Uttarakhand High Court
(Under Section 482 Of Cr.P.C.) vs State Of Uttarakhand & Anr on 21 November, 2024
Author: Vivek Bharti Sharma
Bench: Vivek Bharti Sharma
2024:UHC:8677
HIGH COURT OF UTTARAKHAND AT NAINITAL
Reserved Judgment
Criminal Misc. Application No.786 of 2014
(Under Section 482 of Cr.P.C.)
Ravi Dev & Anr. .....Petitioners
Vs.
State of Uttarakhand & Anr. ....Respondents
Present:-
Mr. Arvind Vashishta, Senior Advocate assisted by Mr. Hemant Mahara,
Advocate for the petitioners
Mr. G.S. Sandhu, Additional Advocate General with Mrs. Mamta Joshi, Brief
Holder for the State.
Mr. D.S. Patni, Senior Advocate assisted by Mr. Dharmendra Barthwal, Advocate
for respondent no.2
(2) Writ Petition (Criminal) No.249 of 2024
(Under Article 226 of Constitution of India)
Deepankur Mittal & Anr. .....Petitioners
Vs.
State of Uttarakhand & Anr. ....Respondents
(3) Writ Petition (Criminal) No.318 of 2024
(Under Article 226 of Constitution of India)
Mahendra Singh Lekhi & Ors. .....Petitioners
Vs.
State of Uttarakhand & Anr. ....Respondents
Present:-
Mr. D.S. Patni, Senior Advocate assisted by Mr. Dharmendra Barthwal, Advocate
for the petitioners
Mr. G.S. Sandhu, Additional Advocate General with Ms. Mamta Joshi, Brief
Holder for the State
Mr. Vipul Sharma, Advocate for respondent no.3
1
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JUDGMENT
Hon'ble Vivek Bharti Sharma, J.
Though these three petitions viz. C482 No.786
of 2014, WPCRL No.249 of 2024 and WPCRL No.318 of
2024 were heard and reserved by this Court on different
dates but since the issues involved in these petitions
arise out of the same incident involving same question of
facts and law, therefore, for better adjudication of the
case, these petitions are being decided by this common
judgment.
2. By means of C482 No.786 of 2014, petitioners
seek quashing of charge-sheet dated 07.03.2014 and the
summoning order dated 17.06.2014 as well as the entire
proceedings of Criminal Case No.1904 of 2014 "State vs.
Ravi Dev Anand and others", under Sections 452, 325,
354, 147, 148, 323, 427, 504, 506 of IPC pending in the
court of Judicial Magistrate-I, Dehradun.
3. Factual matrix of the case is that respondent
no.2 Subhash Mittal (since deceased) lodged FIR No.201
of 2012 at P.S. Nehru Colony, District Dehradun against
the petitioners and others alleging that on 11.10.2012
when the respondent no.2 and his family members and
relatives were entering the house i.e. House No.G-11,
Race Course, Dehradun, (hereinafter referred as 'property
in question'), some anti-social elements came from
outside shouting slogans and attacked the respondent
no.2/complainant and his family members with sticks,
punches and chairs and some of them climbed the roof
and put up a board of Vishwa Hindu Parishad (V.H.P.);
that, the petitioners and other accused persons attacked
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the respondent no.2/complainant and his family and
tried to take forcible possession of the property in
question; that, one V.H.P. worker wearing black
sunglasses broke the windowpane of car of his son-in-
law; that, he (complainant) identified these persons who
had caused injuries to the complainant, his family
members and servants.
4. It was also alleged that at the same time
Vishwa Hindu Parishad (hereinafter to be referred as
"VHP") personnel called the rioters on the spot through
phone and threatened to kill the respondent
no.2/complainant and his family and tried to oust them
from the property in question; that, the Police officials
and the City Magistrate also arrived at the spot and
saved their lives; that, the complainant was apprehending
the incident long before, therefore, he had already sent a
Fax and Email to the D.G.P. and S.S.P. regarding his
programme requesting for police protection.
5. After investigation of the case, charge-sheet
was submitted against the petitioners under Sections
452, 325, 354, 147, 148, 323, 427, 504 and 506 of IPC
whereon the learned Magistrate, by the impugned order
dated 17.06.2014, took the cognizance and registered it
as Criminal Case No.1904 of 2014 summoning the
petitioners by impugned order to face trial under the
aforesaid sections.
6. Heard.
7. Submissions on behalf of petitioners
a. The learned Senior Counsel for the petitioners would
submit that the true genesis of the incident is that the
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property in question is the property of VHP by virtue of
a Gift Deed executed and registered by its owners on
01.10.2012; that, on 11.10.2012 when the petitioner
no.2 was convening meeting of volunteers of VHP in
the property in question at noon, respondent
no.2/complainant along with 10-20 other persons with
all preparations came at the property in question and
started abusing and beating him and other volunteers
with plan to take forcible possession of the property in
question; that, the complainant and his associates
were armed with weapons and they assaulted
petitioner no.1 and other volunteers; that, to report
this incident of criminal act petitioner no.2 lodged a
FIR at P.S. Nehru Colony, Dehradun under Sections
147, 307, 323, 504, 506 of IPC.
He would further submit that the present FIR
under challenge, is nothing but a counter blast to the
FIR lodged by the petitioner no.2 against respondent
no.2 and his associates.
b. That, initially the name of Shri Ravi Mittal, brother of
respondent no.2, was recorded as owner of property in
question. Shri Ravi Mittal along with his wife Late Smt.
Mahendra Devi were in possession of the property in
question till death of Late Shri Ravi Mittal and after
his death his wife i.e. Late Shri Mahendra Devi was in
possession thereof.
c. That Late Shri Ravi Mittal was residing in front portion
of property in question and the rear portion was let out
to tenants from time to time; that, Shri Ravi Mittal
expired on 10.12.2011 and after his death his wife
Smt. Mahendra Devi continued to reside in the
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property in question in her own right until her demise
i.e. 26.09.2012. Late Shri Ravi Mittal and Late Smt.
Mahendra Devi had deep faith in Hinduism; that, she
bequeathed the property in question to her children by
way of Will dated 02.05.2012; that, the children of
Late Smt. Mahendra Devi were also very religious like
their mother having immense faith in Hindu tenets
and were impressed with religious activities of VHP,
therefore, out of their religiosity and honoring wishes
of their mother Late Mahendra Devi, they gifted the
property in question to VHP vide Gift Deed registered
with Sub Registrar II, Dehradun, Book No.1, Volume
4429 pages 87 to 196 at Serial No.8146 and vide duly
registered gift deed the property was transferred and
mutated in the name of VHP.
d. That, respondent no.2/complainant is permanent
resident of Delhi and has always been residing there
but he made a nefarious design to take the possession
of the property in question considering himself as
rightful person to get the same with help of his
influence and contacts in local police as he had retired
from C.F.S.L., C.B.I. New Delhi; that, respondent no.2
came at the property in question on 11.10.2012 along
with his associates to execute this plan and, with the
help of police administration, attempted to dispossess
petitioner no.2 and VHP from the property in question
and proceedings u/s 145 of Cr.P.C. were initiated.
