Uma Sharma & Anr vs State
2011 Latest Caselaw 4077 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                      CRL.M.C. No.3518/2005
                                       Crl.M.C.No.545/2008

                                                   Date of Decision : 23.8.2011

CRL.M.C. 3518/2005

          BASANT LAL                              ..... Petitioner
                                       Through Mr.Rajat Aneja, Adv.

                              versus

          THE STATE & ANR                 ..... Respondents

Through Mr. Naveen Sharma, APP Mr.Manish Kohli, Adv. for R-2

CRL.M.C. 545/2008

UMA SHARMA & ANR ..... Petitioners Through Mr.Manish Kohli, Adv.

                              versus

          STATE                                             ..... Respondent
                                       Through Mr.Naveen Sharma, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ?

V.K. SHALI, J. (oral)

1. These are two connected petitions bearing

Crl.M.C.No.3518/05 titled Basant Lal Vs. The State &

Anr. and Crl.M.C. No.545/08 titled Uma Sharma & Anr.

Vs. State. It is clarified that the two parties will be

referred by the names of Basant Lal and Uma Sharma and

not as petitioner or respondents as these are two cases

pertaining to two cross FIRs.

2. So far as Crl.M.C.no.545/08 is concerned, it pertains to FIR

No.38/2004, u/S 323/341/34 IPC registered by P.S. New

Usmanpur on the basis of a complaint lodged by Basant Lal.

It was alleged by him that Chetan Sharma, husband of Uma

Sharma had taken loan by mortgaging his house with the

bank and thus committed the offence of cheating. It is

alleged that Chetan Sharma was threatening Basant Lal to

withdraw the case, failing which he will have to face the

dire consequences. On 10.7.2004, he alleged that he was

coming back to his house, after dropping his children to

school, when he was obstructed in the way by Uma Sharma

wife of Chetan Prakash and her daughter Navraj. Both of

them started saying that if Basant Lal did not withdraw his

case from the Court he will have to face the dire

consequences. It is alleged since he told them that he

would not withdraw the case, he was beaten by both the

daughter and the wife of Chetan Prakash with chappals.

His Sweater and T-shirt was torn and he was threatened to

be implicated in a false case. Because of this incident, FIR

No.38/2004, u/S 323/341/34 IPC was registered by P.S.

New Usmanpur against Uma Sharma and her daughter for

causing simple hurt and wrongful restraint in furtherance

of their common intention.

3. In the other petition bearing Crl.M.C. No.3518/05 Basant

Lal is the petitioner and Uma Sharma is the complainant on

whose behalf FIR no.40/2004, under Section 323/509 IPC

by P.S. Usmanpur has been registered. The allegations

made in the said FIR are that on the date of the incident,

Basant Lal had abused and assaulted Uma Sharma and her

daughter, while she was going to drop her daughter, Navraj

at some school where she was teaching. It is alleged in the

complaint of Uma Sharma that instead of registering an FIR

against Basant Lal, the police had registered a case against

her. Consequently, Uma Sharma had to file an application

before the learned Magistrate because of which an FIR was

registered. Even in respect of this FIR against Bansant Lal,

the police had filed a closure report before the learned

Magistrate. Uma Sharma had filed a protest petition

against the said closure report filed by the police on the

basis of which the learned Magistrate had passed an

impugned order dated 15.1.2005 taking cognizance of the

matter and decided to proceed ahead against Basant Lal.

4. Basant Lal feeling aggrieved by the said summoning order,

assailed the same as well as the registration of the FIR

against him by praying for setting aside the summoning

order as well as for quashing the FIR.

5. The reason for quashing of the aforesaid FIR and the

summoning order is that it has been made with ulterior

motive to harass him while as it is alleged that he is the

actually the aggrieved party.

6. I have heard the learned counsel for the parties and

perused the record.

7. At the outset, it must be said that both these petitions are

raising the disputed question of facts, which cannot be a

ground for quashing of either of the two FIRs, if we see the

ground which has been set up by the petitioner in Crl.M.C.

no.545/2008 filed by Uma Sharma and Ors., it has been

stated since they are ladies and they had actually been

assaulted by Basant Lal, who has previous criminal

background of being involved in number of criminal

matters, therefore, the learned Magistrate has committed a

grave error in taking cognizance of the matter in respect of

FIR No.38/2007 registered against them.

8. Similarly, the other grounds which have been urged in the

petition is that the information given by Basant Lal is not

credible, etc. These grounds are, essentially, matters which

have to be adjudicated in the Trial Court after the parties

are permitted to adduce their respective evidence against

each other.

9. With regard to the other case also, if one looks at the

impugned order dated 15.1.2005, which is assailed by

Basant Lal before this Court, a reading of the same shows

that the police seemed to be in league with the accused in

the said case namely Basant Lal.

10. In FIR no.40/2004 registered against Basant Lal, the

allegations were that he had assaulted Uma Sharma and

her daughter Navraj and passed remarks against them,

despite this, no FIR was registered. It is really very strange

that the police instead of recording the statement of the

victim, had recorded the statement of other witnesses and

arrived at a conclusion that no case against Basant Lal was

made out and chosen to file a cancellation report. This is

what has been rectified by the learned Magistrate by the

impugned order dated 15.1.2005 on the basis of the protest

petition, which was filed by the complainant/Uma Sharma.

Even the FIR was registered on the direction of the Court.

Therefore, the question of cognizance having been taken by

the learned Magistrate after going through the protest

petition was totally reasonable, justified and the

submissions made by Basant Lal that the cognizance has

been taken wrongly is not sustainable. The points which

has been raised in the petition are all disputed question of

facts which can be gone into, once the parties are permitted

to adduce their evidence. Supreme Court in not one but

in number of cases has repeatedly observed that a case

disputed question of facts cannot be a ground for quashing

of the FIR. In case titled State of Haryana & Ors. Vs.

Bhajan Lal & Ors. AIR 1992 SC 604, Supreme Court has

laid down 7 illustrative contingencies for quashing of the

FIR. I do not feel that any of these contingencies can be

availed of by any of the parties in their respective cases.

11. For the reasons mentioned above, I am of the considered

opinion since both these cases essentially hinge on the

evidence involving the disputed question of facts, which is

to be produced by the parties before the trial Court. This

Court cannot be made to embark on an inquiry into all

these aspects for quashing the proceedings.

12. Accordingly, the present petitions are dismissed.

13. Expression of any opinion made hereinbefore may not be

treated as an expression on the merits of the case.

V.K. SHALI, J

AUGUST 23, 2011 RN