Madhya Pradesh High Court
Deepak Garg vs The State Of Madhya Pradesh on 19 January, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 19th OF JANUARY, 2023
MISC. CRIMINAL CASE No. 33397 of 2021
BETWEEN:-
DEEPAK GARG S/O SHRI MANNULAL GARG,
AGED ABOUT 47 YEARS, OCCUPATION: BUSINESS
1/1 SETH MISHRILAL NAGAR, DEWAS (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AMIT AGRAWAL - SR. ADVOCATE WITH
SHRI ARJUN AGRAWAL - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROGUH P.S.
CIVIL LINES, DEWAS (MADHYA PRADESH)
2. RAMPRASAD SURYAVANSHI S/O LATE SHRI
MANGILAL SURYAVANSHI, AGED ABOUT
47 YEARS, 309, GANGA NAGAR, DEWAS
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI VISHAL SANOTIA - G.A FOR RESPONDENT
NO.1 AND SHRI YOGESH GUPTA - ADVOCATE FOR
RESPONDENT NO.2 )
This application coming on for hearing this day, the court passed the
following:
ORDER
The present petition is filed u/S.482 of Cr.P.C for quashment of the FIR
and charge sheet in Crime No.0436/2018 for the alleged offence u/Ss.294,
506 IPC read with Sec.3(1)(r) and (s) of the Scheduled Castes & Scheduled
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Tribes (Prevention of Atrocities) Act, 1989 (for short "SC & ST Act 1989")
and all subsequent proceedings.
[2] This is second visit of the present applicant u/S.482 of the Cr.P.C.
Initially on 15.10.2018 an FIR in Crime Case Number 436/2018 registered at
Police Station Civil Lines, Dewas for the offences punishable u/Ss.294, 506
and 34 of the IPC read with Secs.3(1)(r) and (s) of the SC & ST Act 1989 and
Sec.25/27 of the Arms Act against the present applicant and his father
Mannulal Garg. Earlier along his father Mannulal Garg the applicant filed a
petition u/S.482 of Cr.P.C seeking quashment of the FIR dated 15.10.2018.
The said petition was disposed off by order dated 27.3.2019 with the
following directions:-
"Undisputedly, the advocate chambers are constructed
in the premises of the District Court, Dewas and just adjacent
thereto is the petrol pump being run by the petitioners. If there
is any doubt or confusion as regards the dividing line through
the boundary wall or barbed wire fencing, in all fairness, the
respondent No.2 should have consulted the District Judge and
sought assistance instead of picking up fight with petitioners.
9. Though there is substantial force in the submission
advanced by the learned senior counsel for the petitioners, but,
this Court is of the view that in the fitness of things, it shall be
appropriate to direct the Superintendent of Police, Dewas for
intervention in the matter and use his good office ensuring
peace and tranquility settling the matter. If required, he may
also seek guidance from the District Judge, Dewas as
vulnerability of dividing line of boundary wall involves the
ownership land of the petitioners and premises of the District
Court.
At the same time, the Superintendent of Police shall also
bestow conscious consideration upon the complaint filed by the
petitioners vide Annexures P/11, P/12 and P/13 while carrying
our directions of this Court and take a decision.
However, no coercive action shall be taken against
either of the party."
[3] It is undisputed that the mediation between the parties failed and after
investigation, the respondent No.1 filed a charge sheet against the present
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applicant in the said case for commission of offence u/Ss.294, 506 and
Sec.3(1(r) and (s) of SC & ST Act, 1989. The case was closed against co-
accused Mannulal Garg and the charge sheet was not filed for commission of
offences u/S.34 IPC and Sec.25/27 of the Arms Act. It is also not in dispute
that the charges have yet not been framed by the trial court.
[4] The facts of the case are that wife of the petitioner owns a petrol pump
namely M/S. Maa Kailadevi Motors which is situated on land comprising of
Survey Nos.640, 645, 641 and 642, Patwari Halka No.18, Indore Dewas
Road, Dewas. The District Court, Dewas premises is just adjacent to the land
of petrol pump of the petitioner. The petitioner's land is separated from the
district court premises by barbed wire fence. For the purpose of construction
work, for the construction of Advocates Chambers in the District Court
Dewas premises was under progress. The raw material of construction was
dumped and parked on the main entrance gate of the District Court premises
due to which heavy vehicles like trucks and dumpers could not pass through
the main entrance gate. The respondent No.2 former president of Dewas
District Court Bar Association requested the petitioner to temporarily permit
the movement of vehicles carrying construction material into the District
court premises through the petitioner's vacant land for a period of one month.
