Rajan Prakash & Ors vs Delhi Police Through Its ...
2014 Latest Caselaw 1714 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Date of decision: March 31, 2014

+     W.P.(CRL) 2079/2013

      RAJAN PRAKASH & ORS                        ..... Petitioners
                  Through: Mr. Arvind Nigam, Sr. Advocate with
                           Mr. Ramesh K. Mishra & Mr. Rishi
                           Kumar, Adv.

                         versus

      DELHI POLICE THROUGH ITS COMMISSIONER & ANR
                                                 ..... Respondents
                    Through: Mr. Rajesh Mahajan, ASC for State.
                             ASI Pradeep Kumar, P.S. AmanVihar.

      CORAM:
      HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

1. This is a petition under Article 226 of the Constitution of India wherein prayer is made for quashing of FIR No.614/2013 under Section 186/353/332/308/506/34 IPC registered at P.S. Aman Vihar against the petitioners.

2. Petitioner No.1 was a candidate of Aam Aadmi Party (AAP) in the Assembly Election of 2013 in Delhi. Petitioner No.2 is a retired Army Captain and volunteer of the aforesaid party. Petitioner No.3 is also a volunteer of the aforesaid party. Petitioners have alleged that they have been falsely implicated in the aforesaid FIR. It is alleged that on 4.12.2013 during the Constituent Assembly Election, petitioner No.1 got an

information at about 5.15 p.m. that rampant bogus voting was taking place at the polling station at PSM Public School, Pratap Vihar, Kirari. It is alleged that a supporter of BSP, namely, Ashu was quarrelling with a supporter of BJP, namely, Mahender on the issue of casting bogus votes. The petitioner No.1 along with petitioner No.3 went to the aforesaid polling station but they were not allowed to enter. Thereupon petitioner No.1 and 3 started going for their nearby local office. While they were on the way they saw police was taking away petitioner No.2 who also was being beaten by police officials mercilessly. The petitioner No.1 and 3 followed the police van and went to Aman Vihar Police Station. After reaching police station and on inquiries being made, it was revealed that the petitioner No.2 was booked under Section 107/151 of Cr.P.C. It was informed that petitioner No.2 would be released by the ACP by tomorrow i.e. 5.12.2013. It is alleged that on disclosing their identity, petitioner No.1 and 3 were also detained in the police station for about an hour. It is further alleged that from there petitioner No.2 was transferred to Begampur Police Station in police custody.

3. It is alleged that on 4.12.2013 ASI Pradeep Kumar submitted kalandra under Section 107/151 Cr.P.C. to Special Executive Magistrate against the petitioner No.2 and two more persons to maintain peace. On 5.12.2013 petitioner No.2 was granted bail. It is alleged that there is no whisper of any offence in the kalandra as is alleged in FIR No.614/2013 P.S. Aman Vihar registered against petitioners. It is alleged that petitioner had come to know of registration of aforesaid FIR on 5.12.2013 at about 2.30 p.m.

4. Learned senior counsel appearing for the petitioners has submitted that the aforesaid FIR is an abuse of the process of law by the police officials. It is submitted that there is an inexplicable delay in lodging the FIR. As per FIR, the alleged occurrence is dated 4.12.2013 at 5.25 p.m. in the presence of senior police officials such as ACP, SHO and several other police personnel. Despite that, the FIR was lodged at 2.30 p.m. on 5.12.2013. The reasoning given for delay is that Constable Nawab Ali i.e. the injured was not in a fit state of health for making statement. It is submitted that the reason given is not believable. The FIR could have been registered immediately after the alleged incident even if injured was unfit. It is submitted that it is not believable that the petitioner No.2 would stand at the same place after injuring police constable as is alleged in the FIR and would get arrested only in kalandra under Section 107/151 Cr.P.C. It is further submitted that in the kalandra there are no allegations of alleged occurrence against the petitioners as are there in the FIR, wherein the incident recorded is alleged to have occurred at the same place and time. It is further submitted that it is unbelievable that petitioner No.1 and 3 would follow the police van wherein petitioner No.2 was taken and would visit Police Station Aman Vihar where petitioner No.2 was taken after injuring the police constable.

