Memo Of Parties Lt. Col Soami Saran ... vs The State Of Madhya Pradesh
2024 Latest Caselaw 6313 MP

Madhya Pradesh High Court

Memo Of Parties Lt. Col Soami Saran ... vs The State Of Madhya Pradesh on 1 March, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                                                                                         1                                          W.P. No.20738/2023



                          IN THE HIGH COURT OF MADHYA PRADESH
                                      AT JABALPUR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                                                                ON THE 01st OF MARCH, 2024

                                                            WRIT PETITION No.20738 of 2023

                          BETWEEN:-
                          LT. COL SOAMI SARAN BHATNAGAR S/O SHRI
                          A.K. BHATNAGAR, AGED ABOUT 43 YEARS,
                          OCCUPATION: CURRENT POSTING: HQ 12,
                          CORPS SIGS JODHPUR, RAJASTHAN, CURRENT
                          ADDRESS : R/O 375/4, ADHIKARI ENCLAVE,
                          RIDGE ROAD, JABALPUR (MADHYA PRADESH)
                          PERMANENT ADDRESS: 206, MAHATMA GANDHI
                          NAGAR    DCM    AJMER    ROAD,   JAIPUR
                          (RAJASTHAN)

                                                                                                                                      .....PETITIONER
                          (BY SHRI ANVESH SHRIVASTAVA - ADVOCATE)

                          AND
                          1.      STATE OF M.P. THROUGH SHO, POLICE
                                  STATION    GORABAZAR,   JABALPUR
                                  (MADHYA PRADESH)

                          2.      INDRAJEET    TIWARI,    INVESTIGATING
                                  OFFICER (ERSTWHILE), ASSISTANT POLICE
                                  INSPECTOR, POLICE STATION GORABAZAR
                                  JABALPUR (MADHYA PRADESH)

                          3.      VEERENDRA SINGH THAKUR S/O LATE
                                  BISAN SINGH THAKUR, AGED ABOUT 22
                                  YEARS, R/O VEHICLE ROAD SHARDA
                                  NAGAR RANJHI, JABALPUR (MADHYA
                                  PRADESH)

                                                                                                                                 .....RESPONDENTS
                          (RESPONDENT/STATE BY SHRI RITWIK PARASHAR
                          - GOVERNMENT ADVOCATE AND RESPONDENT
                          NO.3 BY SHRI ISHAN SONI - ADVOCATE)
                          ............................................................................................................................................




Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 05-Mar-24
4:59:17 PM
                                                            2                      W.P. No.20738/2023


                                This petition coming on for admission this day, the court passed the
                          following:
                                                           ORDER

Case diary is available.

2. This petition under Article 226/227 of Constitution of India has been filed for quashment of FIR dated 15/07/2023 registered at Police Station Gorabazar, District Jabalpur in Crime No.303/2023 for offence under Sections 279, 337, 304-A of IPC.

3. It is submitted by counsel for petitioner that on 14/07/2023 while petitioner was returning back to his house and was taking turn towards the right side for coming on to the Ridge road, one Motorcycle came from behind and dashed on the front right side of the Car. As a result, complainant suffered injuries whereas Rohit Kewat who was a pillion rider lost his life. It is submitted by counsel for petitioner that Police after completing investigation has filed the charge-sheet.

4. Challenging the FIR, it is submitted by counsel for petitioner that in fact FIR was lodged belatedly on false grounds. In the FIR, it was alleged that the petitioner, who was driving the Car, had dashed the Motorcycle from behind. Whereas from the footage of CCTV camera installed in the nearby places, it is clear that Motorcycle had dashed on front right side of the Car. The Motorcycle had come from wrong side and while petitioner was turning his Car towards the right side in order to come on to the Ridge road, the Motorcycle dashed the Car of the petitioner. It is further submitted that although petitioner had collected videographs of the accident and had provided to the Police but Police with malafide intention has not filed copy of the said CCTV footages along with the charge-sheet. It is further submitted that applicant is an

Army officer and on account of pendency of this criminal case, his future prospects would get adversely affected. Therefore, FIR and criminal prosecution should be quashed.

