Siyaram Agrawal And Ors vs State Of Rajasthan And Anr
2022 Latest Caselaw 2447 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 1057/2010

 1.     Siyaram Agrawal Son Of Lt. Sh. Murlidhar Agrawal, R/o R-
        3, Radhagopal Ji Ka Mandir Ki Gali, Moti Dungari Road,
        Jaipur.
 2.     Ravikant Agrawal Son Of Siyaram Agrawal, R/o R-3,
        Radhagopal Ji Ka Mandir Ki Gali, Moti Dungari Road,
        Jaipur.
 3.     Shashi Kant Agrawal Son Of Siyaram Agrawal, R/o R-3,
        Radhagopal Ji Ka Mandir Ki Gali, Moti Dungari Road,
        Jaipur.
                                                                         ----Petitioners
                                      Versus
 1.     State Of Rajasthan Through P.p.
 2.     Om Prakash Saini Son Of Rambux Saini, R/o H.no. 1885
        Radhagopal Ji Ka Mandir Ki Gali, Moti Dungari Road,
        Jaipur.
                                                                     ----Respondents

For Petitioner(s) : Mr. Kapil Prakash Mathur For Respondent(s) : Mr. FR Meena, PP Mr. Mahesh Gupta

HON'BLE MR. JUSTICE FARJAND ALI

Order

Judgment reserved on:- 25.02.2022 Judgment pronounced on:- 22.03.2022

1. The instant criminal misc. petition has been preferred by the

accused petitioners seeking quashing of FIR No. 89/2010

registered at P.S. Moti Dungri, Distt. Jaipur city(east) for the

offences under Sections 341 and 323 of IPC.

2. Briefly stated the fact of the case are that the

aforementioned FIR, came to be lodged, alleging inter alia that on

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04.04.2010 at around 07:00-07:30 when the complaint and his

family members were performing daily pursuits at their home,

suddenly, the petitioner along with almost 13 persons barged

forcibly in the house of the petitioners and abruptly made assault

over them. For the aforementioned incident two FIRs have been

lodged; one at the instance of the petitioner No. 1, Siyaram

Agarwal, which was registered as FIR No. 90/2010 for offences

under Section 143, 323, 379, and 452 of IPC and the other

bearing FIR No. 89/2010 for offences under section 341 and 323

of IPC at the instance of complainant-respondent No. 2 Om

Prakash. The petitioners have sought quashing of the FIR No.

89/2010.

3. Heard learned counsel for the petitioner and learned public

prosecutor as well as counsel for the complainant, gone through

the entire material, as made available on record, including the

charge-sheet pertaining to FIR No. 90/2010.

4. At the threshold learned counsel for the petitioners submits

that there were no two incidents. Both the FIRs have been

registered in relation to a single incident albeit with two different

narration of facts. He submits that an incisive probe has been

conducted in both the matters by the Investigating Officer. After

investigation, the complainant party has been found involved in

committing offence under Sections 143, 323, 452 of IPC and as

many as 6 persons namely 1.Dhanraj, 2. Mohan Saini,3. Om

Prakash, 4. Smt. Gopi, 5. Smt. Sushila, 6. Smt. Nanita @ Naini

have been charge-sheeted for committing offence of forming an

unlawful assembly, voluntarily causing hurt and offence of house

breaking.

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5. The learned Trial Court after applying its judicial mind, took

cognizance of the offence and trial is under process against the

complainant party; thus, in this view of the matter, he submits

that when indisputably the instances are not two, but one and the

complainant party has been held responsible for committing

offence in the FIR lodged at the behest of the petitioner party then

certainly for the same incident forcing the petitioners to face the

course of the investigation and then trial, would surely be an

abuse of process of law.

