Criminal Misc. No. M-31709 of 2008 v. State of Haryana

with Mr. Vaibhav Parashar, Advocate, for the petitioners. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for respondent No. 1 – State. Mr. Arun Yadav, Advocate, for respondent No. 2. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing FIR No. 29, dated 13.03.08, under Section 380 IPC, P.S. Sadar Rewari (Annexure P6), and the subsequent proceedings, arising out of the same, has been filed by the petitioners.

2. The facts, in brief, are that, on 07.12.07, Surender Yadav, Criminal Misc. No. M-31709 of 2008 2 purchased a plot, measuring 2 kanals 12 marlas, situated near ITI, in village Gokalgarh, from Ajay Kumar son of Rama Devi daughter of Braham Dutt and Suresh Devi daughter of Jagdish son of Ram Sarup, Gokalgarh, in which, he had installed a tin shed. It was stated that, on the night intervening 11/12.03.08, Surender and Teeka Ram, petitioners, committed theft of the tin shed, installed, by the complainant, in his plot. It was further stated that the occurrence was witnessed by one Prithpal son of Siya Nand resident of Gokalgarh. It was further stated that the petitioners, were many a time, asked to return the tin shed, but to no avail. Ultimately, the aforesaid FIR, was got registered, by the complainant, against the petitioners.

3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully.

4. The Counsel for the petitioners, submitted that, from the allegations, contained in the FIR, no offence, punishable under Section 380 IPC, was constituted. He further submitted that the criminal proceedings, instituted against the petitioners, are manifestly attended with malafides. He further submitted that the Police, did not investigate the matter, in a proper manner. He further submitted that the FIR, was lodged, by the complainant/respondent No. 2, as a counter-blast, to the Civil Suit, filed by them (petitioners) and the DDR dated 01.03.08, lodged by them. He further submitted that a Local Commissioner, was appointed, in the Civil Suit, who went to the spot, on 01.03.08, and made a report, that no tin shed, was in existence, in the property, in dispute. He further submitted Criminal Misc. No. M-31709 of 2008 3 that since the tin shed, was not in existence, in the property, in dispute, as on 01.03.08, the question of committing theft of the same on the night intervening 11/12.3.2008, by the petitioners, did not at all arise. He further submitted that, even the Civil Court, held the petitioners, to be in possession of the property, in dispute, and, as such, the question of erecting any tin shed, by the complainant/respondent No. 2, therein, did not at all arise. He further submitted that continuation of the FIR and the subsequent proceedings, would amount to sheer abuse of the process of the Court, and the same be quashed.

5. On the other hand, the Counsel for the respondents, submitted that the FIR, was registered, after due investigation, by the Investigating Agency. They further submitted that, during the course of investigation, recovery of stolen articles, was effected, from the petitioners, vide recovery memo dated 04.08.08. They further submitted that, had the theft, been not committed, by the petitioners, the question of recovery of the stolen articles, from them, which were taken into possession, vide memo dated 04.08.08, would not have at all arisen. They further submitted that the FIR and the subsequent proceedings, therefore, would not amount to sheer abuse of the process of the Court. They further submitted that, the allegations, contained in the FIR, constituted the commission of cognizable offence.

6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered Criminal Misc. No. M-31709 of 2008 4 opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice, has to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations set out, in the complaint, or the charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in the following category of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere, in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However, this Criminal Misc. No. M-31709 of 2008 5 power should be exercised sparingly, and that too, in the rarest of rare cases: 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 Criminal Misc. No. M-31709 of 2008 6 of a Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegtions in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon Criminal Misc. No. M-31709 of 2008 7 and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

7. Now adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable, to the same, or not. In the FIR, it was in clear-cut terms stated, by the complainant, that he had erected one tin shed, over the property, in dispute, which was taken away therefrom, by Surender and Teeka Ram sons of Manohar Lal, petitioners, on the night intervening 11/12.03.08. The subsequent recovery of the stolen articles, from the petitioners, by the Police, during the course of their interrogation, clearly proved, that the allegations, contained in the FIR, were prima-facie correct. Had the articles been not allegedly stolen, by the petitioners, referred to, in the FIR, the question of recovery thereof, from the petitioners, would not have arisen. Reference was made, to the report of the Local Commissioner. That report was ex-parte. The evidentiary value thereof, is yet to be finally determined, by the concerned Court, at the relevant time. At the time of deciding the petition, under Section 482 Cr.P.C., the Court, is only required to look into the allegations, contained in the FIR, and the documents, attached therewith, by the Investigating Agency. The Court, cannot go into the probable defence of the accused. Even the disputed questions of fact, cannot be determined, by the Court, while deciding the petition, under Section 482 Cr.P.C. Criminal Misc. No. M-31709 of 2008 8 The FIR, was, therefore, neither a counter-blast, to the Civil Suit, nor to the DDR, so lodged, by the petitioners, against the complainant/respondent No. 2. The allegations, contained in the FIR, constituted the cognizable offence. The FIR, was also not attended with malafides. The continuation of the FIR and the subsequent proceedings, therefore, shall not amount to sheer abuse of the process of the Court, and, therefore, are not liable to be quashed.

8. For the reasons recorded above, Criminal Misc. No. M- 31709 of 2008, being devoid of merit, must fail, and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case.

9. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned.

26.02.2010 Amodh (SHAM SUNDER) JUDGE