e. That, in order to preempt any action by the petitioners
against them, the respondent no.2, with his influence
in the police, registered the present FIR by procuring
fake medical report of some persons who never had
sustained any injuries; that, this fact is quite evident
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from the F.I.R. by respondent no.2 where no time of
incident is stated.
f. That the biased attitude of the Investigating Officers is
evident from the fact that admittedly the incident took
place at the same date, time and place but the IO,
without investigating the matter in a proper, unbiased
and professional manner, submitted charge-sheet
against the petitioners and other volunteers of VHP
but, on other hand, submitted final report against the
actual offenders i.e. the respondent no.2 and his
associates.
g. That, the respondent no.2 by exercising his influence
upon the local police managed in initiating the
proceedings u/s 145 Cr.P.C.
h. That, prior to the incident the respondent no.2 had
written an email (Annexure-10) to DGP on 02.10.2012
that "I propose to come to Dehradun on October 9, 2012
along with my wife, sisters, daughter, son and children
to stay in our own house"; that, the clout and influence
of respondent no.2/complainant was so strong that
the police immediately took note of it (Annexure-10)
and marked to I.G. Crime (L/O) for action.
i. That, this email clearly shows that on the date of
incident the respondent no.2 had hatched a nefarious
design to come at the property in question with his
associates and take forcible possession of it from the
VHP by ousting its volunteers.
j. That, the investigation of the case was done by the
Investigating Officer in a very shoddy, biased and
partisan manner; that, in the FIR lodged by the
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petitioner no.1 against respondent no.2, despite there
being cogent and credible material, injuries and
evidences on record against the respondent no.2 and
his associates, final report was submitted, whereas, in
the present FIR lodged against the petitioners, charge-
sheet based on concocted facts and fabricated
evidences was submitted.
k. That the learned Magistrate, without appreciating the
evidence on record, passed the impugned summoning
order. He would further submit that a mere perusal of
the impugned summoning order would show that the
same has been passed in a cyclostyled format without
application of judicial mind, hence, the charge-sheet
as well as the impugning summoning order is liable to
be quashed. In support of this submission, learned
senior counsel would place reliance on the following
judgments:-
(i) Sunil Bharti Mittal vs. Central Bureau of
Investigation (2015) 4 SCC 609
"48. Sine Qua Non for taking cognizance of the offence
is the application of mind by the Magistrate and his
satisfaction that the allegations, if proved, would
constitute an offence. It is, therefore, imperative that
on a complaint or on a police report, the Magistrate is
bound to consider the question as to whether the same
discloses commission of an offence and is required to
form such an opinion in this respect.....".
(ii) C482 No.894 of 2019 Haneef Malik v. State of
Uttarakhand, decided on 05.09.2022
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"....Partly, he may be correct; but, so far as the
summoning order in the instant case is concerned,
once it's a formatted order and merely it refers to
that the Court has taken into consideration the
entire material, that itself may not be an inference
that the material which has been considered was
in the context of the case for which the summoning
order has been issued."
(iii) C482 No.2109 of 2023 Himanshu Badoni vs.
State of Uttarakhand and another, decided on
01.11.2023.
"17. In that eventuality, and for the reasons
already recorded above in the light of the settled
principles of law, in the context of as to what does
literal connotation of word 'cognizance' would
have under the criminal law, the formatted
summoning order which has been issued without
application of mind, would not be sustainable....."
l. It was also the submission of learned senior
counsel for the petitioners that it is the respondent
no.2 and his cahoots who were the aggressors and the
petitioners and other volunteers only exercised their
right of private defence of life and property.
8. Along with the petition, petitioners filed the
following documents:-
(i) Copy of Civil Suit filed by respondent no.2 as
Annexure-1.
(ii) FIR of Case Crime No.202/2012 u/s 147, 307, 323,
504 and 506 of IPC lodged by petitioner no.2
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against respondent no.1 Subhash Mittal, Prashant,
Himanshu, Harendra Rawat and 10-20 other
unknown persons on 11.10.2012 at 07:30 pm at
P.S. Nehru Colony, Dehradun as Annexure-2 with
allegations that on 11.10.2012 in between 12-12.30
pm respondent no.2 and his men had come at the
office of VHP where the petitioner no.2 was sitting
along with other volunteers in a meeting and
attacked petitioners and other volunteers of VHP
with sticks and other weapons, in order to take
forcible possession of the property in question,
inflicted severe injuries to petitioner no.2 and other
persons sitting there in which petitioner no.2
sustained severe injuries on his head for which he
got seven stitches on his head.
(iii) FIR No.201/2012 lodged against the petitioner
under challenge in the present petition as
Annexure-4.
(iv) Charge-sheet dated 07.03.2014 under challenge
filed by the police against the petitioners as
Annexure-6.
(v) The cognizance order dated 17.6.2014 as
Annexure-7.
(vi) Final report of closure of the case in Crime
No.202/2012 lodged on the complaint of the
petitioner no.2 against respondent no.2 and his
cahoots as Annexure-8.
(vii) Protest petition filed by the petitioner no.2 against
closure/final report as Annexure-9.
(viii) The intimation dated 3rd October 2012 sent by email
at 02.11 pm by respondent no.2/complainant at
official email address of DGP ([email protected])
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wherein respondent no.2 wrote to the police that he
proposes to come to Dehradun on October 9, 2012
along with his wife, sisters and other family
members to stay in their house and the petitioners
may attempt to block his entry in the property in
question.
Counter Affidavit by Respondent No.2
9. Respondent no.2 filed the counter affidavit
dated 07.09.2019 through his power of attorney
Mahendra Lekhi with following documents as
Annexures:-
(i) His power of attorney as Annexure-1
(ii) Charge-sheet filed against the petitioners and
others as Annexure-2.
(iii) The order dated 22.04.2016 passed by C.J.M.,
Dehradun in criminal case no.1904/2014 as
Annexure-3 whereby the application filed by
the Prosecution u/s 321 of Cr.P.C. was
rejected.
(iv) Copy of letter dated 13.10.2016 of District
Magistrate Dehradun thereby according
permission to file the criminal revision as
Annexue-4.
(v) The application filed by Joint Director (Law) to
District Judge, Dehradun for transferring the
revision as Annexure-5.
Submissions on behalf of respondent no.2
10(a) Learned senior counsel appearing for the
respondent no.2/complainant would submit that the
present FIR discloses the commission of offence and the
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same is corroborated by medical reports and ocular
evidences of the witnesses; that, there is ample evidence
on record which clearly establishes that a prima facie
case is made out against the petitioners/accused.
(b) Learned senior counsel appearing for the
complainant would further submit that the law regarding
quashing of charge-sheet is well settled. The Hon'ble
Apex court has time and again held that a criminal case
can be quashed only in exceptional circumstances 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 any offence or
make out a case against the accused.
(c) He would further submit that it is well settled
that where the basic ingredients of an offence is made
out in FIR or charge-sheet, then the High Court should
not exercise its extraordinary jurisdiction u/s 482 of
Cr.P.C. and the trial should be allowed to run its course.
To bolster his submissions, learned senior counsel would
place reliance in re "Sanju Rajan Nayar vs. Jayaraj & Anr.
2024 SCC OnLine SC 582" and "Ruchir Ratogi vs. Pankaj
Rastogi & Ors., 2023 SCC Online SC 1360".
