C482/610/2022
2022 Latest Caselaw 1402 UK

       IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
      THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                      06TH MAY, 2022


CRIMINAL MISCELLANEOUS APPLICATION NO.610 of 2022


Between:

Smt. Poonam Bhagat                                ...Applicant.

and

State of Uttarakhand and Another.            ...Respondents.


Counsel for the Applicant :      Mrs. Pushpa Joshi, learned
                                 Senior Advocate assisted by
                                 Ms. Chetna Latwal, learned
                                 counsel.

Counsel for the State/     :     Mr. Lalit   Miglani,   learned
Respondent no. 1                 AGA.


Hon'ble Alok Kumar Verma, J.

The applicant-accused Smt. Poonam Bhagat, mother-in-law of the deceased, invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, "the Code") to quash the charge-sheet dated 18.05.2021 and summoning order dated 25.05.2021, passed in Criminal Case No. 2378 of 2021, "State vs. Shivam Bhagat alias Aisvarya and others", pending before the Court of Chief Judicial Magistrate, Haridwar.

2. Facts, to the limited extent necessary, are that the informant-Mahendra Gautam, father of the deceased, lodged a First Information Report that the marriage of his daughter, namely, Smt. Yashika Gautam, was solemnized

with the co-accused Shivam Bhagat on 09.12.2020. After marriage, the present applicant along with other co- accused persons started harassing and torturing her for the demand of dowry in the shape of Audi car. On 31.12.2000, the present applicant along with other co- accused persons had beaten up his daughter and kicked her out of the house. He had admitted his daughter to Dev Bhoomi Hospital, Haridwar. After a few days, his daughter's husband, co-accused, apologized and took her back with him. Even after that, her daughter was harassed and tortured by these persons for the demand of Audi car. On 23.02.2021 at around 8:30 a.m.-9:00 a.m., his daughter informed her mother on phone that her life is in danger, and, these people are harassing her demanding car and money. On 24.02.2021, at around 3:30 p.m., a call of his daughter's husband Shivam from Mobile No.9627375554 came to his son, Dhruva Gautam, and he (Shivam) asked him to come along with his father. The informant along with his son immediately reached the applicant's house. Seeing them, the present applicant left the house. They saw that Shivam Bhagat was in the room and the daughter of the informant was lying on the bed in a dead state. There were wounds and bruises on her neck and body.

3. The First Information Report was registered at 15:28 hrs. on 25.02.2021 against the present applicant and co-accused persons. After completion of the investigation, charge sheet is filed.

4. Subsequent to the submission of the charge- sheet, the Chief Judicial Magistrate, Haridwar took cognizance and passed the impugned summoning order against the present applicant under Section 304-B of IPC.

5. Heard Mrs. Pushpa Joshi, learned Senior Advocate assisted by Ms. Chetna Latwal, learned counsel for the applicant and Mr. Lalit Miglani, learned AGA for the State.

6. The learned Senior Advocate appearing for the applicant submitted that the applicant, aged about 52 years, has been falsely implicated; on the date of the incident, i.e. on 24.02.2021, the applicant was in a political rally in Roorkee along with several other party members; the entire event of the said political rally was covered and a post was uploaded on social media, where the applicant can be seen along with other party members; the applicant had sent a written application to the Senior Superintendent of Police, Haridwar, stating therein that she was in Roorkee, when the incident took place; the deceased had hung herself; members of her parental house were informed, but, instead of taking the body to the hospital, the family members of the deceased assaulted them and vandalized the house.

7. The learned Senior Advocate argued that there were healthy relationship between the present applicant and the deceased, and, there was no stress between them, which can be seen in WhatsApp chats, annexed to the present application. The learned Senior Advocate submitted that as per the entry in the Case Diary, at the time of the incident, the phone location of the applicant was in Jawaharpur and after that the location was in Roorkee. The learned Senior Advocate further argued that the entire impugned proceedings are total abuse of process and is an example of the misuse of the provision.

8. Mr. Lalit Miglani, the learned counsel for the State, opposed the submissions of the learned Senior

Advocate, and, submitted that from perusal of the evidence, collected during the investigation, it is found that the present applicant was involved in this crime and no reason is found to implicate the applicant.