It is stated that the petitioner in good faith accepted the request of respondent
No.2 and removed the barbed wire fence for free movement of vehicles
through their land in the district court premises temporarily. The said
arrangement continued for a period of almost three months. The building
material dumped near the main entrance of the district court premises was
cleared, enabling movement of larger vehicles through the main gate. On
12.10.2018 the barbed wire fence was reinstalled as before. On 15.10.2018
at around 12 PM it is alleged that the respondent No.2 trespassed into the
petitioner's land and without seeking permission or intimating the petitioner,
started removing the barbed fence from the petitioner's land. The petitioner
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was present at the spot and requested respondent No.2 not to remove the
fence. By that time all the cement poles were removed except one. The
allegation has been made that the respondent No.2 was very furious and
launched an indecent assault on the petitioner by pelting stones towards the
petrol pump and man handling the petitioner. The father of the petitioner
made a complaint in writing to the respondent No.1 and a written complaint
was also submitted by Manager of the Petrol Pump. It is alleged that the
respondent No.2 made a complaint to District Collector, Dewas requesting to
cancel the permit granted to the wife of the petitioner. The said application
was rejected by the Collector. The appeal against the said order was preferred
before the Divisional Commissioner which was also dismissed, thereafter a
revision was preferred against the order of appellate authority which was
allowed by the State government. Because of the said reason in order to take
revenge from the petitioner, a false report has been lodged by respondent No.2
alleging that the petitioner along with his father entered the court premises
and pointed gun against the respondent No.2 in the presence of about 50
advocates and then the petitioners conveniently fled away. Assailing the
registration of FIR the petitioner along with his father co-accused Mannulal
Garg filed petition u/S.482 of Cr.P.C contending that the ingredients of the
offence u/Ss.294, 506/34 of IPC, Sec.3(1)(r) and (s) of SC & ST Act 1989
and Sec.25, 27 of the Arms Act are not contained in the FIR and no case is
made out.
[5] After elaborate consideration of submissions of both the parties the
High Court did not quash the FIR and disposed off the matter with the
directions as reproduced in the preceding paragraphs. After the attempt to
settle the dispute between the parties failed, the investigation was carried out
by the respondent No.1 and after investigation, the charge sheet for
commission of offences u/Ss.294, 506 of IPC and Sec.3(1)(r) and (s) of SC &
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ST Act, 1989 has been filed. No charge sheet is filed against co-accused
Mannulal Garg and no offence u/S.34 of IPC and Arms Act was found.
[6] Counsel for petitioner after referring to the FIR and the statements of
witnesses recorded u/S.161 of Cr.P.C submitted that the ingredients of offence
u/Ss.294, 506 IPC and Sec.3(1)(r) and (s) of SC & ST Act, 1989 are not
present and there are material contradictions in the statements of the
witnesses u/S.161 of the Cr.P.C. The petitioner has been falsely implicated
in the present case and there is abuse of process of law and, therefore, the
proceedings of Crime No.436/2018 for the alleged offence is liable to be
quashed. It is vehemently argued that the ingredients of intention and
knowledge for commission of offence under SC & ST Act, 1989 are not
present in the complaint and the statements of the witnesses. In support of his
submissions, he has placed reliance on the following judgments:-
(1) Pawan Kumar Vs. State of Haryana & & another
(1996) 4 SCC 17.
(2) Manik Taneja & another Vs.State of Karnataka &
another (2015) 7 SCC 423.
(3) Gorige Pentalah Vs. State of Andhra Pradesh &
others (2008) 12 SCC 531.
(4) D.P. Vats Vs. State & Others 2002 SCC Online Del
(5) M.L. Ohri & others Vs. Kanti Devi 2009 SCC Online
P&H 6388.
(6) Deepa Bajwa Vs. State & Ors. 2004(77) DRJ 725.
(7) Asha Aggarwal Vs. State 2014 SCC Online Del 1281.
(8) State of Haryana & others Vs. Ch. Bhajan Lal &
others AIR 1992 SC 604.