(d) Learned senior counsel for the respondent no.2
also argued that the petitioners with their political
influence managed to get the application filed u/s 321 of
Cr.P.C. in the court for withdrawal of prosecution but the
same was disallowed by the court of C.J.M., Dehradun;
that, against the rejection order passed by the C.J.M.,
the District Magistrate had passed the orders to file
revision, which shows the political influence and
pressure of the petitioners and the same political
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influence was used by the petitioners belatedly for taking
forcible possession of the property in question.
11. In rebuttal, learned senior counsel for the
petitioners would submit that the facts are other way
round; that, the respondent no.2 was the Principal
Scientific Officer in C.F.S.L, C.B.I., New Delhi and he had
strong connections and influence in the local police
which he had exercised to his benefit; that, this fact is
evident from the fact that even before the occurrence of the
alleged incident on 11.10.2012 respondent no.2 had
started making machinations to make a strong case in his
favour and in furtherance of same he had sent the email
on 02.10.2012 to the DGP, Dehradun stating that the
petitioners may block his entry in the property in
question.
He would further submit that prior to the
incident, the respondent no.2 and none of his family
members were acquainted or known to the petitioners for
the reason that there was no occasion to meet each other
as the respondent no.2 and his other associates were
permanent resident of Delhi since decades, then how
respondent no.2 could name them in his email.
Counsel for the petitioners would further
submit that, rather, the petitioners and other volunteers
of the VHP were attacked by respondent no.2 and the
goons called by him to take possession of the property in
question by using force and violence; that, they were well
prepared and equipped with lethal weapons and inflicted
injuries to petitioner no.2 and in treatment of which he
got 7 stitches on his head.
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12. Learned senior counsel for the petitioners
would further argue that respondent no.2 in the civil suit
stated that Ravi Mittal was ailing and suffering from
cancer and heart disease and was 90% visually
handicapped; that, if that was the condition of Late Shri
Ravi Mittal then who was looking after the business of
Ravi Mittal after the death of his father in 1996; that, in
fact Late Smt. Mahendra Devi was not the attendant but
was the legally wedded wife of Ravi Mittal and Ravi Mittal
was not so much visually handicapped because of
glaucoma but he was looking after his business and
discharging his day-to-day work comfortably and living
with Late Smt. Mahendra Devi as legally wedded
husband and wife; that, during this whole period this fact
was very much known not only to respondent no.2, but
all in the Society, sisters and other family members of
Ravi Mittal, therefore, during the lifetime of Late Smt.
Mahendra Devi, respondent no.2/complainant or his
sisters did not raise any objection that why she was
residing with Ravi Mittal because they knew that she was
the legally wedded wife of their brother Ravi Mittal; that,
this is quite evident from the fact that after death of Late
Shri Ravi Mittal, the former Chief Minister of Uttarakhand
Shri Nityanand Swami visited him and the same was
reported in newspaper that Shri Nityanand Swami visited
and consoled his wife Smt. Mahendra Devi; that, Late Shri
Ravi Mittal in an application for bail in a criminal case
(Annexure Nos.1 and 2 of Counter Affidavit filed in
WP(CRL) No.249 of 2024) stated that Late Smt. Mahendra
Devi is his wife; that, in a letter by UCO Bank Late
Mahendra Devi was addressed as wife of Late Ravi Mittal;
that, but after the death of Ravi Mittal, his brother i.e.
the respondent no.2/complainant and his sisters became
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greedy; that, after death of Late Smt. Mahendra Devi
when they came to know that the children of Late Smt.
Mahendra Devi out of religious fervor and faith towards
Sanatan Dharma donated the property in question to
VHP, respondent no.2 hatched the conspiracy to take
possession of the property by force with help of their
goons.
He would further submit that the only fault of
the petitioners was that they resisted the unlawful acts of
respondent and his associates in exercise of their right to
private defence of their lives and property to frustrate the
attempt to dispossess the petitioners from the property in
question.
13. Learned counsel for the petitioners would
further argue that at the time when incident took place
then the ruling dispensation in the State of Uttarakhand
and Centre was the Congress which was always
suspicious, rather against the activities of VHP because
of their political views and ideological differences,
therefore, it was not the political influence of the
petitioners but the influence which the respondent no.2
exerted on the local police being the Principal Scientific
Officer in C.F.S.L., C.B.I., New Delhi.
14. Considered and perused the entire material
available on record.
15. The case of the petitioners is that Late Smt.
Mahendra Devi was the wife of Late Shri Ravi Mittal and
after the death of Shri Ravi Mittal on 10.12.2011, she
was the owner and in possession of the property in
question G-11, Race Course, Dehradun. On 26.09.2012,
Smt. Mahendra Devi also died, however, before her death
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she had bequeathed this property to her children. On
01.10.2012, children of Late Smt. Mahendra Devi gifted
this property to VHP by registered gift deed executed in
the office of Sub Registrar Dehradun and since then VHP
was the absolute owner and in possession of the property
in question; that, on 11.10.2012 when the petitioner no.2
was convening the meeting of the volunteers of the VHP
at around 12-12.30 pm the respondent no.2 along with
10-20 persons forcibly tried to enter the property in
question i.e. in the office of VHP to take forcible
possession of the same by inflicting severe injuries upon
him and other volunteers.
16. This is the admitted case of the respondent no.2
that Late Smt. Mahendra Devi was residing in the property
in question since long. It is also admitted to respondent
no.2 that he has filed a suit for relief of declaration, etc.
(Annexure-1) in which he stated that his brother Sri Ravi
Mittal expired on 10.12.2011 and till his death his brother
was residing in the property in question (as stated in
bottom 4 lines of para-16 of plaint Annexure-1). It is also
admitted case of respondent no.2 in his plaint that after
the death of Shri Ravi Mittal, Smt. Mahendra Devi
continued to live in the property in question till her death
on 26.09.2012. This means, that possession of Late
Mahendra Devi on the property in question was settled.
17. Although the case of respondent no.2 is that
Late Smt. Mahendra Devi was not the legally wedded wife
of his brother Ravi Mittal, rather she was employed as an
attendant to look after their parents till they were alive
and after their death she was employed to look after his
ailing brother Ravi Mittal who was suffering from several
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ailments viz. Glucoma, heart disease and cancer, but, it is
the fact that Late Smt. Mahendra Devi was residing and in
possession of the property in question till her death and
respondent no.2 or any of his family member raised no
objection to her possession.
18. It is the case of respondent no.2 that Late Smt.
Mahendra Devi was residing in the property in question
because their brother Shri Ravi Mittal was suffering from
various ailments and was living alone and respondent
no.2 and his other family members were living outside
Dehradun and taking undue advantage of this situation,
Smt. Mahendra Devi projected herself to be the legally
wedded wife of Late Shri Ravi Mittal. However, the
learned senior counsel appearing for respondent no.2
could not explain the reason why Late Smt. Mahendra
Devi was allowed to live in the property in question after
the death of his brother Late Shri Ravi Mittal on
10.12.2011 and if Late Ravi Mittal was visually impaired
and suffering from serious diseases then who was looking
after his business.
19. It is not the case of respondent no.2 that after
the death of his brother Late Shri Ravi Mittal they had
asked Smt. Mahendra Devi to vacate the property in
question and initiated any legal proceedings against her
in her lifetime to get her ousted from it. It is also an
admitted fact that property was mutated and challenge
was made by respondent no.2 only in the year 2013 i.e.
months after the incident.