5. On the other hand, learned APP has submitted that seeking quashing of the FIR at the nascent stage is premature. Learned APP submits that when a FIR 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 submitted that in the present case reading the FIR clear offence is made out against the petitioners. It is submitted that

it is not only the FIR which is to be seen but the other material collected during the investigation has also to be seen. It is further submitted that the pleas raised by the learned senior counsel for the petitioners are only in the nature of defences and the same can't be seen at this stage. Learned APP further submits that there is no inconsistency between the kalandra and the FIR as is alleged, as both pertain to different incidents having occurred at different points of time. It is submitted that the accused persons in the kalandra and FIR in question are different except one i.e. petitioner No.2 who is involved in both the cases. Learned APP has further submitted that the incident alleged in the kalandra had occurred later in time than the offence alleged in FIR in question.

6. I have heard learned senior counsel appearing for the petitioner as well as learned APP appearing for the State and gone through the material on record.

7. The incident alleged in the FIR had occurred at 5.25 p.m. on 4.12.2013 at public place on the road opposite PSM Public School, Pratap Vihar. Perusal of DD No.45B recorded at P.S. Aman Vihar at 5.30 p.m. shows that an information was received about people having been collected and Nare Baze going on at PSM Public School near Gole Market. The copy of same was given to ASI Pradeep Kumar who had gone at aforesaid place with Constable Anoop. On reaching there, he found SHO and ACP were already present and shouting was going on and found 3 persons i.e. petitioner No.2 and two more persons, namely, Ashu and Mahender were shouting angrily at each other as the petitioner No.2 was making allegations against them on the bogus casting of vote. The aforesaid persons were booked by him vide aforesaid kalandra after 5.30 p.m. There is a mention

of Constable Nawab Ali also in the kalandra who is the injured of FIR in question having been taken to SGM Hospital. The FIR in question prima facie shows that the alleged incident had taken place at 5.25 p.m. and the statement of injured was recorded on the next day i.e. 5.12.2013 when injured after being declared fit for making statement had given his statement at about 2.30 p.m. The allegations alleged in the FIR prima facie find support from MLC which shows lacerated wound on the parital region of Constable Nawab Ali. Reading the kalandra and the FIR, both prima facie record different alleged incidents. It is also not denied that the case registered against the petitioner vide aforesaid FIR is at the initial stage. It has also come in the kalandra as well as in the FIR that at the time of alleged incident there was a huge rush as the incident had occurred at polling booth. Reading the kalandra and the FIR, prima facie it cannot be said that no offence as is alleged in the FIR had taken place. Considering the circumstances in which alleged occurrences have taken place, the kalandra and the FIR cannot be meticulously examined as is contended. The Supreme Court in S.M. Datta v. State of Gujarat and Another; (2001) 7 SCC 659 has held that the genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude, neither is it a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise.

8. Prima facie, the delay has also been explained by the prosecution. It has also been mentioned by the prosecution that the names of the assailants were revealed only on the next day when injured Nawab Ali gave his statement. It is not the stand of petitioners that there was any animosity of Constable Nawab Ali with the present petitioners. As per the prosecution, there is also an independent witness, namely, Hasinuddin (PW) who has been examined during the investigation and is alleged to have seen occurrence as is alleged in the FIR.

9. Considering the totality of facts and circumstances, the present case does not fall within the parameters set down for quashing of FIR as is laid down by the Apex Court in State of Haryana v. Bhajan Lal; AIR 1992 SC 607 (Para 108).

In view of the above discussion, no case for quashing of FIR is made out.

The petition stands dismissed.

VEENA BIRBAL, J March 31, 2014 kks