(9) Dinesh Chandubhai Patel Vs. State of Gujarat &
another (2018) 3 SCC 114.
(10) Ramesh Rajagopal Vs. Devi Polymers Private
Limited (2016) 6 SCC 310.
(11) Vineet Kumar & others Vs. State of Uttar Pradesh &
another (2017) 13 SCC 369.
(12) Inder Mohan Goswami & another Vs. State of
Uttaranchal & others (2007) 12 SCC 1.
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[7] Counsel for State and respondent No.2 submitted that after failure of
attempt to settle the dispute, the investigation was carried out and a CCTV
footage which was installed in the petrol pump of the applicant was seized by
panchnama which is at page No.76. It is recorded in the panchnama that the
present petitioner is seen at the spot. The entire CCTV footage was
deliberately not made available by the petitioner to the prosecution. However,
on the basis of CCTV footage and statements of witnesses prima facie case
has been found in the investigation against the petitioner u/Ss.294, 506 of IPC
and Sec.3(1)(r) and (s) of SC & ST Act 1989. The charges have yet not been
framed and the petitioner will get an opportunity to argue on the framing of
charge before the trial court. This Court has not quashed the FIR in the first
round of petition u/S.482 of Cr.P.C and the scope of interference u/S.482 is
limited.
[8] I have heard the learned counsel for parties and perused the record.
[9] So far the law in relation to scope and ambit of Sec.482 Cr.P.C has been
elaborately considered by the Supreme court in the case of Bhajan Lal (supra)
and in the other judgments by the Apex Court referred by learned Senior
Counsel for the petitioner wherein it is held that a court proceeding ought not
to be permitted to degenerate into a weapon of harassment or prosecution. In
para 108 of the judgment of Bhajanlal (supra), the Apex Court has culled
out the principles for quashment of FIR u/S.482 of Cr.P.C or under Article
226 of the Constitution of India. In para 109 the court has observed a note of
caution to the effect that power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and that too in the rarest of
rare cases. The Court will not be justified in embarking upon an enquiry as
to the reliability or genuineness or otherwise of the allegations made in the
FIR or the complaint. The extra ordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whim or caprice. The
para 130 of judgment of Bhajanlal (supra) reads as under:-
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"The power of quashing a criminal proceeding
should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
The extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice. The court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the
FIR or the complaint."
[10] The Apex Court has considered the scope and ambit of Section 482
Cr.P.C for quashment of FIR, complaint and criminal proceedings in the
following judgments:-
In Kamaladevi Agrawal Vs.State of W.B. (2002) 1 SCC 555, the Apex
Court opined:
"This court has consistently held that the
revisional or inherent powers of quashing the
proceedings at the initial stage should be exercised
sparingly and only where the allegations made in the
complaint or the FIR, even if taken at their face value
and accepted in entirely, do not prima facie disclose
the commission of an offence. Disputed and
controversial facts cannot be made the basis for the
exercise of the jurisdiction."
In the case of R.Kalyani Vs. Janak C.Mehta, (2009) SCC 516, the Apex
Court laid down the law in the following terms:
"15. Propositions of law which emerge from
the said decisions are:
(1) The High Court ordinarily would not
exercise its inherent jurisdiction to quash a criminal
proceeding and , in particular, a first information
report unless the allegations contained therein, even
if given face value and taken to be correct in their
entirety, disclosed no cognizable offence.
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(2) For the said purpose, the Court, save and
except in very exceptional circumstances, would not
look to any document relied upon by the defence.
(3) Such a power should be exercised very
sparingly. If the allegations made in the FIR disclose
commission of an offence, the Court shall not go
beyond the same and pass an order in favour of the
accused to hold absence of any mens rea or actus
reus.
(4) If the allegation discloses a civil dispute, the
same by itself may not be a ground to hold that the
criminal proceedings should not be allowed to
continue."
[11] The aforesaid legal position has been reiterated in the case of Mahesh
Chaudhary Vs. State of Rajasthan and another (2009) 4 SCC 439. Relevant
paras 11 and 12 are reproduced as under:
"11. The principle providing for exercise of the
power by a High Court under Section 482 of the
Code of Criminal Procedure to quash a criminal
proceedings is well known. The Court shall
ordinarily exercise the said jurisdiction, inter alia,
in the event the allegations contained in the FIR or
the complaint petition even if on face value are
taken to be correct in their entirety, does not
disclose commission of an offence."