20. Admittedly, it is only after the death of Late
Smt. Mahendra Devi that respondent no.2 wrote letter to
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DGP, Uttarakhand, as mentioned above, stating that he
intends to come to his alleged house i.e. the property in
question.
21. Be it as it may. The important question which
falls for consideration of this Court is that whether on the
date of incident the petitioners were in peaceful settled
possession over the property in dispute and which party
was the aggressor in the incident in question.
22. As observed above, it is the admitted case of
the parties that Late Smt. Mahendra Devi was in peaceful
possession of the property in question till her death on
26.09.2012 and during the period between death of Late
Shri Ravi Mittal and her death i.e. between 10.12.2011
and 26.09.2012, the respondent no.2 or any of his family
members did not raise any objection to her possession or
initiated any legal proceedings to oust her. It is
inexplicable that if at all, respondent no.2 and his family
members were in possession of property in question then
what was the need for respondent no.2 to send an email
to Uttarakhand Police informing that he proposes to come
to the property in question on 09.10.2012 and the
petitioners may block his entry.
23. It is also the moot question that how just after
five days of the death of Late Smt. Mahendra Devi,
respondent no.2 came to know the fact that the property
in question has come in the hands of VHP and petitioner
no.1 and other volunteers of VHP would not allow him to
enter and would block his entry to his own house on
09.10.2012 when he intends to come. It is also pertinent
to note that in this email he stated that the petitioner and
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other volunteers of the VHP had made several attacks on
previous occasions also but he did not mention on what
date these attempts were made and why any complaint
was not made. Non-mentioning of date of any previous
attempt makes the allegations of respondent no.2 absurd
and incongruent, hence, unbelievable.
After retirement, respondent no.2 was posted
as the Executive Director, Premier Forensic Science
Institute, he must be knowing the importance of dates
and events very well. If any similar attempt was made
earlier also, prior to 02.10.2012, then why any complaint
was not lodged by respondent no.2 or any of his family
members against the petitioners or any other persons.
24. Perusal of Email dated 02.10.2012 shows that
respondent no.2 had given intimation to the police that
he proposes to come on 9th October, 2012 at this
property then what happened on 09.10.2012, whether he
had come or not on that day. If he had not come then
what were the reasons and if he had come on 09.10.2012
then what happened on that day. No explanation of these
facts strengthens the case of petitioners that the
respondents were not in possession of the property in
question on 11.10.2012 and the Email was sent just for
peshbandi.
The F.I.R. No.201/2011 reads that his servant
Govind and Shafiq were present in property in question,
if this was the case, then how could petitioner block the
entry of respondent no.2, etc. into the property, as
apprehended well in advance in the email.
25. In para-17 of the plaint of the civil suit
(Annexure-1) which was filed after eight months of the
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incident in question, respondent no.2 stated that after
retirement from the post of Principal Scientific Officer in
C.F.S.L., C.B.I. New Delhi in 2005, he continued to live in
Delhi and established "Premier Forensic Science Institute"
at New Delhi, albeit, used to come to Dehradun
occasionally. In para-19, it is also stated that the
property in question was mutated either in the name of
Late Smt. Mahendra Devi or her children against which
he filed a municipal appeal. It is also stated by
respondent no.2 in para-20 of the plaint that respondent
no.2 and his three sisters were living outside Dehradun.
The plausible inference of all these above admitted facts is
that respondent no.2 was not in possession of the property
in question on the date of incident.
26. It is also important to note that in the email
dated 02.10.2012 it is specifically stated that the
petitioners along with other persons were camping
in the property in question and were using Indica
Car for commuting which conclusively proves the
fact that VHP was in settled possession of the
property in question through their volunteers.
27. Medical report of petitioner no.2 (Annexure-3)
clearly shows that there was a lacerated wound of 5 x 0.5
cm on the back of head although what treatment was
given is not written but there is no reason to disbelieve,
in absence of any denial by the respondent no.2 in the
counter affidavit, that for the treatment of this wound
seven stitches were given to petitioner no.2.
28. As regards the submission made by learned
senior counsel for the petitioners that the petitioners
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resisted respondent no.2 and his associates in exercise of
their right of private defence, this Court finds force in
this submission. Email dated 02.10.2024 sent by
respondent no.2 makes it crystal clear that before coming
to Dehradun the respondent no.2 was well prepared and
well equipped with the plan to dispossess petitioners
from property in question by use of force and violence
and in order to save life and property in question, the
petitioners exercised their right to private defence.
29. Section 97 of IPC (Penal Law as then was)
would be relevant to be quoted, which reads as under:-
"97. Right of private defence of the body and
of property.--
Every person has a right, subject to the restrictions
contained in section 99, to defend--
First.-- His own body, and the body of any other
person, against any offence affecting the human
body;
Secondly.-- The property, whether movable or
immovable, of himself or of any other person,
against any act which is an offence falling under
the definition of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass."
30. In Munshi Ram and others vs. Delhi
Administration (1967) SCC Online SC 80 has held as
under:-
"18. In Jai Dev v. State of Punjab this Court while
dealing with the right of private defence of property
and person observed (at p. 500)
"In appreciating the validity of the appellants'
argument, it would be necessary to recall the
basic assumptions underlying the law of self-
defence. In a well ordered civilised society it
is generally assumed that the State would
take care of the persons and properties of
individual citizens and that normally it is the
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function of the State to afford protection to
such persons and their properties. This,
however, does not mean that a person
suddenly called upon to face an assault must
run away and thus protect himself. He is
entitled to resist the attack and defend
himself. The same is the position if he has to
meet an attack on his property. In other
words, where an individual citizen or his
property is faced with a danger and
immediate aid from the State machinery is not
readily available, the individual citizen is
entitled to protect himself and his property.
That being so, it is a necessary corollary to
the doctrine of private defence that the
violence which the citizen defending himself
or his property is entitled to use must not be
unduly disproportionate to the injury which is
to be averted or which is reasonably
apprehended and should not exceed its
legitimate purpose. The exercise of the right of
private defence must never be vindictive or
malicious.
19. In Horam and others v. Rex4, a division bench
of the Allahabad High Court observed that where a
trespasser enters upon the land of another, the
person in whom the rightful possession is vested,
while the trespasser is in the process of acquiring
possession, may turn the trespasser out of the land
by force and if in doing so, he inflicts such injuries
on the trespasser as are warranted by the
situation, he commits no offence. His action would
be covered by the principle of private defence
embodied in Sections 96 to 105 IPC."
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31. From the careful and circumspect
consideration of all the facts discussed above
cumulatively, this Court is of the opinion that the F.I.R.
filed against the petitioners by respondent no.2 is
nothing but misuse of process of law.
32. This gives inevitable conclusion that Late
Smt. Mahendra Devi was in settled possession of
property in question and after her death,
consequently her children were in settled possession
by way of her WILL and through them V.H.P. came in
unobstructed and settled possession of the property
in question by virtue of the Registered Gift Deed.
33. Now coming to the ambit and scope of
jurisdiction under Section 528 of Bhartiya Nagarik
Suraksha Sanhita (hereinafter to be referred as B.N.S.S.)
vested in the High Court. Section 528 of B.N.S.S. saves
the inherent power 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.
