Through: Shri Prabhat Bohra vs State Of Uttarakhand
2022 Latest Caselaw 2913 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
              Writ Petition (Criminal) No. 638 of 2022

Himanshu.                                      ................Petitioner.

                              Through: Shri Prabhat Bohra, learned counsel
                              for the petitioner.

                              -Versus-
State of Uttarakhand
and others.                                      .........Respondents.
                              Through: Shri Ranjan Ghildiyal, learned AGA
                              for the State of Uttarakhand.

              Date of hearing and judgment : 12.09.2022
Shri Sanjaya Kumar Mishra, J.

1. Petitioner has prayed for quashing of the First Information Report No. 0001 of 2022 dated 14.01.2022 registered under Section 34, 147, 323, 308, 325, 504, 506 IPC and under Section 3 (1) (j) of the Scheduled Castes and Scheduled Tribes, (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "SC/ST Act" for brevity) at police station - Naachni, District - Pithoragarh.

2. Learned counsel for the petitioner would submit that since the FIR reveals that offence took place at 04.30 p.m. and the FIR has been lodged at 04.30 p.m., therefore, it is presumed that the FIR is ante timed, therefore, it should be quashed. He would further submit that CCTV footage and GD entry should be called for to examine that FIR is ante time and; that the offence under Section 3 (1) (j) of the SC/ ST Act is not made out against the petitioner.

3. Generally, in our country where majority of people are semi literate, witnesses / informants give information of commission of crime by approximation time. In the present case, approximated time is given in lodging the FIR. It cannot be dealt with surgeon's precision to quash the FIR, if there is mention that

incident took place at 04.30 p.m. and the FIR was lodged at the same time in the police station, which is situated 03 kms. away from the place of incident.

4. So far as second submission of the learned counsel for the petitioner is concerned that CCTV and GD entry should be called for to examine that FIR was never lodged at 04.30 p.m., I am of opinion that at the stage of deciding the question whether to quash the FIR or not, the writ Court is not required to have mini trial to find out whether defence plea is correct and then, on such basis, to quash the FIR.

5. However, I am in agreement with the third submission made by learned counsel for the petitioner that no offence under Section 3 (1) (j) of the SC/ ST Act is made out against the petitioner but prima facie, offences under Section 3 (1) (r) and 3 (1) (y) of the SC/ ST Act are made out against the petitioner. Hence, the Investigating Officer is directed to remove the Section 3 (1) (j) of the SC / ST Act from the scope of investigation and consider Sections 3 (1) (r) and 3 (1) (y) of the SC/ST Act within the scope of investigation. This observation is made only from bare perusal of the contents of the FIR. If after completion of the investigation, the Investigating Officer finds that offence under Section 3 (1) (j) of the SC/ST Act is also made out, then the Investigating Officer shall be at liberty to add the same.

6. Learned counsel for the petitioner would rely upon the reported judgment of Hon'ble Supreme Court in the case Gorige Pentaiah Vs. State of Andhra Pradesh and others (2008) 12 SCC 531 wherein the Hon'ble Supreme Court has held that unless the accused name the caste of the complainant, no offence under Section 3 (1) (x), prior to amendment, is made out. However, sub clause (r) does not provide for mention of caste name, which is

there in clause (s). In this case, the petitioner abused the complainant and stated that he belongs to low caste and how dare he came in public Dhaba and touched the water jug, therefore, even if in the FIR the name of caste of the complainant is not mentioned, as it is not required in clause (r) and (y), FIR cannot be quashed.

7. In this connection, we also rely upon the observations made by Hon'ble Supreme Court in the case of R.P. Kapur Vs. State of Punjab (1960) 3 SCR 388 wherein the Hon'ble Supreme Court while dealing with the scope of inherent powers of the High Court under Section 561-A of the old Code has held that ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. The Hon'ble Supreme Court has further held that it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, the Hon'ble Supreme Court, in that case, indicated some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases

under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases, in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

8. In the present case, learned counsel for the petitioner wants this Court to believe that the FIR is ante time or that the case is false, by indulging this Court in a mini trial by calling for the

records and CCTV footage. From the FIR itself, it is not demonstrated by the learned counsel for the petitioner that the allegations, made in the FIR, do not constitute a prima facie case of offences, referred to above. It is also not the case of the petitioner that the allegations made in the FIR are so patently absurd that it is not possible on the part of the Court to accept that the facts mentioned therein are not true.

9. The ratio decided by the Hon'ble Supreme Court in the case R.P. Kapur (supra) was later on followed by Hon'ble Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others (1992) Supp. (1) SCC 335 wherein the Hon'ble Supreme Court has held that after considering the facts of the case, where a criminal proceeding can be quashed, either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution of India or in the exercise of the inherent powers of the High Court under Section 482 of the Code. The Hon'ble Supreme Court has further held 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 F.I.R. 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.

10. In that view of the matter, writ petition fails and is hereby dismissed.

(Sanjaya Kumar Mishra, J.) (Grant urgent certified copy of this order, as per Rules)

SKS