Naresh Kumar And Ors vs State Of H.P. And Ors
2022 Latest Caselaw 11792 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No. : 31 of 2021 Reserved on : 20.12.2022

.

                                                 Decided on        : 30.12.2022





     Naresh Kumar and ors.                                       ....Petitioners

                                         Versus





     State of H.P. and ors.                                      ...Respondents.

     Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

For the petitioners

For respondents No.1to3:

: to Whether approved for reporting?1 Yes

Mr. Guna Nand Verma, Advocate.

Mr. Desh Raj, Thakur, Additional Advocate General.

For respondent No.4 : Mr. I.S. Chandel, Advocate.

Satyen Vaidya, Judge

Heard.

2. By way of instant petition, petitioners have

prayed for following substantive reliefs:-

1. That the FIR No. 23, dated 05.02.2017,

Annexure P-1, registered with Police Station Theog, Distt. Shimla, H.P. against the present petitioners under Section 448, 323, 325 and Section 34 of IPC and all further proceedings including judicial proceedings, if any, arising out of it may be quashed and set aside.

2. That in alternate Annexure P-1 qua petitioner No.3 be quashed and set aside being not present at place of occurrence and was under

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

training of Patwari at Kasauli during that period in view of the annexure P- in the end of justice and fair play.

3. That respondent No. 1 may be directed to take

.

proper disciplinary action and other appropriate criminal proceedings against the official

respondents especially respondent No. 3 for misusing their official powers in contravention of the law of the land and for further unduly harassing and intimidating the petitioners and

further for subjecting the petitioners to wrongful confinement and illegal prosecution.

4. That the respondent State may be directed to institute appropriate criminal proceedings against all the private respondents for the illegal

act and conduct committed by the said respondents as mentioned in the petitioners.

5. That the respondents may be directed to grant suitable compensation to the petitioners from the

pockets of erring officials for which the petitioners had to suffer on account of illegal

acts and conduct of the respondent.

3. Brief facts necessary for adjudication of the

petition are that two cross FIRs bearing Nos. 22/2017 and

23/2017 came to be registered at Police Station Theog,

District Shimla, H.P. on 05.02.2017. In FIR No. 22/2017,

petitioner No.1 was the complainant and in FIR No. 23/2017,

respondent No. 4 was the complainant. The dispute had

arisen with respect to possession of Shop No.13, Vegetable

Market, Theog. Both the sides had levelled cross

allegations. On one hand, petitioner No. 1 claimed possession

on the shop in question, on the other, respondent No. 4

claimed the same to be in his possession. The allegations of

forcible dispossession and infliction of injuries were also

levelled against each other.

4. Petitioners have prayed for quashing of FIR No.

.

23/2017, on the grounds that the same was false. Their

possession on the Shop No.13 situated in Vegetable Market,

Theog, was established. The FIR had been lodged against

them by police in connivance with respondent No. 4. It has

further been submitted on behalf of the petitioners that

petitioner No. 3 was undergoing training on the date of

alleged occurrence at Kasauli and was not present on the

spot. Petitioner No. 2 is stated to be handicapped. It has

further been alleged that FIR No. 22/2017 recorded at the

instance of petitioner No. 1 has been investigated and

cancellation report has been presented by the police in the

Court.

5. It is revealed from the replies filed on behalf of the

respondents that after investigation in FIR No. 23/2017,

police found prima facie case against petitioners and challan

was presented. Petitioners were charged and prosecution

evidence is in the process being recorded.

6. The instant petition was filed by the petitioners

on 15.01.2021. Noticeably, in para-8(v), petitioners

themselves have averred that respondent No. 4 and his wife

had been examined as prosecution witnesses before the date

of filing of instant petition. Meaning thereby that petitioners

.

were aware about the fact that the Court was already seized

of the matter. It had framed the charge against the petitioners

after taking cognizance. Still, no factual foundation was laid

in the petition to challenge the material collected by the

Investigating Agency during investigation as also the order

passed by learned Judicial Magistrate First Class, whereby

the cognizance was taken and subsequently charges were

framed. Petitioners have in their entire petition raised

objections with respect to the falsity of the facts, on the basis

of which, FIR No. 23/2017 was registered.

7. Record reveals that the petitioners has not placed

on record even the order passed by learned Judicial

Magistrate First Class, whereby the cognizance was taken.

The order framing the charge has also not been placed on

record. Though, a prayer has been made to quash further

proceedings including judicial proceedings, if any, arising out

of FIR No. 23/2017, but petition is completely silent, as to

on what basis, subsequent proceedings are sought to be

quashed without laying any challenge thereto in accordance

with law.

8. In above noticed circumstances, the contents of

.

FIR No. 23/2017 losses much significance. FIR is not meant

to contain all the details. It is only recording of information

in respect of the cognizable offence. The contents of FIR can

only be skeleton narration of facts. It is only after

investigation that the police arrives at some conclusion as

to existence of a case against the accused or otherwise.

9. In Kaptain Singh Vs. State of Uttar Pradesh

and others (2021) 9 SCC 35, the Apex Court has held as

under:-

9.1 At the outset, it is required to be noted that in

the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections147, 148, 149, 406, 329 and 386

of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by

the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the

independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the

allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected

.

and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on

different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of

decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in

order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held

that question is required to be examined keeping in view, the contents of FIR and prima facie

material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is

disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet

is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this

Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of

Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to hereinabove.

9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on

.

hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the

criminal proceedings in exercise of powers under Section 482 Cr.P.C.

10. The High Court has failed to appreciate and

consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the

investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarized affidavit of Mamta Gupta - Accused No.2 and Munni Devi under which according to Accused no.2 - Ms. Mamta Gupta, Rs.25 lakhs was paid and the possession

was transferred to her itself is seriously disputed. It is required to be noted that in the registered

agreement to sell dated 27.10.2010, the sale consideration is stated to be Rs.25 lakhs and with no reference to payment of Rs.25 lakhs to Ms. Munni Devi and no reference to handing over the possession. However, in the joint notarized

affidavit of the same date i.e., 27.10.2010 sale consideration is stated to be Rs.35 lakhs out of which Rs.25 lakhs is alleged to have been paid and there is a reference to transfer of possession

to Accused No.2. Whether Rs.25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon

the said document and payment of Rs.25 lakhs as mentioned in the joint notarized affidavit dated 27.10.2010. It is also required to be considered that the first agreement to sell in which Rs.25

lakhs is stated to be sale consideration and there is reference to the payment of Rs.10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

10. Keeping in view the above noticed dictum that

FIR in question cannot be quashed, at this stage, in

absence of any specific challenge to the investigation

.

conducted by police and also orders passed by Court of

Competent jurisdiction, whereby firstly, cognizance was

taken and thereafter, the charges were framed. During the

course of hearing, the Court was informed by learned

counsel for respondent No. 4 that most of the prosecution

witnesses have already been examined in the case. This

Court while exercising jurisdiction under Section 482 of

Cr.P.C will not hold any inquiry into the factual aspect of

the matter. The facts alleged in the petition and also

canvassed on behalf of the petitioners by learned counsel

representing him are subject of trial and hence, cannot be

gone into by this Court, at this stage.

11. In view of above discussion, there is no merit in

this petition and the same is accordingly dismissed.

Pending miscellaneous application(s), if any, shall

also stand disposed of.

                                              (Satyen Vaidya)
    30th December, 2022                           Judge
        (sushma)