Madhya Pradesh High Court
Saiyad Zakir Ali vs The State Of Madhya Pradesh on 6 April, 2023
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 6 th OF APRIL, 2023
MISC. CRIMINAL CASE No. 8089 of 2022
BETWEEN:-
SAIYAD ZAKIR ALI S/O SHRI SAIYAD ZULFIKAR ALI,
AGED ABOUT 53 YEARS, OCCUPATION: GOVT.
EMPLOYEE
R/O: 213, M.G. ROAD, DEWAS (MADHYA PRADESH)
.....APPLICANT
(BY SHRI SHIVENDRA PANDEY - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH POLICE STATION
TONK KHURD, DISTRICT DEWAS (MADHYA
PRADESH)
2. VIDHYA BAI JHOJHA W/O NARENDRA KUMAR
JHOJHA, AGED ABOUT 47 YEARS, R/O: 49
CHAMUNDA NAGAR (MADHYA PRADESH)
.....RESPONDENTS
(MS. VARSHA THAKUR - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE)
This application coming on for admission this day, the court passed the
following:
ORDER
1/ The applicant has filed this petition under Section 482 of the Code of
Criminal Procedure, 1973 (in short "Cr.P.C.") for quashment of the FIR dated
13.11.2021 arising out of Crime No.560/2021 registered at P.S. Tonkkhurd,
Signature Not Verified
District Dewas for the offence under Section 354, 354A, 506 of IPC and
Signed by: TRILOK SINGH
SAVNER
Section 3(1)(xii), 3(1)(w)(ii), 3(2)(v) of the SC/ST (Prevention of Atrocities)
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5:55:03 PM
Act, 1989 (in short "SC/ST Act").
2/ The facts of the case in brief are that on 6.11.2021 prosecutrix gave a
written complaint at P.S. Tonkkhurd by stating that on 25.9.2021 she was
working at the post of Female Health Worker (ANM) in Community Health
Centre, Tonkkhurd with duty timing from 8 a.m. to 5 p.m. She was working on
vaccination of Covid-19. The prosecutrix was going to submit the duty work
and in between the applicant/accused stopped her and asked about her
whereabouts and told to keep good relations and keep her happy. After hearing
the same, the complainant rushed to the vaccination room and seeing that the
room was vacant, the applicant followed her. The applicant started teasing her
with obscene gestures and started obscene talks with her. As she resisted
against the same, the applicant said to the complainant that you belongs to a
lower caste and if you disclosed the incident to anyone, I will kill you.
Furthermore he used to taunt the complainant everyday and due to fear and
dignity of the society, complainant tolerated everything. Accordingly offence
has been registered at Crime No.560/2021.
3/ Learned counsel for the applicant submits that the said FIR has been
registered against him on false and frivolous grounds. He is innocent and falsely
implicated in this matter. FIR has been lodged after unexplained delay of one
month and 11 days. On 25.9.2021 applicant was directed to work at Primary
Health Centre, Chaubaradhira vide order dated 12.3.2018 (Annexure P/2) and
on the same day he worked at PHC, Chaubaradhira and Secretary, Gram
Panchayat has issued certificate (Annexure P/3) in this regard. Aforesaid fact
was also certified by the Block Medical Officer, CHC, Tonkkhurd vide
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certificate dated 24.11.2021 (Annexure P/5). The list of the vaccination
Signed by: TRILOK SINGH
SAVNER
Signing time: 06-Apr-23
5:55:03 PM
beneficiaries is Annexure P/6. FIR was not taken according to the law. No
offence is made out against the applicant. Hence he prays that FIR registered
against the applicant be quashed.
4/ Per contra, learned counsel for the respondent No.1/State opposed
the petitioner and prayed for its rejection.
5/ Nobody has appeared on behalf of the respondent No.2 despite
service of notice.
6/ I have considered the rival contentions raised on behalf of both the
parties and perused the charge sheet placed on record along with the present
petition.
7/ In order to make out a prima facie case for prosecuting a person, the
complaint must show that accused had committed criminal breach of trust with
malafide intention.