5. Per contra, petition is vehemently opposed by counsel for the State as well as counsel for the complainant.

6. Heard learned counsel for the parties.

7. Before considering the submissions made by counsel for the applicant, this Court would like to consider the scope of interference at this stage of 482 of Cr.P.C. or under Article 226/227 of Constitution of India.

8. The Supreme Court in the case of XYZ v. State of Gujarat reported in (2019) 10 SCC 337 has held as under :

14. Having heard the learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the writ petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsel have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and

trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual.

When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings.

(Underline supplied)

9. The Supreme Court in the case of State of Tamil Nadu Vs. S. Martin & Ors. reported in (2018) 5 SCC 718 has held as under:-

"7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for ..........."

10. The Supreme Court in the case of Ajay Kumar Das v. State of Jharkhand, reported in (2011) 12 SCC 319 has held as under :

12. The counsel appearing for the appellant also drew our attention to the same decision which is relied upon in the impugned judgment by the High Court i.e. State of Haryana v. Bhajan Lal. In the said decision, this Court held that it may not be possible to lay down any specific guidelines or watertight compartment as to when the power under Section 482 CrPC could be or is to be exercised. This Court, however, gave an exhaustive list of various kinds of cases wherein such power could be exercised. In para 103 of the said judgment, this Court, however, hastened to add that as a note of caution it must be stated that the power of

quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases for the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or in the complaint and that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

11. The Supreme Court in the case of Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350 has held as under :

5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung v.

Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.

12. The Supreme Court in the case of State of A.P. v. Gourishetty Mahesh reported in (2010) 11 SCC 226 has held as under :

18. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the

same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.

19. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.

20. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution.

We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482.

13. The Supreme Court in the case of M. Srikanth v. State of Telangana, reported in (2019) 10 SCC 373 has held as under :

17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a

case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings.

14. The Supreme Court in the case of CBI v. Arvind Khanna reported in (2019) 10 SCC 686 has held as under :

17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel 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 CrPC, 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 CBI, 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 CrPC.

18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for."

15. Further, the Supreme Court in the case of State of MP Vs. Kunwar Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 has held that a detailed and meticulous appreciation of evidence at the stage of 482 of CrPC is not permissible and should not be done. In the case of Kunwar Singh (supra), the Supreme Court held as under:-

"8........At this stage, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal

trial after evidence is adduced. In doing so, the High Court has exceeded the well-settled limits on the exercise of the jurisdiction under Section 482 of CrPC. A detailed enquiry into the merits of the allegations was not warranted. The FIR is not expected to be an encyclopedia..........."

16. Similar view has been taken by Supreme Court in the cases of Munshiram Vs. State of Rajasthan reported in (2018) 5 SCC 678, Teeja Devi Vs. State of Rajasthan reported in (2014) 15 SCC 221, State of Orissa Vs. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547, S. Khushboo Vs. Kanniammal reported in (2010) 5 SCC 600, Sangeeta Agrawal Vs. State of U.P. reported in (2019) 2 SCC 336, Amit Kapoor Vs. Ramesh Chander reported in (2012) 9 SCC 460, Padal Venkata Rama Reddy Vs. Kovuri Satyanarayana Reddy reported in (2012) 12 SCC 437, M.N. Ojha Vs. Alok Kumar Srivastav reported in (2009) 9 SCC 682.

17. Thus, it is clear that this Court can quash the proceedings only if un-controverted allegations do not make out an offence.

18. It is the stand of counsel for the petitioner that in fact driver of the Motorcycle was rash and negligent in driving the vehicle. He had come from wrong side of the road. He dashed on the front right side of the Car and the allegation that petitioner had dashed the Motorcycle from behind is false.

19. Counsel for the petitioner was alleging that although the applicant had provided CCTV footage to the I.O. but the same has not been filed along with charge-sheet, but the said submission made by counsel for the petitioner is incorrect.

20. The State has also filed its return and has also filed a Pen Drive containing CCTV footages of the accident. Even in the list of documents, CCTV footages have been mentioned in the charge-sheet.