Before promulgation of B.N.S.S., Section 482 of
Criminal Procedure Code was holding this field. This
Section 528 of B.N.S.S. is pari-materia to Section 482 of
Cr.P.C. Therefore, for interpreting the scope of Section
528 of B.N.S.S. the reference and law laid down on
Section 482 Cr.P.C. are relevant.
34. In the case of State of Haryana and others
vs. Bhajan Lal and others, 1992 Supreme Court Cases
(Cri) 426, Hon'ble Apex Court has enunciated that the
High Court can exercise inherent jurisdiction for
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quashing a criminal proceeding, only when the
allegations made in the FIR/ complaint does not disclose
the commission of any offence and makes out no case
against the accused. Hon'ble Apex Court has categorized
cases by way of illustration wherein such power could be
exercised to prevent abuse of the process of law:-
(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.
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(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 or personal grudge.
35. In State of Andhra Pradesh v. Golconda
Linga Swamy, (2004) 6 SCC 522, Hon'ble Apex Court
elaborated on the types of materials the High Court can
assess to quash an FIR. Relevant paragraph of this
judgment is quoted hereunder:-
"5. ...Authority of the court exists for advancement
of justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent such abuse. It would be an
abuse of the process of the court to allow any
action which would result in injustice and prevent
promotion of justice. In exercise of the powers
court would be justified to quash any proceeding
if it finds that initiation or continuance of it
amounts to abuse of the process of court or
quashing of these proceedings would otherwise
serve the ends of justice. When no offence is
disclosed by the complaint, the court may examine
the question of fact. When a complaint is sought to
be quashed, it is permissible to look into the
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materials to assess what the complainant has
alleged and whether any offence is made out even
if the allegations are accepted in toto."
36. In Mahmood Ali and Ors. vs. State of U.P.
Criminal Appeal No.2341 of 2023, decided on
08.08.2023, Hon'ble Apex Court has observed as under:-
"12. At this stage, we would like to observe
something important. Whenever an accused
comes before the Court invoking either the
inherent powers under Section 482 of the Code of
Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution to
get the FIR or the criminal proceedings quashed
essentially on the ground that such proceedings
are manifestly frivolous or vexatious or instituted
with the ulterior motive for wreaking vengeance,
then in such circumstances the Court owes a
duty to look into the FIR with care and a
little more closely. We say so because once
the complainant decides to proceed against
the accused with an ulterior motive for
wreaking personal vengeance, etc., then he
would ensure that the FIR/complaint is very
well drafted with all the necessary
pleadings. The complainant would ensure that
the averments made in the FIR/complaint are
such that they disclose the necessary ingredients
to constitute the alleged offence. Therefore, it will
not be just enough for the Court to look into the
averments made in the FIR/complaint alone for
the purpose of ascertaining whether the
necessary ingredients to constitute the alleged
offence are disclosed or not. In frivolous or
vexatious proceedings, the Court owes a
duty to look into many other attending
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circumstances emerging from the record of
the case over and above the averments and,
if need be, with due care and circumspection
try to read in between the lines. The Court
while exercising its jurisdiction under Section 482
of the CrPC or Article 226 of the Constitution need
not restrict itself only to the stage of a case but is
empowered to take into account the overall
circumstances leading to the initiation/
registration of the case as well as the materials
collected in the course of investigation. Take for
instance the case on hand. Multiple FIRs have
been registered over a period of time. It is in the
background of such circumstances the registration
of multiple FIRs assumes importance, thereby
attracting the issue of wreaking vengeance out of
private or personal grudge as alleged."
37. From the discussion made above, it is quite
clear that the entire case set up by the respondent
no.2/complainant appears to be fabricated and
concocted. The allegations made in the FIR and the
charge-sheet are so absurd and highly improbable that
no prudent person can ever reach to the conclusion that
the incident could have taken place as is alleged in the
charge-sheet and the FIR. That being the position, I am
of the opinion that the instant criminal proceedings are
maliciously instituted against the petitioners by the
respondent no.2/complainant with an ulterior motive for
wreaking vengeance on the petitioners and with a view to
dispossess the petitioners from the property in question.
38. In the result, petition u/s 482 of Cr.P.C. is
allowed. Charge-sheet dated 07.03.2014, the summoning
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order dated 17.06.2014 and the entire proceedings of
Criminal Case No.1904 of 2014 "State vs. Ravi Dev
Anand and others", under Sections 452, 325, 354, 147,
148, 323, 427, 504, 506 of IPC pending in the court of
Judicial Magistrate-I, Dehradun, are hereby quashed.
Writ Petition (Criminal) No.249 of 2024 & Writ
Petition (Criminal) No.318 of 2024
39. By means of Writ Petition (Criminal) No.249 of
2024 and Writ Petition (Criminal) No.318 of 2024,
petitioners seek quashing of FIR/Case Crime No.202 of
2012 dated 11.10.2012 registered at P.S. Nehru Colony,
District Dehradun, under Sections 147, 307, 323, 504 &
506 of IPC with prayer as under:-
(i) Issue a writ, order or direction in the nature of
certiorari quashing the impugned FIR dated
11.10.2012 being Case Crime No.202 of 2012,
registered under sections 147, 307, 323, 504 & 506 of
IPC, Police Station Nehru Colony, District Dehradun
(annexed as Annexure no.1 to this writ petition).
(ii) Issue a writ, order or direction in the nature of
mandamus commanding and directing the respondent
no.2 not to arrest the petitioners in connection with
impugned FIR dated 11.10.2012 being Case Crime
No.202 of 2012, for the offences punishable under
section 147, 307, 323, 504 & 506 of IPC, Police Station
Nehru Colony, District Dehradun (annexed as
Annexure no.1 to this writ petition).
40. The allegations in this above cross FIR
registered against the petitioners by respondent no.3 is
that respondent no.3/complainant is the volunteer of
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Vishwa Hindu Parishad (VHP) and like everyday he was
sitting in his office situated at G-11, Race Course,
Dehradun (hereinafter referred to as "property in
question") with other volunteers; that, on 11.10.2012 at
about 12-12.30 pm petitioners and their associates
entered the office with sticks and other weapons and
threatened respondent no.3/complainant started to
vacate the property in question; that, when the
respondent no.3/complainant and other volunteers
stopped the petitioners and their associates, they called
10-20 more armed people and started beating respondent
no.3/complainant and other VHP workers; that, these
people attacked the complainant on the head with a rod
with the intention to kill him but the respondent
no.3/complainant somehow saved himself from the
attack, but the co-accused Subhash Mittal, standing
behind the complainant, attacked him due to which the
complainant fell down; that, these miscreants started
kicking and punching the complainant; that, when
Dinesh, Mahendra, Abhishek, Rajendra Rajput tried to
save the complainant then petitioners and their
associates attacked these persons also; that, the workers
called the police but the said miscreants kept on
vandalizing the place.