8/ Though it is a fact that under Section 482 of Cr.P.C. wide power has
been given to the High Court, however it should not be applied in random but
to use sparingly. Section 482 of Cr.P.C. has been incorporated to prevent
abuse of process of law and not to encourage the offences of false implication.
In the instant case applicant has taken plea that at the time of incident he was
posted in the different hospitals as per the duties assigned by his higher officers
and on the same day prosecutrix also not worked in the CHC, Tonkkhurd. The
burden of fact to prove alibi lies upon the applicant, but it is a matter of
evidence and same fact cannot be decided at this stage without recording the
statement of the witnesses and genuineness of the alleged certificate issued by
the different agencies.
Signature Not Verified
9/ Hon'ble the apex Court in the case of Kaptan Singh Vs. State of
Signed by: TRILOK SINGH
SAVNER Uttar Pradesh and Others reported in (2021) 9 SCC 35 in paragraph No.10
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has held as under:-
“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 â€" 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.â€
10/ Hon'ble the apex Court again in the case of Munshiram Vs. State
of Rajasthan and Another passed in Criminal Appeal No.515-516 of
2018 on 09/04/2018 in paragraph No.13 has held as under:-
“In light of the fact that the enquiry was pending and there are
Signature Not Verified
aspects which may require investigation, we are of the considered
opinion that the High Court erred in quashing the FIR at the
Signed by: TRILOK SINGH
SAVNER
threshold itself without allowing the investigation to proceed. We
Signing time: 06-Apr-23
5:55:03 PM
cannot agree with the reasons provided under the impugned
judgment concerning certain factual assertions made by the
Respondents as to the condition of the deceased and reasons for
committing suicide because acceptance of the said would not be in
consonance with the settled jurisprudence under Section 482 of
CrPC as laid down by various judgments of this Court.â€
11/ The apex Court in the case of CBI Vs. Arvind Khanna reported
in (2019) 10 SCC 686 in paragraph No.17 has held as under:-
“17. After perusing the impugned order and on hearing the
submissions made by the learned senior counsels on both sides, we are of the
view that the impugned order passed by the High Court is not sustainable. In a
petition filed under Section 482 Cr.P.C., the High Court has recorded findings
on several disputed facts and allowed the petition. Defence of the accused is to
be tested after appreciating the evidence during trial. The very fact that the High
Court, in this case, went into the most minute details, on the allegations made by
the appellant-C.B.I., and the defence put-forth by the respondent, led us to a
conclusion that the High Court has exceeded its power, while exercising its
inherent jurisdiction under Section 482 Cr.P.C.
18. In our view, the assessment made by the High Court at this stage,
when the matter has been taken cognizance by the Competent Court, is
completely incorrect and uncalled for.â€
12/ In the case of Ramveer Upadhyay and Anr. Vs. State of U.P. &
Anr. passed in Special Leave Petition (Crl.) No.2953 of 2022 , Hon'ble the
apex Court has held as under:-
Signature Not Verified
“.....Whether the allegations are true or untrue, would have to be
Signed by: TRILOK SINGH
SAVNER
decided in the trial. In exercise of power under Section 482 of the
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Cr.P.C., the Court does not examine the correctness of the
allegations in a complaint except in exceptionally rare cases where
it is patently clear that the allegations are frivolous or do not
disclose any offence. ....â€
13/ Thus, it is clear that although this Court cannot make roving inquiry
at this stage, but if the uncontroverted allegations do not make any offence, only
then this Court can quash the FIR. The allegations made against the applicant
established prima facie case punishable under Section 354, 354A, 506 of IPC
and Section 3(1)(xii), 3(1)(w)(ii), 3(2)(v) of the SC/ST (Prevention of
Atrocities) Act. Therefore, the claim of the applicant that there is no evidence
available against him, cannot be accepted at this stage.
14/ Having regard to the aforesaid, this petition under Section 482 of
Cr.P.C. is dismissed.
C.C. as per rules.
(ANIL VERMA)
JUDGE
trilok
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 06-Apr-23
5:55:03 PM
