Nafr High Court
Case Details
1 2025:CGHC:1463 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1774 of 2018 1 - Lakhan Singh S/o Late Shri Lallu Singh Aged About 48 Years R/o- Ward No. 47, Indira Nagar, Jamanipali, P.S. Darri, District- Korba, Chhattisgarh. 2 - Sanjay Singh @ Sanju Singh, S/o. Late Shri Lallu Singh Aged About 30 Years R/o- Ward No. 47, Indira Nagar, Jamanipali, P.S. Darri, District- Korba, Chhattisgarh. 3 - Smt. Manisha Singh W/o Sanjay Singh Aged About 30 Years R/o- Ward No. 47, Indira Nagar, Jamanipali, P.S. Darri, District- Korba, Chhattisgarh. 4 - Smt. Anju Singh @ Manju Singh W/o Lakhan Singh Aged About 40 Years R/o- Ward No. 47, Indira Nagar, Jamanipali, P.S. Darri, District- Korba, Chhattisgarh. 5 - Smt. Sudha Singh @ Yashoda Devi (Died And Deleted) (As Per Hon'ble Court Order Dated 15-07-2024), District : Korba, Chhattisgarh ... Petitioner(s) versus 1 - State Of Chhattisgarh Through- P.S. Anusuchitjati, Kalyan, Korba, District- Korba, Chhattisgarh. 2 - Smt. Firteen Bai W/o Shri Saheb Lal Aged About 45 Years R/o- Indira Nagar, Jamanipali, P.S. Darri, District- Korba, Chhattisgarh. ... Respondent(s) KUNAL DEWANGAN Digitally signed by KUNAL DEWANGAN 2 For Petitioner(s) For Respondent(s) : Mr. Amit Verma, Panel Lawyer For Objector(s) : Mr. Sameer Singh, Advocate : Mr. Mayank Chandrakar, Advocate
Legal Reasoning
"in our considered opinion a stage has come in this Country where Sec,. 156(3), Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advise to verify the truth and also can verify the veracity of allegations. This affidavit can make the applicant more responsible. We are compel to say so as such kind of applications are being filed in a routine manner without taking any responsibly whatsoever only to harass the certain persons. That apart it becomes more disturbing and alarming when one tries to pickup people who are passing orders under statutory provision which can be challenged under the frame work of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a Criminal Court as if somebody 5 is determine to settle the scores. We have already indicated that, there has to be prior application U/Sec. 154(1) & (3) while filing a petition U/Sec. 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed." 6. He further submits that the learned trial Court failed to consider that, the direction by the Magistrate for investigation or registration of an F.I.R. cannot be given mechanically. The Hon'ble Apex Court in case of Maksudan Saiyed (2008) 5 SCC 668, examineed the requirement of the application of mind by the Magistrate before exercising the jurisdiction under 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) ог Section 200, Cr.P.C., the Magistrate is required to apply his mind. The order mere statement that he has gone through the complaint, documents and heard the complainant. As such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3), Cr.P.C., should be reflected in order, though a detailed expression of his views is neither required nor warranted. The Hon'ble Apex Court has in Case of Priyanka Shrivastava V/s. State of U.P. (supra) directed to comply with the personal affidavit to be filed by the complainant and explicitly issued a direction to the Chief Justices of all the High Courts and Session Courts for remaining more vigilant and diligent while exercising the power under 6 Section 156(3), Cr.P.C. Lastly, the learned trial Court failed to consider that, as per the evidence and documents on record the complainant is in illegal possession in the some part of the land bearing khasra no. 231/4 belonging to Smt. Shabnam Sinha and 231/1 belonging to Sudha Singh and prior to the date of said incident the complaint was made with regards to threats for falsely implicating in criminal cases. It is pertinent to mention here that, on different dates i.e. 06.01.2014, 13.02.2014, 30.08.2014, 21.07.2016, 01.08.2016, 15.03.2017, 16.03.2017, 20.03.2017 & 25.03.2017 complaints have been made before the different authorities including Police Station, Darri, Commissioner, nagar Palik Nigam Korba, Supretendent of Police, C.S.P., Korba by the petitioners as well as other villagers, in same it has also been mentioned that, the complainant has also done encroachment in the Government land. 7. On the other hand, learned counsel appearing for respondent No.2 opposes the submissions made by learned counsel appearing for the petitioners and submits that the respondent No. 2 is residing with her son and is always subjected to atrocities. It was further stated that, on 11.02.2014, the accused persons have threaten and beaten them, of which she made complaint before the police authorities but the complaint was not registered and again on 26.03.2017, again the accused persons have beaten her and have also intimidated to leave the locality otherwise will have to face dire consequences. It was also stated that, the 7 complainant made complaint before the police authority but the police authority have instead of lodging the FIR only done proceedings under Section 155 of Cr.P.C. It was further pleaded that, the act committed by the accused persons are grievous in nature therefore to register the case for the said offences and to direct the concerning police for appropriate action. With the said direction, the FIR was registered against the petitioners. Further, the FIR discloses cognizable offences against the petitioners, which needs to be taken to a logical end, hence, the petition filed by the petitioners deserves to be rejected. 8. We have heard learned counsel for the parties and perused the documents appended with this petition. 9. The Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335 laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: - “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated 8 by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1)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. if and other materials, (2)Where the allegations in the first information any, report 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 9 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. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 10. The Supreme Court in the matter of Manoj Kumar Sharma and others v. State of Chhattisgarh and others, (2016) 9 SCC 1 held as under:- “35. While discussing the scope and ambit of Section 482 of the Code, a similar view has been taken by a Division Bench of this Court in Rajiv Thapar and others vs. Madan Kal Kapoor (2013) 3 SCC 330 wherein it was 10 held as under:- “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It 11 should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the 12 assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5 If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arisingt therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” 11. In the matter of Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673, the Supreme Court recognized that although the 13 inherent powers of a High Court under Section 482 of the Code of Criminal Procedure should be exercised sparingly, yet the High Court must not hesitate in quashing such criminal proceedings which are essentially of a civil nature. It was held as under: “12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” (emphasis supplied) 12. Relying upon the decision in Paramjeet Batra (supra), the Supreme Court in Randheer Singh v. State of U.P., (2021) 14 SCC 626, observed that criminal proceedings cannot be taken recourse to as a weapon of harassment. In Usha Chakraborty & Anr. v. State of West Bengal & Anr., 2023 SCC OnLine SC 90, relying upon Paramjeet Batra (supra) it was again held that 14 where a dispute which is essentially of a civil nature, is given a cloak of a criminal offence, then such disputes can be quashed, by exercising the inherent powers under Section 482 of the Code of Criminal Procedure. 13. From perusal of the order dated 10.05.2017 framing charges against the petitioner, it transpires that the concerning Magistrate without considering the fact that as per Section 156(3), the complaint made by the complainant is to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate, whereas in the case in hand the complaint of the Respondent no. 2 has not been supported by any duly sworn affidavit, which is now a mandatory requirement for the same. Further, as per the evidence and documents on record, the complainant is in illegal possession in the some part of the land bearing khasra No. 231/4 belonging to Smt. Shabnam Sinha and 231/1 belonging to Sudha Singh and prior to the date of said incident the complaint was made with regards to threats for falsely implicating in criminal cases. Also, on different dates, complaints have been made before the different authorities including Police Station, Darri, Commissioner, nagar Palik Nigam Korba, Supretendent of Police, C.S.P., Korba by the petitioners as well as other villagers, in same it has also been mentioned that, the complainant has also done encroachment in the Government land. Hence, the allegations made in the impugned FIR are absurd and do not constitute a cognizable offence. 14. Considering the submissions made by learned counsel for the 15 parties and in view of law laid down by the Supreme Court in the above-stated judgments (supra), this Court is of the considered opinion that the allegations made in the FIR are inherently improbable and the evidence collected in support of the same do not disclose the commission of a cognizable offence and make out a case against the petitioners herein. In the case in hand, malicious prosecution was instituted by respondent No.2 against the petitioners. 15. For the foregoing reasons, the criminal proceedings pending before the Court of learned Special Judge (S.C. / S.T., Act), Korba, District- Korba arising out of Crime No. 19/2018 for offence under Sections 456, 384, 323, 294, 427 and 506 of the IPC and Section 3(1)(x) of SC/ST (Prevent of Atrocities) Act against the petitioners is hereby quashed. 16. The petitions under Section 482 CrPC are allowed to the extent indicated hereinabove. Sd/- Sd/- (Ramesh Sinha) Chief Justice Kunal
Arguments
Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 09.01.2025 1. Heard Mr. Mayank Chandrakar, learned counsel for the petitioners. Also heard Mr. Amit Verma, learned Panel Lawyer appearing for respondents No.1/State and Mr. Sameer Singh, learned counsel appearing for respondent No.2. 2. The petitioner has filed this petition with the following prayer: “ It is therefore prayed that this Hon'ble Court may be pleased to allow this petition and quash the entire proceedings of the Special Criminal Case No. 19/2018 pending before the Learned Special Judge (S.C./S.T., Act), Korba, Distt. Korba in the interest of Justice.” 3. Brief facts necessary for disposal of the case as per complainant averments made in complaint, it was stated by the Respondent No. 2 that, she is a resident of Indira Nagar, Jamanipali and is residing with her son and is always subjected to atrocities. It was further stated that, on 11.02.2014, the accused persons have threaten and beaten them, of which she made complaint before the police authorities but the complaint was not registered and again on 26.03.2017, again the accused persons have beaten her and have also intimidated to leave the locality otherwise will have 3 to face dire consequences. It was also stated that, the complainant made complaint before the police authority but the police authority have instead of lodging the FIR only done proceedings under Section 155 of Cr.P.C. It was further pleaded that, the act committed by the accused persons are grievous in nature therefore to register the case for the said offences and to direct the concerning police for appropriate action. After filing the said complaint the concerning Magistrate by deriving its power under Section 156(3) of Cr.P.C. without appreciating the documentary evidence on record and without application of Judicial Mind passed the order on 10.05.2017 and directed the P.S. AJAK, Korba to register the case against the petitioner and co-accused persons offence Under Sec. 456, 323, 294, 427, 506(B) of I.P.C. and Sec. 3(1)(d) & 3(1)(e) of SC/ST (Prevention of Atrocities) Act. Hence this petition. 4. Learned counsel for the petitioners submits that the courts below has erred in law in passing the orders for registration of FIR because as per the documents on record the said offence was committed in the year 2014 but the delay has not been explained properly. The courts below, while exercising the power under Section 156(3), has narrated the allegations and, thereafter, without application of mind, has passed an order to register an FIR for the offences mentioned in the complaint, the duty caused on the learned Magistrate while exercising the power under Section 156(3) cannot be marginalized to understand the real 4 purport of the same. Further, the learned trial Court failed to consider that, as per Sec. 156(3), the complaint made by the complainant is to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate, whereas in the case in hand the complaint of the Respondent no. 2 has not been supported by any duly sworn affidavit, which is now a mandatory requirement for the same. 5. Learned counsel for the petitioner also relied upon the judgment passed by the Hon’ble Apex Court in the matter of Priyanka Shrivastava V/s. State of U.P. AIR (2015) SC 1758, whereby the Hon'ble Apex Court has specifically held that-