41. The matter was investigated whereafter the
police filed the final report dated 13.05.2013; that,
against the final report, respondent no.3/complainant
preferred a protest petition on 17.07.2014, which was
allowed by the Chief Judicial Magistrate, Dehradun, vide
order dated 22.02.2016, which directed further
investigation in the matter; that, the matter was further
investigated but again final report was filed by the police
on 22.10.2020. Thereafter, the State Government,
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through its letter dated 11.02.2021 written by Additional
Secretary (Home), decided to get the investigation done by
the CBCID and subsequently the said case was
transferred to the Crime Research Bureau vide order
dated 15.02.2021.
42. The petitioners in Writ Petition (Criminal)
No.249 of 2024 also filed the following documents as
annexures:-
(i) Copy of FIR No.202 of 2012 lodged against the
petitioners under Sections 147, 307, 323, 504 &
506 of IPC as Annexure-1.
(ii) Copies of photographs as Annexure-2.
(iii) Copy of FIR No.201 of 2012 lodged by petitioners
against respondent no.3 at P.S. Nehru Colony,
Dehradun and the charge-sheet under Section
452, 325, 354, 323, 147, 148, 506, 506, 427 &
34 of IPC as Annexure-3.
(iv) Copy of final report dated 13.05.2013 as
Annexure-4.
(v) Copy of order dated 22.02.2016 passed on the
protest petition as Annexure-5.
(vi) Copy of letter dated 11.02.2021 written by
Additional Secretary, Government of Uttarakhand
as Annexure-7.
(vii) Copy of order dated 15.02.2021 passed by
Inspector General of Police, Uttarakhand as
Annexure-8.
(viii) Copy of notice dated 19.02.2021 issued by
CBCID to the petitioners as Annexure-9.
(ix) Copy of application dated 20.01.2023 filed by the
petitioners under the RTI Act as Annexure-10.
(x) Copy of information dated 03.02.2023 supplied
to the petitioners by the Public Information
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Officer/Section Officer, Crime Investigation
Department (CID), Dehradun as Annexure-11.
(xi) Copy of orders dated 01.07.2021 and 01.11.2022
passed by this Court as Annexures-12 & 13.
(xii) Copy of FIR No.0584 of 2023, Police Station
Kotwali, Dehradun on 13.12.2023 under Section
420, 467, 468 and 471 of IPC as Annexure-14.
43. Counter affidavit is filed by respondent no.3
reiterating the allegations and facts as was stated in his
Criminal Misc. Application (u/s 482 of Cr.P.C.) No.786 of
2014 for quashing the proceedings of Criminal Case
No.1904 of 2014 of Cross F.I.R. No.201 of 2024 against
respondent no.3 on the complaint of petitioners' father.
44. It is also stated in the counter affidavit that
after the gift deed, the property in question is the
headquarter of V.H.P. and respondent no.3 is a
volunteer/worker of V.H.P.; that, V.H.P. is in peaceful
possession of the said property in question by virtue of
Registered Gift Deed since date of its execution; that, on
11.10.2012 when the petitioners along with others tried
to take possession forcibly of said property and assaulted
the complainant then the instant FIR was lodged against
the petitioners.
45. In para-20 of the counter affidavit, it also is
stated that the second final report was filed on
22.10.2020 but the same was never accepted by the
learned Magistrate and is still pending.
46. Along with the counter affidavit, respondent
no.3/complainant filed the following documents:-
(i) Copy of bail application dated 10.08.2010 as
Annexure-1.
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(ii) Copy of order dated 10.08.2010 passed on the
bail application as Annexure-2.
(iii) Copy of voter list of Ward No.38 Nagar Nigam,
Dehradun as Annexure-3.
(iv) Copy of Voter List of Legislative Assembly,
Doiwala as Annexure-4.
(v) Copy of letter dated 06.03.2018 written by
Senior Manager UCO Bank to Smt. Mahendra
Devi as Annexure-5.
(vi) Copies of obituary as well as the newspaper bills
as Annexure-6.
(vii) Copy of newspaper cutting dated 12.05.2012
published in Amar Ujala as Annexure-7.
(viii) Copy of registered WILL dated 02.05.2012 as
Annexure-8.
(ix) Copy of Gift Deed dated 01.10.2012 as
Annexure-9.
(x) Copy of medical certificate of the applicant as
Annexure-10.
(xi) Order Sheet of Misc. Case No.147 of 2023 before
the court of 2nd ACJM, Dehradun as Annexure-
11.
(xii) Copies of mutation entries of the properties
belonging to Ravi Mittal as Annexure-12.
(xiii) Copy of judgment dated 27.03.2021 as
Annexure-13.
Submissions On Behalf Of Petitioners
47. Learned senior counsel appearing for the
petitioners would submit that the petitioners' name does
not figure in the FIR and only because of the political
pressure and after the death of father of petitioner no.1,
petitioners' names have been illegally dragged in the
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impugned FIR amounting to gross abuse of process of
law.
48. He would further submit that the present FIR
lodged by the respondent no.3/complainant against the
petitioners is nothing but counterblast to the FIR lodged
by the father of petitioner no.1 against the respondent
no.3/complainant, his father and others.
49. He would further submit that twice final report
has been submitted in the matter but despite that the
State Government, in its own wisdom, without assigning
any reason, ordered for reinvestigation of the case
pursuant to which investigation is again being conducted
by the CBCID.
50. He would submit that the act of the
respondent no.1-authorities in reopening the
investigation despite submission of final report twice by
the I.O. is unjustified and illegal and it amounts to abuse
of process of law warranting the quashing of the FIR.
51. He would further submit that the Additional
Secretary (Home) is not empowered to order further
investigation/reinvestigation of a case by a separate
agency. To bolster his submissions, he would place
reliance on a judgment of Hon'ble Supreme Court in the
case of Bohatie Devi (dead) through LR vs. The State
of U.P. & Ors. (2023) SCC Online Sc 525 and would
refer para-22, which is quoted hereunder:-
"22. In any case, as it is a case of reinvestigation, the
same is not permissible and that too by another agency
without the prior permission of the learned Magistrate
even while exercising the powers under Section 173(8)
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of the Cr.P.C. Under what authority of law, the
Secretary (Home) has transferred the investigation to
another agency and/or ordered further investigation by
another agency is not pointed out and that too at the
instance of the accused on the grounds which as
such can be said to be the defences of the accused
which are required to be considered at the time of
trial. The case on behalf of the accused that as the
Secretary (Home) is the head of the department and the
further investigation was ordered by another agency on
administrative side and therefore, the Secretary (Home)
is justified in ordering further investigation by CBCID
cannot be accepted. So far as the investigation is
concerned under the scheme of the Cr.PC, the Police
Officer of the concerned Police Station, who is the
investigating officer, has to investigate/further
investigate the case under the supervision of
Superintendent of Police. So far as the Secretary (Home)
is concerned, he does not come into picture at all. If
such powers are given to the Secretary (Home) in that
case any accused who is already chargesheeted may
approach the Secretary (Home) and may get an order of
further investigation or reinvestigation by another
agency and obtain the fresh report nullifying the earlier
chargesheet and get himself discharged. If the accused
is aggrieved by the chargesheet in that case, the
remedy available to him would be either to file the
quashing petition under Section 482 of Cr.P.C. and/or to
move an appropriate application for discharge before
the learned Magistrate and it is for the High Court
and/or the learned Magistrate as the case may be, to
quash criminal proceedings or discharge the accused.
