Antarpal vs State Of Uttarakhand And Others
2021 Latest Caselaw 2896 UK

      IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


                    Writ Petition (Criminal) No.712 of 2021

Antarpal                                                         ......... Petitioner

                                        Vs.
State of Uttarakhand and others                               .......Respondents

Present:
           Mr. Siddharth Singh, Advocate for the petitioner.
           Mr. Lalit Miglani, A.G.A. for the State.
           Mr. Raj Avtar Singh, respondent no.3 present in person through video
           conferencing.

                                          With
                    Writ Petition (Criminal) No. 988 of 2021
Satish Kumar                                                     ......... Petitioner

                                        Vs.
State of Uttarakhand and others                               .......Respondents

Present:
           Mr. M.S. Pal, Senior Advocate, assisted by Mr. Shivanand Bhatt, Advocate
           for the petitioner.
           Mr. Lalit Miglani, A.G.A. for the State.
           Mr. Raj Avtar Singh, respondent no.3 present in person through video
           conferencing.

                                  JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Since common questions of law and facts are involved in both these petitions, hence, they are decided by this common judgment.

2. The petitioners in both the petitions, seek quashing of the FIR No. 224 of 2021, under Sections 147, 148, 323, 324, 325, 326, 504 & 506 IPC, Police Station Kotwali Roorkee, District Haridwar.

3. According to the FIR, on 14.04.2021, respondent no.3 (the informant) was chased by the petitioners and others and at about 8:00 in the evening, he was assaulted by hard and sharp edged weapon, due to which,

two teeth of the informant were broken. FIR is quite in detail. It also makes mention of some incident dated 11.04.2021, when the petitioners abused and threatened the informant to life at the time of some inspection. The FIR also records some incident with regard to some other persons, namely, Smt. Rakhi Sharma and others, as well as, some sale deed allegedly executed by the petitioners by committing forgery. FIR also records that the petitioners and others were unhappy because the informant had filed a petition in this Court against illegal constructions, which were being carried out by the petitioners and others on a river side.

4. Counter affidavits have been filed by the State and the private respondent.

5. Heard learned counsel for the parties and perused the record.

6. Learned counsel for the petitioner in WPCRL No. 712 of 2021 would submit that this case squarely falls within para 102 sub-clause (5) and (7) of the State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335. It is argued that a bare reading of the FIR categorically reveals that it is malafide and the allegations are absurd and inherently improbable.

7. Para 102 sub-clause (5) and (7) in the case of Bhajan Lal (supra) are as hereunder:-

"102 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 extraordinary 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 channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1)...

(2)...

(3)...

(4)...

(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) ......

(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."

8. Learned counsel also raised the following points:

(1) The FIR is vague. It makes mention of some petitions filed by the informant, but its details are not given in the FIR. It also makes mention of some incident dated 11.04.2020, but then no report was filed. It also makes mention of some incident dated 7-8.02.2021 as well as an incident of execution of forged sale deed, which are unconnected to the informant.

(2) According to the FIR, when the informant was surrounded by the petitioners and others, he somehow managed to escape from the spot by driving his car, which according to learned counsel would not have been possible had the incident been taken place in the manner as alleged in the FIR.

(3) The FIR is palpably false because, in fact, no properties of the petitioners were ever sealed, as alleged in the FIR. The petitioners and the informant, all deals in the properties; they had transactions in the past; FIR records that the petitioners intend to grab the property of the informant, therefore, in fact, it is an attempt by the informant to give shape of criminal case to a civil dispute.

9. In addition to the above, the learned counsel would also submit that the medical injury report, which the informant allegedly got prepared,

reveals that it is a cooked up story and on the face of it improbable for the following reasons:-

(1) The medical examination of the informant was allegedly conducted on 15.04.2021 at 03:02 A.M. The incident allegedly took place on 14.04.2021 at about 08:00 P.M., therefore, it is much delayed. (2) The medical examination on 15.04.2021 was allegedly conducted by Dr. Manish Sharma, but on that date, he was not on night duty, as is revealed from the information, which the petitioners obtained through Right to Information. In the medical examination which was conducted on 15.04.2021, at about 03:02 A.M., at injury No. 8 merely it is recorded that two teeth were broken, but it was not referred to any higher centre. Thereafter, a supplementary report was allegedly prepared by the same doctor, namely, Dr. Manish Sharma on 11.05.2021 at 09:00 A.M. mentioning therein that injury No. 8 was referred to the expert and then the doctor gave an opinion that it was grievous. It is argued that injury No. 8 was never referred to any expert on 15.04.2021, when the informant was examined by Dr. Manish Sharma. Dr. Manish Sharma was not on duty on 11.05.2021. (3) When the informant visited police station after the alleged incident, he was allegedly given a slip for medical examination and in that slip injury on teeth has not been recorded, instead those injuries are allegedly only on the neck, hand and fingers. If it is so, how could subsequently injuries could be detected on teeth?

(4) The alleged supplementary report dated 11.05.2021 is not reliable on the face of it, because this report is on a Letterhead bearing Sr. No. 62, whereas on Sr. No. 61 and 63 of the Letterhead of that hospital, medical examination was conducted on 10.06.2021 and 12.06.2021, respectively.

(5) When the genuineness of the supplementary report dated 11.05.2021 was doubted, the date in the supplementary medical report was changed from 11.05.2021 to 11.06.2021, but then it is argued that, in fact, on 07.06.2021 itself, the investigating officer had given a report to this Court that he had added Section 326 IPC during investigation based on, inter alia, a supplementary medical report. If the supplementary medical report was prepared on 11.06.2021, how could the investigating officer inform the Court on 07.06.2021 that he had added Section 326 of IPC on the basis of supplementary medical report? (6) The natural teeth of the informant has even not alleged to have been broken and if it were artificial teeth, offence under Section 326 IPC is not made out.

