Delhi High Court
Munish Jain vs State And Anr. on 21 January, 2008
Author: S Muralidhar
Bench: S Muralidhar
ORDER
S. Muralidhar, J.
1. This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) seeking the quashing of the FIR No. 133/2003 registered at P.S. Vasant Kunj, New Delhi under Sections 506, 341 read with Section 34 IPC and all the proceedings consequent thereto.
2. The FIR resulted in filing of a charge sheet and thereafter the following order framing of charge was passed by the learned Metropolitan Magistrate (MM) on 11th August 2006:
I, Vrinda Kumari, M.M., N. Delhi, do hereby charge you Munish Jain s/o Sh. B.P. Mittal as under:
That on 28.2.03 at about 9.35 p.m. near Masoodpur, Flyover, you along with three other accomplishes in furtherance of your common intention committed criminal intimidation by extended threat to the complainant Ms. Madhulika Jain with intent to kill her and her brother, Rajiv Jain, if she does not withdraw the case FIR No. 440/02 Under Section 498A/306 IPC, P.S. Vasant Kunj wherein you are also one of the accused and complainant is legally entitled to pursue that case being a complainant and as such committed offence punishable Under Section 506/34 IPC and within my cognizance.
Secondly on the said date, time and place, you along with three accomplishes also wrongfully restrained the complainant and as such committed an offence punishable Under Section 341/34 IPC and with my cognizance.
3. Learned counsel for the Petitioner submits that there are numerous illegalities that vitiate the criminal proceedings and that this case calls for interference by this Court in exercise of its powers under Section 482 CrPC. In the first place he points out that the FIR is registered on 5th March, 2003, against the column concerning the date of incident the word yesterday (i.e. 4th March, 2003) at about 9.30 pm is indicated. He points that at a subsequent stage, the prosecution decided to change the date of occurrence from 4th March, 2003 to 28th February, 2003 since it realized that the shops were closed on 4th March, 2003 and the complainant s version was that while she was returning from her shop after closing it she was criminally intimidated by the Petitioners. Secondly, he points that the site plan of the place of occurrence was prepared on 1st March, 2003 i.e. prior to the date of the registration of the FIR on 5th March, 2003. His submission is that it is inconceivable that an investigation was already underway even without the registration of an FIR. Thirdly, he points out that the place of occurrence is shown as two kilometers east from the residence of the complainant whereas the site plan shows it to be near the flyover.
4. According to the learned counsel for the Petitioner, the entire case has been instituted malafide to somehow to prevent confirmation of the bail granted to the petitioner in another case registered by the complainant under Section 306 IPC arising out of the death of the wife of the Petitioner s elder brother, who also happens to be a sister of the complainant. According to him, the brother of the Petitioner and the sister of the complainant were married and living in Dubai for more than 13 years. The complainant s sister was suffering from depression and after treatment of some years she expired in Dubai. She made a dying declaration prior to her death. A criminal case was got registered in Dubai. However, the police there, after carrying out investigations, concluded that no criminal case was made out against the husband. Thereafter, complainant belatedly lodged another case at P.S. Vasant Kunj, New Delhi in connection with death of her sister at Dubai and FIR No. 440/2002 was registered. The Petitioner was arrested. When bail was granted in that case, this complaint was filed as a counterblast. He also points out the notes on file which shows that the Sub- Inspector, Vasant Kunj, New Delhi is stated to have discussed with the SHO for about five days before registering a case. He states that these factors show that the entire case is fabricated.
5. In a response to a query whether the Petitioner has availed all the remedies available to him in accordance with law including challenging the order framing of charge, learned counsel for the Petitioner submits that the Petitioner has elected to file this petition under Section 482 CrPC for quashing of the FIR itself since it is as a result of a fabricated complaint.
6. As regards the petitioner s submission on the FIR, the case having now progressed to the stage of trial, it is futile to refer to individual sentences in the FIR to show the infirmities and inconsistencies therein. These are matters that can easily constitute the subject matter of cross-examination of the IO concerned at the trial. Even the submissions regarding the date of registration of the FIR, the position as regards the place of occurrence as shown in the site plan and other alleged infirmities could be employed at the stage of cross-examination to discredit the prosecution witnesses. That, however, can hardly be done at this stage and in these proceedings under Section 482 CrPC.
7. It was next submitted that even if the facts as narrated in the complaint are taken at their face value, even then no case of wrongful restraint under Section 341 and criminal intimidation within the meaning of Section 503 is made out at all. In the FIR it is stated that according to the complainant the Petitioner and three friends stopped her and threatened her to say that she should stop approaching the police and court otherwise she will have to face dire consequences, which may include killing of her brother and her family. The learned MM by an order dated 10th April 2006 while determining that there are sufficient grounds to charge the accused with offences under Section 341 and 506 read with 34 IPC, has considered the detailed arguments of the petitioner that Section 503 IPC is not attracted in the present case. The learned MM found that there are sufficient materials on record to proceed against the Petitioner under Section 506 IPC.
8. Learned counsel for the Petitioner while reiterating the submissions made before the learned MM sought to place reliance on the several judgments of the High Courts including this Court to show that the facts as narrated fails to bring out even a prima facie case under Section 503 read with Section 506 IPC. These include Surinder Suri v. State of Haryana 1996 (2) RCR 701; Sita Ram v. State 46 [1974] PLR 421; Amitabh Adhar v. NCT of Delhi 2000 Crl.L.J 4772 and Aarti Hejmadi v. State .
9. This court finds that each case turns on its facts. Whether the contents of the FIR and the consequential proceedings fail to make out even a prima facie case and call for interference by this Court under Section 482 CrPC has to be decided on a case by case basis.
10. On a consideration of the facts and circumstances of the present case, this court rejects the submission of the learned counsel for the Petitioner that there is not even a prima facie case made out against the petitioners for being proceeded against for the offences under Sections 506, 341 read with 34 IPC. The submissions made by learned counsel for the Petitioner are matters that require examination at the trial and it would be impermissible for this Court to exercise its powers under Section 482 CrPC to quash the proceedings.
11. Accordingly, this petition is dismissed.
12. It is made clear that the observations made in this judgment will not affect the conclusions that may be arrived at by the trial court at the end of the trial.