The Secretary (Home) and/or any accused who is
already chargesheeted cannot be permitted to
circumvent such provision. It is to be noted that in the
present case, respondent No. 8 - accused earlier did
file the quashing petition, but failed.
Submission of Respondent No.3
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52. Per contra, learned counsel for respondent
no.3 would submit that though second final report was
also filed in the case but the same was never accepted by
the Magistrate; that, the Additional Secretary (Home) is
justified in ordering investigation by CBCID. To bolster
his submissions, he would place reliance in the case of
State of Bihar and another vs. J.A.C. Saldanha and
others (1980) 1 SCC 554.
53. He would further submit that the judgment of
Bohatie Devi (supra) is not applicable to the facts of the
present case and the same is also per incuriam as Two
Judges Bench of Hon'ble Supreme Court in Bohatie
Devi's case (supra) did not consider the judgment of
Three Judges Bench of Hon'ble Supreme Court in J.A.C.
Saldanha Case (supra).
54. Considered and perused the record of WPCRL
No.249 of 2024 and WPCRL No.318 of 2024
circumspectly.
55. At very inception itself, it would be pertinent to
revisit the prayer made by the petitioners in both the
petitions. In WPCRL No.249 of 2024, as reproduced
above, prayer is for issuance of writ or directions in the
nature of certiorari to quash the FIR dated 11.10.2012
registered in Police Station, Nehru Colony, Dehradun and
for a direction to respondent no.2 not to arrest the
petitioners in connection with the same FIR. Similarly,
in WPCRL No.318 of 2024, prayer is almost verbatim
same. It is also important to note that the second final
report has not been accepted and the protest application
of respondent no.3/complainant is pending disposal.
That is to say both these writ petitions are not filed
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for quashing of the order passed by the Additional
Secretary, Government of Uttarakhand dated
11.02.2021 (Annexure-7 of this petition) addressed
to Director General of Police, Uttarakhand, thereby
directing him to get the Case Crime No.202/2012
under sections 147, 307, 323, 504 & 506 of IPC,
registered at Police Station Nehru Colony, District
Dehradun reinvestigated by CBCID but under
challenge is only the FIR NO.202/2012 and not the
Annexure-7. Therefore, the only ground taken and
submitted by learned Senior Counsel for the petitioners
relying upon the law laid down in Bohatie Devi Case
(Supra) is not applicable in the present facts and
circumstances in view of the relief prayed for in these two
writ petitions.
Moreover, Hon'ble Supreme Court in Bohatie
Devi's case (supra) dealt with the situation where the
mother of the co-accused, who had been charge-sheeted
in a murder case and whose petition for quashing the
charge-sheet had already been dismissed, filed an
application before the Government whereupon the
Secretary (Home) had transferred the investigation to the
CBCID and the CBCID in its subsequent investigation
virtually acquitted the co-accused i.e. son of Bohatie Devi
thereby nullifying the charge-sheet against him on the
basis of grounds which could have been the defences of
the accused in the trial.
However, in the present case, the facts are
entirely different. In the present case, the matter pertains
to the incident of 11.10.2012 in which cross FIRs were
registered. FIR/Case Crime No.202/2012 lodged against
the petitioners and his associates was for their alleged
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criminal act of using force to dispossess the respondent
no.3 and his associates from the property in question,
the possession of which they have got by virtue of
Registered Gift Deed and the WILL.
In the present case, the application is not
moved by the accused, but it is moved by the
complainant who is not satisfied with the investigation
carried out by the Police and final report was filed before
the Magistrate.
It would also be apt to note that the judgment
of Hon'ble Supreme Court in re State of Bihar and
another vs. J.A.C. Saldanha and others (1980) 1 SCC
554 was a Constitutional Bench Judgment delivered by
three Judges Bench of Hon'ble Supreme Court whereas
the judgment of Bohatie Devi (dead) through LR vs.
The State of U.P. & Ors. (2023) SCC Online Sc 525
was delivered by Two Judges Bench of Hon'ble Supreme
Court.
56. In J.A.C. Saldanha case (supra), the Hon'ble
Supreme Court dealt with a situation where some
unscrupulous officers of Railway Department, in order to
give benefit to one of the big business house of India
TISCO, defrauded the Railway of its legitimate revenue
and the case was registered and investigation was done
by the Railway Police. Thereafter, the investigation was
transferred to DIG of the Regular Police that virtually
exonerated the employees of that business house. But,
on the letter of some of the MLAs and MLCs of State of
Bihar to the Chief Minister, the matter was directed on
the direction of Chief Secretary of the State of Bihar to be
reinvestigated by the Railway Police. As the officials of
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that business house were uncomfortable with the
investigation by the Railway police, they challenged the
order of Chief Secretary. In this judgment, Hon'ble
Supreme Court in para 6 and 10 observed formulated
following issues:-
"6. Two substantial questions arise in these appeal : (1a)
Whether the State Government was competent to direct
further investigation in a criminal case in which a report
was submitted by the investigating agency under section
173(2) of the Code of Criminal Procedure, 1973 ("Code" for
short) to the Magistrate having jurisdiction to try the
case?............ (2) Whether, when the investigation was in
progress the High Court was justified in interfering with the
investigation and prohibiting or precluding further
investigation in exercise of its extraordinary jurisdiction
under Article 226 of the Constitution?
........................
........................
10. The first question is whether the State Government was
precluded from directing further investigation in the case in
which one investigating officer had submitted a report
under Section 173(2) of the Code but on which the Court
had not passed any order?"
On these issues, the Hon'ble Supreme Courtin
para-13, 14 & 16 observed that:-
"13. It was, however, contended that State Government
has no power to direct further investigation, that being the
power of the officer in charge of a police station under sub-
section (8) of Section 173 of the Code, or the power of the
Magistrate to direct further investigation under sub-section
(3) of Section 156, and, therefore, the State Government
under orders of the Chief Minister was not competent to
direct further investigation in the case.
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14. The State of Bihar is governed by the Indian Police
Act, 1861, ("Act" for short), because it has not enacted any
Police Act of its own. In Section 1 of the Act the word
"Police" is defined to include all persons who shall be
enrolled under the Act and the words "general police
district" are defined to embrace any presidency, State or
place, or any part of any presidency, State or place, in
which the Act shall be ordered to take effect. Section 3 of
the Indian Police Act provides as under:
"3. The superintendence of the police throughout a
general police district shall vest in and, shall be
exercised by the State Government to which such
district is subordinate; and except as authorized
under the provisions of this Act, no person, officer or
court shall be empowered by the State Government to
supersede or control any police functionary."
......................
"16. The general power of superintendence as conferred by
Section 3 would comprehend the power to exercise effective
control over the actions, performance and discharge of
duties by the members of the police force throughout the
general district. The word "superintendence" would imply
administrative control enabling the authority enjoying such
power to give directions to the subordinate to discharge its
administrative duties and functions in the manner indicated
in the order. It is only when a subordinate authority subject
to superintendence is discharging duties and functions of a
quasi-judicial character under a statue that the inhibition of
abdication of such power can be invoked. But where the
subordinate subject to such power of superintendence of
the superior is discharging administrative and executive
functions, obligations and duties, the power of
superintendence would comprehend the authority to give
directions to perform the duty in a certain manner, to refrain
from performing one or the other duty, to direct someone
else to perform the duty and no inhibition or limitation can
be read in this power unless the section conferring such
power prescribes one.........."