10. Learned counsel would submit that one way or other, the informant intends to harass the petitioners. It is an act of wreaking vengeance and interference of the Court is required.

11. On behalf of the petitioner Satish in WPCRL No. 988 of 2021, the learned Senior Counsel adopts the arguments as advanced on behalf of the counsel for the petitioner in WPCRL No. 712 of 2021. In addition, learned Senior Counsel would argue that in this case the offence under Section 326 IPC is not at all made out. He would refer to the documents, which the police had allegedly given to the informant for his medical examination report, to argue that in these documents it is not recorded that the informant sustained injuries on his teeth. Instead, it is argued that, these documents reveal that at that time the informant had disclosed that he sustained injuries on his neck and fingers. Therefore, it is submitted that it belies the credibility of supplementary medical report.

12. Learned State Counsel would submit that the investigation is still under way. The investigating officer has yet not concluded as to which of the offences, if any, has been made out. The statement of doctors and some witnesses are yet to be recorded.

13. Learned State Counsel would refer to a report dated 07.06.2021 of the investigating officer, in which he has reported that based on a supplementary medical report, offence under Section 326 IPC was added in the investigation. On this aspect, learned State Counsel would submit that he has received instructions from the investigating officer today itself, in which the investigating officer has stated that in the report dated 07.06.2021 inadvertently it has been recorded that based on supplementary medical report offence under Section 326 IPC was added. Instead, it is argued that in view of the report, which is received from the investigating officer, Section 326 IPC was added on the basis of further statement of the informant, recovery of teeth and other materials.

14. On behalf of the informant, it is argued that the petitioners themselves are manipulating the documents. He would refer to some documents to argue that, in fact, the medical examination report dated 11.06.2021, which is supplementary medical repot has been given different dates by the petitioners themselves along with the petition. The Court has seen those documents, but the Court does not find any variance in these documents, which have been filed by the petitioners. Respondent no. 3, who is appearing in person through video conferencing, also referred the judgment in the case of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others, AIR 2021 SC 1918, to argue that the ratio in the case of Bhajan Lal (supra) has been overruled. But, when the Court questioned where it has overruled, he would submit that it has been discussed in the judgment.

15. These are the petitions under Article 226 of the Constitution of India. The basic rule is that if the FIR discloses commission of offence, the Court should be much slow to make any interference.

16. In the case of Bhajan Lal (supra), the Hon'ble Supreme Court has given detailed guidelines enumerating the circumstances under which the Court may make an interference. The Court has given the categories of cases in which such interference can be made as an illustration and this has been clarified in para 102 of the judgment itself. In the case of Bhajan Lal (supra), in para 103, the Hon'ble Supreme Court further observed that interference at this stage should be made in rarest of rare cases. This paragraph is as hereunder:-

"103. We also give a note of caution to the effect 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; that 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 and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

17. The law on this point has further been summarized by the Hon'ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra), where in para 23, the Court has observed as under:-

"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be

passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

18. It is also settled law that at this stage any mini trial should not be conducted. The factual aspects, which require deeper scrutiny should not be weighed at this stage to draw any conclusion and a legitimate prosecution may not be stopped at the very threshold.

19. Undoubtedly, on behalf of the petitioners doubts have been raised on the documents, which were collected during investigation, particularly, a medical examination report and dates, but then whether Dr. Manish Sharma was on duty at the relevant time and if he was not on duty and still the informant consulted him for medical examination, what will be its effect? It requires scrutiny. If Dr. Manish Sharma has given original medical examination report on 15.04.2021, then whether supplementary medical report should have been given by the same doctor or any other doctor could have given the supplementary medical report? Further, whether on 11.06.2021, on whichever date supplementary report was prepared, Dr. Manish Sharma was on duty or not, it is also a dispute which requires investigation by the investigating officer and/or if required, at a subsequent stage of trial.

20. According to the FIR, two teeth of informant were broken at the time of incident. The initial medical examination report dated 15.04.2021 at Sr. No. 8 records this fact. It is also true that it was not referred to any higher centre. Reference has been made on behalf of the petitioners to a certificate dated 27.04.2021 given by Roorkee Dental Implant Centre (supplementary affidavit of petitioner Antarpal dated 08.07.2021, Annexure No. 1) to argue that they were implanted teeth. Based on these documents, this Court cannot conclude at this stage that the teeth, which were allegedly broken at the time of incident, as recorded in the FIR, were artificial or implanted. This certificate, inter alia, also observes that permanent crowning shall also be done after some day. It does not reveal when this procedure was done on the informant. Whether post incident he approached the dental surgeon for implant or he had already been implanted with

the teeth? This would also be considered by the investigating officer during investigation.

21. In view of the all disputed questions of fact, this Court is of the view that no interference should be made by this Court and the petitions are liable to be dismissed.

22. Learned counsel for the petitioners also submit that they apprehend that using influence, the informant may immediately, after disposal of these petitions, pressurize the investigating officer to arrest the petitioners. Arrest is never mechanical or guided. After all it curtails one's liberty. There are catena of judgments or directions of the Court as to in which cases or under what circumstances arrest has to be made. This Court has no doubt that the investigating officer in this case also ensure that all the statutory provisions and procedures, as laid down for affecting arrest, are followed, in case such an occasion arises.

23. Both the writ petitions are dismissed.

(Ravindra Maithani, J.) 06.08.2021 Avneet/