Kailash Chand Sharma vs State And Ors.
2005 Latest Caselaw 137 Del

JUDGMENT

Manju Goel, J.

Crl.M.A. 1003/2005

Allowed subject to all just exceptions.

Crl.M.C.312/2005 & Crl.M.A. 1002/2005.

1. On 11th January, 2005 FIR No. 14/2005 was registered at police station Farsh Bazaar which the petitioner seeks to be quashed in the present petition. The complainant Surendra Kumar Sharma claims to be the owner and in possession of property in 476-A, Teliwara, Shahdara, Delhi-32. As per the complaint on 6.1.95, Kailash Chander Sharma, the present petitioner tresspassed into the complainant's portion of the property and to have caused damage by cutting the water pipe, by removing his sign board etc. The petitioner allegedly also stole the wooden table and chairs from the office of the complainant in that part of the property in question. He allegedly also certaining remarks. The FIR was registered under sections 448, 380, 427, 342 IPC.

2. What is contended in this petition is that the complainant/respondent No. 2 has been abusing the process of law by filing false and frivolous cases against the petitioner and that the FIR in question is conspicuously in contradiction with matters on the record of the Court of the Civil Judge and with public knowledge and therefore false and rather absurd. Further, it is stated that certain declarations made by the complainant are in conflict with the previous declaration of the complainant on oath made before the Court of Civil Judge. The petitioner has thereafter gone on state in detail the facts in the civil dispute between the parties and about the proceedings in the civil dispute.

3. The Supreme Court in the case of Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharaful Haque and Anr., has, after considering all previous decisions on this point, has enumerated the situation in which the power u/s 482 of Cr.P.C can be used for quashing an FIR or criminal proceedings. Before narrating those situations, it will be necessary to remind oneself that the inherent powers u/s 482 Cr.P.C. has to be exercised sparingly, carefully with caution and only when such exercise is justified by the test specifically laid down in the section itself which are

(i)to give effect to an order under the code.

(ii)to prevent abuses of the court.

(iii)To otherwise secure the ends of justice.

4. The situations detailed in the case of State of Haryana v. Bhajan Lal 1992 Supplement (1) SCC 335 have been recapitulated in this judgment as the foundation for further analysis of the subject. These are as under:-

"102. (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 uncontroverter 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."

Referring to category 5 mentioned above, the learned counsel for the petitioner says that the complaint against his client is so absurd that the FIR is required to be quashed. Keeping in view the facts alleging the FIR, I cannot agree with the learned counsel for the petitioner that the complaint is so absurd and inherently improbable that on the basis of the complaint no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. That all the petitioners pray here that this court should return a finding that the FIR is false. This does not fall within the scope of Section 482 Cr.P.C. In the very judgment of Zandu Pharmaceutical Ltd.(Supra) the Supreme Court says "when exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an inquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. This is the function of the trial Judge".

5. There is no absurdity in the complaint as such. The learned counsel for the petitioner says that the complaint is absurd because the Civil Court speaks against the complaint and because the complaint is against public knowledge. This is not the type of absurdity which is contemplated in category 5 mentioned above.

6. In respect of a petition for quashing an FIR, the Supreme Court has advised the High Court to be more circumspect and judicious. The judgment says that it is the material collected during investigation that would decide the case of the accused persons in respect of the FIR. The FIR has just been lodged. The State should be given its due chance to investigate and to collect evidence. If the petitioner's story is correct then the police will conclude the investigation by a closure report. Only otherwise a challan will be filed and in that case it will be within the jurisdiction of the Trial Judge to adjudicate upon the truth of the complaint.

7. The Supreme Court has further advised "the section is not an instrument handed over to an accused to short -circuit a prosecution and bring about its sudden death." This is exactly what the petitioner wants and cannot be allowed in view of the advise given by the Supreme Court in the case of Zandu Pharmaceutical Ltd. (Supra). The petition is accordingly dismissed.