challenged by the complainant. On the same material no case would be made out against A-4 also and he should not have been summoned on this allegation on the ground of parity in treatment on this part of material.

The other circumstance against A-4 is that:-

"While the complainant was looking around the place after the fire he say accused No. 1 and 3 came out from the house of accused No.4 which confirmed the suspicion of the complainant that the fire was caused by a conspiracy hatched by accused Nos. 1 to 5 while sitting at the house of accused No. 4."

8. In the complaint the address of A-4 is S-7, Naveen Shahdara whereas fire had taken place at R-18, Naveen Shahdara. Obviously two premises are situated in two different blocks R and S. On what basis the complainant says that A-1 and A-3 were seen com ing out of the house of A-4 is not known. In the complaint made to the SHO on 10.11.1989 no such plea has been mentioned. In fact even presence of A-4 is not alleged. If A-4 was actually present and he was a co-conspirator, his name would have been known by the complainant if not on that night at least during next 12 days between the date of occurrence and the date of report and his name would have found mention in the report dated 10.11.1989. The petitioner (A-4) seems to be public figure. In the present petition in paras 1 and 2 it is alleged that he is the Sangh Chalak of Poorvi Delhi, President Hindu Shiksha Samiti Trust running several institutions and Founder Trustee of Shri Bharat Trust, Editor Mother Magazine Hindi etc. In reply the complainant has stated that A-1 and his brother A-3 are having business relations with him and are also active members of Bhartiya Janta Party, East District and closely associated with each other. A-4 thus was not an unknown person to the complainant on the day of occurrence and on 10.11.1989. His name is not mentioned in the complaint dated 10.11.1989 but is named highly belatedly after seven months on 30.5.1990.

9. P.W. 3 Dharam Chand Jain who is the next door neighbour of the com- plainant in the property R-18A who would be a natural witness has not stated that A-4 was present at the time and place of the occurrence or he had played the role alleged by the complainant, though P.W. 4 and P.W. 5 have named him.

10. The question in whether in these circumstances it would be proper and justified that the criminal proceedings should be allowed to proceed or be quashed. The petitioner has not approached the trial court to quash the proceedings. However, learned counsel for the petitioner has contended that this court should exercise inherent powers under Section 482 of the Code in view of misuse of the criminal court process and to meet ends of justice and to save the petitioner from unnecessary harassment.

11. Learned counsel for the respondents have contended that the learned Magistrate on the basis of the material available before him has prima facie found sufficient ground to proceed against the petitioner and in view of this prima facie finding and material, it would not be proper for this court to exercise inherent powers under Section 482 of the Code, the proper course is that the petitioner if he has any special features to say should have approached the learned Magistrate first. Reference has been made to the statements of complainant (P.W.1) and of P.Ws. 4 and 5 recorded in inquiry under Section 202 of the Code. Reliance has been placed on the following case laws:-

12. Nirmaljit Singh Hoon Vs. The State of West Bengal & Ors. , Kewal Krishan Vs. Suraj Bhan and Another, , J.P. Sharma Vs. Vinod Kumar Jain and Others and Mohinder Singh Vs. Gulwant Singh & Ors., .

13. After referring to the relevant case law, the legal position on the scope of the inquiry under Section 202 of the Code and the power of the Magistrate under Sections 203/204 has been reiterated in Mohinder Singh's cases as under :-

"The scope of enquiry under Section 202 is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 of the Code or whether the complaint should be dismissed by resorting to Section 203 of the Code on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. But the enquiry at that stage does not partake the character of a full dress trial which can only take place after process is issued under Section 204 of the Code, calling upon the proposed accused to answer the accusation made against him for adjudging the guilt or otherwise of the said accused person. Further, the question whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of the enquiry contemplated under Section 202 of the Code. To say in other words, during the course of the enquiry under Section 202 of the Code, the enquiry officer has to satisfy himself simply on the evidence adduced by the prosecution whether prima facie case has been made out so as to put the proposed accused on a regular trial and that no detailed enquiry is called for during the course of such enquiry. Vide Vadilal Panchal Vs. Dattaraya Dulaji Ghadigaonker and another and Pramatha Nath Talukdar Vs. Saroj Ranjan."

This is also the legal position laid down in other cases.

14. On the other hand learned counsel for the petitioner has relied on the following case law:-

In Madhavrao Jiwaji Rao Scindia & Anr. Vs. Sambhajirao Chandrojirao Angre and Ors., it was observed 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 contin- ue, 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."

In Punjab National Bank and Others Vs. Surendra Prasad Sinha, it was observed as under:-

"It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment.... There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons im- pleaded then only process would be issued. At that stage the Court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instru- ment in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak per- sonal vengeance."

15. In the case of State of Haryana Vs. Ch. Bhajan Lal, , while giving seven categories as illustrations when court should exercise jurisdiction under Section 482 of the Code to quash complaint/FIR it was laid down that:-

"We give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised and laid down seven categories wherein criminal proceedings could be quashed."

Category 7 reads:-

7. "Where a criminal proceedings is manifestly attended with malafide 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".

16. Recently in M/s. Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Ors., AIR 1998 SC 128 it was laid down as under (para 28):-

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evi- dence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

And further:-

"No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial......"

17. A three Judges Bench in State of Karnataka Vs. L. Muniswamy and others regarding the scope of power under Section 482 had ob- served as under:-

"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature".

18. Considerations justifying the exercise of inherent powers for securing ends of justice naturally would vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the strait-jacket of a rigid formula.

19. Reference of the report dated 10.11.1989 was made in the complaint as well as in the statement of complainant as P.W.1. However, that report was neither produced by the complainant nor got produced by the learned Magis- trate when he passed the order summoning the petitioner. That was a very relevant piece of material and has been withheld by the complainant, obviously, unreasonably to take undue advantage of the process of the court. The petitioner is justified in bringing this circumstance to the notice of this court for the purpose of exercise of power under Section 482 of the Code.

20. The fact remains that the allegations now sought to be made in the present complaint against the petitioner did not find mention in the report dated 10.11.1989. Completely new case is sought to be projected in the complaint. The complaint is highly belated and in the circumstances cannot be said to be truthful and bona fide. The chances of conviction in such circumstances are too bleak and it will cause unnecessary harassment to the petitioner if the proceedings are allowed to proceed against him. In the circumstances, allowing the proceedings to continue against the petitioner would be an abuse of the process of the court and it will be in the inter- est of justice that the prosought to be quashed in exercise of inherent power under Section 482 of the Code. This petition is accordingly allowed. The complaint dated 30.5.1990 and the order of summoning dated 30.10.1992 so far as the present petitioner is concerned are hereby quashed.

Cr. M. (M) 3445/92 and Cr. M. 8229/99 are disposed of accordingly.