9. Section 482 of the Code envisages three circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under the Code, or, to prevent abuse of the process of any Court, or, to secure the ends of justice." Section 482 of the Code reads as follows: "Saving of inherent powers of High Court:- nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

10. This inherent jurisdiction though wide should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice. While exercising jurisdiction under this section, the Court does not function as a Court of Appeal or Revision. Therefore, quashing of charge- sheet or setting aside the summoning order on the appreciation of evidence is not justified.

11. The scope of Section 482 of the Code has been considered by the Hon'ble Supreme Court in various judgments.

12. In Madhu Limaya Vs. State of Maharashtra, 1978 AIR 47, the Hon'ble Apex Court has held that the following principles would govern the exercise of inherent jurisdiction of the High Court - (1) Power is not to be resorted to, if there is specific

provision in Code for redress of grievances of aggrieved party. (2) It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice. (3) It should not be exercised against the express bar of the law engrafted in any other provision of the Code.

13. In Pepsi Food Limited vs. Special Judicial Magistrate and Others, 1998 (36) ACC 20, the Hon'ble Supreme Court has observed that under Section 482 of the Code have no limits, but more the power more due care and caution is to be exercised in invoking these powers.

14. In Lee Kun Hee and Others vs. State of U.P. and Others, JT 2012 (2) SC 237, the Hon'ble Supreme Court held that the Court in exercise of its jurisdiction under Section 482 of the Code cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record.

15. In Shakson Belthissor vs. State of Kerala and another, (2009) 14 SCC 466, the Hon'ble Supreme Court observed, "The scope and power of quashing a first information report and charge-sheet under Section 482 of the CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge-sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive. A number of decisions have been rendered by this Court on the aforesaid issue wherein the law relating to quashing of a complaint has been succinctly laid down."

16. In State of Haryana v. Bhajan Lal (1992) Supp.(1) SCC 335, the Hon'ble Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of its jurisdiction:-

"(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 the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted 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 FIR 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 engrafted 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."

17. In 'M/s. Neeharika Infrastructure Private Ltd. Vs. State of Maharashtra and Others', 2021 SCC OnLine SC 315, the Hon'ble Supreme Court has held as under:-

"10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

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 cognizable offences;

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

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

iv)The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

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 and a rarity 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. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

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

x) Save in exceptional cases where noninterference 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. During or 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 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; and

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

"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 noninterference 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. In Kaptan Singh vs. State of Uttar Pradesh and others, 2021 SCC OnLine SC 580, the Hon'ble Supreme Court observed that in the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2019) 18 SCC 191 after considering the decisions of Bhajan Lal (Supra), it is held that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed in the case of C.B.I. vs. Arvind Khanna, (2019) 10 SCC 686, Telangana vs. Managipet, (2019) 19 SCC 87 and in the case of XYZ vs. State of Gujarat, (2019) 10 SCC 337.

19. Admittedly, the marriage of the deceased was solemnized with the co-accused Shivam Bhagat, son of the present applicant, on 09.12.2020 and she died on 24.02.2021 under unnatural circumstances. During the investigation, evidence are produced that the deceased was subjected to cruelty soon before her death for demand of dowry by the applicant. At this stage, the presumption of the provision of Section 113-B of the Indian Evidence Act, 1872 attracts against the applicant.

20. In the present case, the learned Chief Judicial Magistrate took the cognizance after considering the evidence available on the record. The said allegations are required to be tested only at the time of trial. This Court cannot hold a parallel trial in an application under Section 482 of the Code. It is well settled that at the time of considering of the case for cognizance and summoning, merits of the case cannot be tested and it is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations. This Court would not also examine the genuineness of the allegations since this Court does not function as a Court of Appeal or Revision, while exercising its jurisdiction under Section 482 of the Code. In this matter it cannot be said that there are no allegations against the applicant. Apart this, learned counsel for the applicant could not able to show at this stage that allegations 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 applicant.

21. Therefore, in the light of the facts and circumstances of the present case, the present case does not fall in any category set out by the Hon'ble Supreme Court. Accordingly, the prayers for quashing the charge- sheet and setting aside the summoning order are refused.

22. Since, the case has to be tried, I make it clear that the observations made earlier are only for the disposal of this application, filed under Section 482 of the Code. These observations will not influence the trial court while deciding the case.

23. With the aforesaid directions, the application, filed under Section 482 of the Code, is dismissed.

__________________ ALOK KUMAR VERMA, J.

Dt: 06.05.2022 Ravi