21. Since the main thrust of argument was that it is the driver of the motorcycle who had come from the wrong side and dashed on the front right side of the Car and in fact driver of the Motorcycle was negligent, therefore this Court thought it proper to run CCTV footages in the open Court because they are the part of charge-sheet. Pen Drive which has been filed along with return by the State contains two video footages. One video footage is of CCTV camera installed near the Hoshiyarsingh Gate and another in the house of Dr. Anand situated at nearby place.

22. So far as CCTV footage of the house of Dr. Anand is concerned, it is clear that the actual accident was not captured. The only intention behind filing said CCTV footage appears to indicate that Motorcyclists had come from wrong side. Another CCTV footage which was captured by CCTV camera installed at the Hoshiyarsingh Gate carries the actual footage of accident. In the CCTV footage captured by CCTV camera installed at Hoshiyarsingh Gate indicates that while the petitioner was about to turn his Car towards Hoshiyarsingh Gate in order to come on to the Ridge road, the Motorcycle came from behind and dashed the Car of petitioner on the front right side. Thus, although in the FIR it was mentioned that the Car of the applicant had dashed the Motorcycle from behind but it appears that Motorcycle had dashed the Car of the petitioner on its right front side.

23. As per the Motor Vehicle Act and Rules, vehicle has to overtake from the right side of the vehicle. From CCTV footage, it is clear that driver of the motorcycle was trying to overtake the Car driven by

petitioner from its right side. Therefore, driver of the Motorcyle was right in making an attempt to overtake the Car of the petitioner from right side of the Car.

24. It is the contention of petitioner that he was coming from the side of Cantt market and the motorcyclists were also coming from same direction. The road has a divider. One side of the divider is for the persons going towards Cantt market and another side of the divider is for the persons who are coming from the side of Cantt market. Since motorcyclists were also coming from the side of the Cantt market, therefore they should not have use the lane which is meant for commuters going towards the Cantt market.

25. Thus the only defence of the applicant is that since motorcyclists had come from the other side of the road which is separated by a small divider, therefore they were on wrong side.

26. At the cost of repetition, it is made clear that motorcyclists and the Car were moving in the same direction and both were coming from the side of the Cantt market.

27. It was fairly conceded by counsel for the petitioner that at Hoshiyarsingh Gate, which is an entry point to come on the Ridge road, there is a small divider. It is submitted by counsel for the complainant and State that divider is very small and is approximately 8 to 10 meters long. In fact there is a junction of more than two roads and therefore a small divider has been constructed. However, the question as to whether the motorcyclists were on the wrong side or they were trying to avoid the Car which was turning towards the Hoshiyarsingh Gate, is a matter which is to be decided by the Trial Court but one thing is clear that when the petitioner was turning his Car towards the right side, then it

was expected from him to use the side mirror to verify as to whether any commuter is coming or not.

28. It appears that petitioner turned the Car without taking due care and did not try to verify whether any person is coming from behind or not. Had he noticed that then he would not have tried to turn his Car thereby blocking the way of person who is coming from behind and he should have given way to the motorcyclists to cross him so that he can turn the Car without any hurdle. However, it is made clear that this finding is being recorded just in order to consider the submissions made by counsel for petitioner.

29. It is made clear that this finding shall not be treated as final conclusion because this finding has been recorded in the light of limited scope of interference and Trial Court is directed to record its finding after the evidence is recorded.

30. Merely because there is some mis-description about the manner in which accident took place, this Court cannot quash the proceedings. Whether petitioner had dashed the motorcycle from behind or the motorcycle dashed the front right side of the Car while the Car was turning towards the right direction will not make much difference because this Court has already come to a conclusion that for turning towards the right direction, the petitioner should have taken all precautions to verify as to whether somebody is coming from behind or not.

31. Under these circumstances, without conclusively deciding the negligence of the petitioner in driving the vehicle, it is held that it cannot be said that the petitioner did not contribute to the accident.

32. Under these circumstances, this Court is of considered opinion that a prima facie case is made out against the petitioner, therefore the proceedings cannot be quashed merely on the ground that petitioner is an Army officer because neither the ownership of the Car is in dispute nor the fact that petitioner was driving the Car at the time of accident is in dispute.

33. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.

34. Petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE S.M.