2024:UHC:8677
In para-17 of this judgment, Hon'ble Supreme
Court further observed that:-
"17. The High Court construed the expression
"superintendence" in Section 3 of the Act to mean "general
supervision of the management of the police department
and does not vest the State Government with authority to
decide what the police alone is authorized to decide." There
is nothing in the Act to indicate such a narrow construction
of the word 'superintendence'. Nothing was pointed out to
us to put a narrow construction on this general power of
superintendence conferred under the Act on the State
Government and there is no justification for limiting the
broad spectrum of power comprehended in power of
superintendence. Accordingly superintendence would
comprehend the power to direct further investigation if the
circumstances so warrant and there is nothing in the Code
providing to the contrary so as to limit or fetter this power.
Sub-section (8) of Section 173 was pressed into service to
show that the power of further investigation after the
submission of a report under Section 173(2) would be with
the officer in charge of a police station. Sub-section (8) of
Section 173 is not the source of power of the State
Government to direct further investigation. Section 173(8)
enables an officer in charge of a police station to carry on
further investigation even after a report under Section
173(2) is submitted to Court. But if State Government has
otherwise power to direct further investigation it is neither
curtailed, limited nor denied by Section 173(8), more so,
when the State Government directs an officer superior in
rank to an officer in charge of police station thereby
enjoying all powers of an officer in charge of a police station
to further investigate the case. Such a situation would be
covered by the combined reading of Section 173(8)
with Section 36 of the Code. Such power is claimed as
flowing from the power of superintendence over police to
direct a police officer to do or not to do a certain thing
because at the stage of investigation the power is enjoyed
as executive power untrammeled by the judiciary...."
2024:UHC:8677
After having made above observations, the
Hon'ble Supreme Court further observed in para 22 & 25
observed that:-
"22. As pointed out above, if the Chief Secretary as the
highest executive officer at the State level exercising power
of superintendence over the police of the State posted in
general police district would have powers to suggest change
of investigating machinery in the circumstances disclosed in
the letter dated May 11, 1977, of the D.I.G., Railway, the
report of the Commissioner of South Chhotanagpur Division,
and the complaint of MLAs/MLCs, his action could not be
said to be without power or authority. In our opinion, if he
had acted otherwise, a charge of inaction or failure or
default in performance of his duty as the highest chief
executive officer would be squarely laid at his door. He
acted in the best tradition of the Chief executive officer in
public interest and for vindication of truth and in an honest
and unbiased manner........"
25. There is a clear-cut and well demarcated sphere of
activity in the field of crime detection and crime
punishment. Investigation of an offence is the field
exclusively reserved for the executive through the police
department the superintendence over which vests in the
State Government. The executive which is charged with a
duty to keep vigilance over law and order situation is
obliged to prevent crime and if an offence is alleged to have
been committed it is its bounded duty to investigate into the
offence and bring the offender to book."
57. By reading of the Judgment of Hon'ble
Supreme Court in re Bohatie Devi case (supra), it
appears that the learned counsels for the parties did not
mention the judgment passed by Constitutional Bench of
Hon'ble Supreme Court in J.A.C. Saldanha case (supra)
and therefore it was not considered by the Hon'ble
Supreme Court in Bohatie Devi case (supra).
2024:UHC:8677
58. At this stage, it is opportune to refer the
Uttarakhand Police Act, 2007 in the light of above
observations and the law laid down by Hon'ble Supreme
Court in J.A.C. Saldanha (supra).
Section 19 of the Uttarakhand Police Act, 2007
(hereinafter to be referred as the "Act") reads as under:-
"19. Superintendence over the Police Force
Notwithstanding anything contained in any law, the State
Government shall exercise power of superintendence over the
Police Force in respect of all matters."
This Section is pari materia to Section 3 of the
Indian Police Act, 1861, which was applicable in the case
of J.A.C. Saldanha. In the present case, when the
application was made by respondent no.3 to the Chief
Minister then in the lawful exercise of the power of State
as enshrined in Section 19 of the Act, the State
Government exercised its power of superintendence over
the police and therefore the letter dated 11.02.2021 of
the Additional Secretary, State of Uttarakahnd to the
D.G.P. for conducting investigation of the case by CBCID
is completely justified.
59. At this stage, it would not be out of place to
refer to the order dated 22.02.2016 passed in Misc. Case
No.134/2024 passed by C.J.M. Dehradun on the protest
application in FIR No.202/2012 stated above. While
accepting the protest application of the
complainant/respondent no.3, learned C.J.M. Dehradun
has restated the allegations made by respondent no.3 in
his protest application that the Investigating Officer did the
investigation and filed the final report in order to give benefit
to the petitioners/accused; that, the petitioenrs/accused had
2024:UHC:8677
attacked with intention of killing the respondent/complainant
for which he had to get 7 stitches on his head. After hearing
the respondent no.3/complainant and going through the
record of the final report, learned C.J.M. directed to
reinvestigate the matter u/s 173(8) of Cr.P.C. vide order
dated 22.02.2016. But, the final report closing the matter
was again filed by the Investigating Officer. Therefore,
aggrieved complainant was well within his legal right to
write the letter to the State Government for proper,
correct and unbiased investigation as per law.
60. In the facts and circumstances of present case
in the light of law enunciated by the Hon'ble Supreme
Court in J.A.C. Saldanha (supra), this Court is of the
view that the State Government was well within its
jurisdiction to exercise its power of superintendence over
the police force to order for proper investigation as per
law.
61. At the cost of repetition, it is reiterated that
these writ petition are not filed for quashing of the letter
of Additional Secretary, State of Uttarakhand dated
11.02.2021 (Annexure-7) but for quashing of the FIR, but,
the counsel for the petitioners did not raise any other
ground for quashing of the FIR except that the order of
State Government directing investigation/ further
investigation/reinvestigation in the matter vide its letter
dated 11.02.2021 Annexure-7 is unjustified and
impermissible in law.
62. Last but not least, this Court cannot be
oblivious of the fact that the second final report of
closure filed by the I.O. has not been accepted by the
trial court, therefore, at this stage this Court does not
2024:UHC:8677
think it fit to go into the merit of that aspect as it would
amount to usurping the jurisdiction of Magistrate
concerned. It is also not correct that petitioners of
WPCRL No.249 of 2024 are not named in F.I.R. The other
allegation made in these two writ petitions are the
possible defences of the petitioners in WPCRL No.249 of
2024 and WPCRL No.318 of 2024, therefore, subject to
proof at the anvil of trial.
63. For the foregoing reasons, the WPRCL No.249
of 2024 and WPCRL No.318 of 2024, being devoid of any
merit, are hereby dismissed.
(Vivek Bharti Sharma, J.)
21.11.2024
Rajni
RAJINI
UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=97cfa6e4cbd49c07b876db4
8448ac3701a9ae475a2547e4b7f1d9
b1f17d01342, postalCode=263001,
GUSAIN
st=UTTARAKHAND,
serialNumber=8D039BC77BD1A222
2B4DF4FC80D4557562F95BEBA013F
530616A158A0A878BD8, cn=RAJINI
GUSAIN
Date: 2024.11.21 17:46:47 +05'30'