12. It is also well settled that save and except in very
exceptional circumstances, the Court would not
look to any document relied upon by the accused in
support of his defence. Although allegations
contained in the complaint petition may disclose a
civil dispute, the same by itself may not be a ground
to hold that the criminal proceedings should not be
allowed to continue. For the purpose of exercising
its jurisdiction, the superior courts are also
required to consider as to whether the allegations
made in the FIR or the complaint petition fulfil the
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ingredients of the offences alleged against the
accused."
[12] In the case of Amit Kapoor vs. Ramesh Chander and
another, (2012) 9 SCC 460, the Apex Court has culled out certain
principles to be considered for proper exercise of jurisdiction with
regard to quashing of the charge either in exercise of power under
Section 397 or Section 482 of the Cr.PC, or together, as the case may
be. The principles laid down by the Apex Court in paras 27.1, 27.2,
27.3 and 27.6 are reproduced as under:
"27.1.Though there are no limits of the
powers of the Court under Section 482 of the Code
but the more the power, the more due care and
caution is to be exercised in invoking these
powers. The power of quashing criminal
proceedings, particularly, the charge framed in
terms of Section 228 of the Code should be
exercised very sparingly and with circumspection
and that too in the rarest of the rare cases.
27.2. The Court should apply the test as to
whether the uncontroverted allegations as made
from the record of the case and the documents
submitted therewith prima facie establish the
offence or not. If the allegations are so patently
absurd and inherently improbable that no prudent
person can ever reach such a conclusion and
where the basic ingredients of a criminal offence
are not satisfied then the Court may interfere.
27.3. The High Court should not unduly
interfere. No meticulous examination of the
evidence is needed for considering whether the
case would end in conviction or not at the stage of
framing of charge or quashing of charge.
Xx xx xx xx
Xx xx xx xx
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27.6. The Court has a duty to balance the
freedom of a person and the right of the
complainant or prosecution to investigate and
prosecute the offender."
[13] The same view has been reiterated by the Apex Court in a
latest judgment of Asian Resurfacing of Road Agency Pvt.Ltd. and
another. Vs. Central Bureau of Investigation, AIR 2018 SC 2039.
Para 100 reads as under:
"100. However, there is a series of cases
wherein this Court while dealing with the
provisions of Sections 227, 228, 239, 240, 241,
242 and 245 CrPC, has consistently held that the
court at the stage of framing of the charge has to
apply its mind to the question whether or not there
is any ground for presuming the commission of an
offence by the accused. The court has to see as to
whether the material brought on record
reasonably connect the accused with the offence.
Nothing more is required to be enquired into.
While dealing with the aforesaid provisions, the
test of prima facie case is to be applied. The court
has to find out whether the materials offered by
the prosecution to be adduced as evidence are
sufficient for the court to proceed against the
accused further. (Vide State of Karnataka V. L.
Muniswamy (1997)2 SCC 699): (AIR 1977 SC
1489) All India Bank Officers' Confederation
V. Union of India (1989) 4 SCC 90: (AIR 1989
SC 2045) Stree Atyachar Virodhi Parishad Vs.
Dilip Nathumal Chordia (1989) 1 SCC 715)
State of M.P. Vs. Krishna Chandra Saksena
(1996) 11 SCC 439) and State of M.P. Vs.
Mohanlal Soni (2000) 6 SCC 338): (AIR 2000
SC 2583)"
[14] Relying on the aforesaid judgments a division bench of this Court at
Jabalpur in M.Cr.C. No.51211/2018 Nandlal Gupta Vs.Union of India held
that High Court's power to quash criminal proceedings should be exercised
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sparingly and rarest of rare cases. Reliability of allegations made in the FIR
or complaint not to be examined. The division bench further held the scope
of interference u/Ss.482 for quashing of charger sheet, High Court should not
unduly interfere. No meticulous examination of the evidence is needed at this
stage. The court has to see as to whether the material brought on record
reasonably connects the accused with the offence. Nothing more is required
to be noted.
[15] In the light of aforesaid enunciation of law and the fact that the charges
are yet to be framed in the trial and the applicant will have an opportunity to
make his submissions at the time of framing of charge, I am not inclined to
interfere at this stage u/S.482 of Cr.P.C. The petition is dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
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