6. Learned counsel further submits that from the bare perusal

of the FIR, no offence under Section 341 of the IPC is disclosed

since there are no allegations for wrongfully restraining the victim

complainant party. It is submitted that section 323 of IPC being a

non-cognizable offence therefore no FIR can be lodged in respect

of Section 323 of IPC as the same is contrary to the provisions

contained in Section 154 of the Cr. P. C. He further submits that

the matter is pending since last 11 years, the petitioner No. 1 is a

practicing lawyer and the family having good repute in the society,

pendency of the case against them is a mental trauma which

consistently and persistently agonise them. It is submitted that

since the allegations are highly absurd and preposterous as well

as patently false and against the provisions of law, therefore, to

meet the ends of justice, the FIR impugned No. 89/2010 deserves

to be quashed and set aside.

7. Learned public prosecutor and Mr. Mahesh Gupta, learned

counsel for the complainant opposed the prayer on the ground

that the matter requires investigation and due to interim order

dated 07.07.2010, the same could not be completed. It is also

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submitted that the FIR No. 89/2010 was lodged first at the point

of time.

8. Heard, perused the FIR No. 89/2010 and its relevant papers

as well as gone through the FIR No. 90/2010 and its charge sheet.

9. After anxious consideration of the submissions made at the

bar, perusal of the record, my observations are as under:-

"A. Indisputably both the FIRs have been lodged for one incident although with different versions. The FIR impugned bearing registration No. 89/2010 is at an earlier point of time as the same got lodged on 04.04.2010 at 20:50 hours. FIR No. 90/2010 came to be lodged at 04.04.2010 at 21:00 hours just after 10 minutes of the lodging of FIR No. 89/2010, therefore it's not so serious which could adversely affect the case of the parties since there is no inordinate delay in lodging the FIR. It doesn't matter that who rushed and approached the SHO at the earlier point of time.

B. The perusal of the injury reports annexed with the charge sheet of FIR No. 90/2010 which is lodged at the instance of the petitioner party reveals that petitioner No. 1 received 5 visible injuries, out of which, two injuries are complaint of pain at right thigh which were noted by the medical officer present at SMS hospital, Jaipur. The injury report of Kunti Agarwal wife of the petitioner No. 1 Siyaram Agarwal reflects that she was having 3 injuries in her body. The medical jurist noted 4 injuries on the body of petitioner No. 3 Shashikant Agarwal S/o Siyaram Agarwal. Four injuries have also been noted on the body of Ravikant, another son of the petitioner No. 1 Siyaram Agarwal.

All the injury reports got prepared under the requisition of Investigation Officer, the injuries were noted to be fresh as the same noted soon after the incident.

C. The most important fact required to be considered is that the site memo prepared by the ASI Ummaid Singh during the course of the investigation; in presence of the independent witnesses of the same vicinity. A bare perusal of the site memo prepared by the investigating officer clearly reveals that place of incident was inner side of the house of petitioner No. 1 Siyaram Agrawal. The complainant of this case is not the resident of the adjacent house. The officer who prepared the

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site memo, prepared a map of the crime scene wherein the place of incident has been pointed as 'X' which is situated in sign 1, the house of the petitioner No 1.

D. After investigation in FIR No. 90/2010, investigating agency has charge sheeted 5 accused persons belonging to complainant party for accusation of committing offence of house trespass after preparation of hurt, assault or wrongful restraint and voluntarily causing hurt. Charge sheet for offence of house breaking, forming unlawful assembly and voluntarily causing hurt to the petitioner party has been filed and after taking cognizance of the offence; the matter is pending trial against the complainant party. The result of investigation as arrived by the Investigating Officer, who was the investigating officer of both the cases, proved an offence against the complainant party which gets further fortification from the injury reports of the petitioner party as well as the site memo and map prepared in presence of the independent witnesses.

E. The matter pertaining to offences under Section 323, 341 of the IPC is pending against the petitioners at the stage of investigation for last more than 11 years.

F. Prima facia it is emanating that the complaint party were the aggressors and assailant, who entered into the house of the petitioner.

G. It would be manifested from the perusal of the FIR impugned that there are no allegations of wrongful restraint against the complaint respondent. Thus, the ingredients essential to constitute an offence under section 341 of IPC are conspicuously missing, thus, invocation of offence under section 341 of IPC in FIR per se is not warranted by law as no offence under this section is made out. Section 323 of IPC being a non- cognizable offence, therefore, as per the mandate of section 154 of Cr.P.C. the FIR can be lodged at the police station for an offence which is a cognizable one. In other words the FIR for non cognizable offence alone(without addition of any cognizable offence) cannot be registered at police station without order of the magistrate."

10. Whether while hearing a plea for quashing of FIR impugned;

the papers/documents pertaining to FIR No. 90/2010 can be taken

into consideration or not, may be a question for consideration.

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11. Hon'ble Supreme Court in landmark judgement, dealing with

the proposition of law pertaining to quashing of FIR/complaint/all

criminal proceedings initiated against an accused by High Court

under Section 482 Cr.P.C., rendered in the case of Prashant

Bharti v. State of NCT of Delhi, reported in AIR 2013 SC

2753, has held as under:-

"23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal- proceedings, in exercise of power vested in it under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same

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would not conclude in the conviction of the accused."

Thus this Court is aptly guided by the judicial pronouncement

referred supra.

12. What should be the parameters while hearing a plea for

quashing of an FIR; this court is aptly guided by the celebrated

judgment passed in State of Haryana and Ors. Vs. Ch. Bhajan

Lal and Ors. [1992 Supp (1) SCC 335], in which the Hon'ble

Apex court has discussed the scope of powers of High Court to

quash FIR/complaint/all criminal proceedings under Section 482

Cr.P.C. in detail and has determined such instances where

FIR/complaint/all criminal proceedings can be quashed. The

relevant part of the above-mentioned judgment reads as under:-

"105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the 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 theaccused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order

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of a Magistrate within the purview of Section 155(2) of the code.

3. Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar en-grafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. Article 21 of the Constitution of India envisage, that no

person shall be deprived of his right to life and liberty except the

procedure established by law. It is trite law that the procedure

must be fair and reasonable. Forcing any person to face the

course of investigation and then trial is certainly a restraint upon

his right to life and liberty.

14. Following the principles of law, this court deems it

appropriate to consider the documents (charge sheet) of FIR No.

90/2010 which is registered at the instance of the petitioner No 1.

It is not disputed that both the FIRs relate to one incident albeit

with different narration and aspects, the time of incidence, the

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place of incident as well as the parties in both the FIRs are same.

Considering the discussions as made in preceding para no.09

wherein 7 features of the case have been noted, this court is of

the considered view that continuance of the FIR and investigation

in pursuant thereof would be nothing but an abuse of process of

law and therefore the same deserves to be quashed and set aside.

15. In view of over all discussions and observations made herein

above, and guided by the principles laid down in Prashant Bharti

v. State of NCT of Delhi (supra) and State of Haryana and

Ors. Vs. Ch. Bhajan Lal and Ors. (supra), I am of the firm view

that present is a fit case which falls within the parameters laid

down by Hon'ble the Supreme Court, therefore, this court deems

it appropriate to allow the criminal misc. petition and to quash the

proceedings that arose out of the FIR impugned.

16. In view of the discussion made above, the instant criminal

miscellaneous petition succeeds. The FIR impugned No. 89/2010

registered at Police Station Moti Dungri and all consequential

proceedings undertaken in pursuant thereof are hereby quashed

and set aside.

17. The SHO, Moti Dungri, Jaipur City, Jaipur is directed to

prepare a closure report of above FIR and to submit the same with

the Magistrate concerned within 30 days from the date of receipt

of this order.

18. Accordingly, the stay petition is allowed.

19. The stay petition stands disposed of.

(FARJAND ALI),J

SAHIL SONI/222

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