1 [CASE NUMBER]. HIGH COURT OF MADHYA PRADESH BENCH GWALIOR S.B : Hon'ble Mr. Justice [ENTITY] M.Cr.Case No.13129/2016. [ENTITY] Kushwah & others. Vs. State of M.P.
Shri [ENTITY] counsel for the applicants. Shri [ENTITY], PP for the respondent/State.
O R D E R. (Passed on 24nd April, 2017) This application under [SECTION] of [ACT] has been filed for quashing the FIR in [CASE NUMBER] registered by Police Station Madhoganj, District Gwalior for the offences punishable under [SECTION], [SECTION] and [SECTION] read with [SECTION] of [ACT] as well as the charge-sheet filed by the police.
Necessary facts for the disposal of the present application in short are that the complainant [ENTITY] lodged a written complaint to the police that he is in possession and title holder of the agricultural land bearing Survey No.182 area 0.31 Hectares, Survey No. 183/1 area 0.070 hectares, Survey No.144 area 0.031 Hectares and Survey No.148 Area 0.010 Hectares which is situated in village Ajaypur Gwalior. It was alleged that the name of the complainant is also recorded in the revenue records but the applicants are trying to take possession of the said land by force. The applicants have also filed a civil suit and in that civil suit, an application for grant of temporary injunction has already been rejected by the Civil Court and the appeal filed by the applicants has also been dismissed by the appellate court. It was alleged that on 2 [CASE NUMBER].
16.5.2016 at about 10 in the night, the applicants tried to take forcible possession of the land in dispute and they were armed with deadly weapons. When complainant and his sons tried to stop them at that time, the applicant [ENTITY] started abusing complainant and assaulted him by slapping.
When the police did not take any action in the matter, therefore, the complainant filed a writ petition before this Court which was registered as [CASE NUMBER] and this Court vide order dated 16.7.2016 observed as under :
"In the light of the decision rendered by Division Bench of this Court in [PRECEDENT] dated 13.7.2016, wherein it is held that if a cognizable offence is reported to the police, then the police is bound to register an FIR in the light of the law laid down by the Supreme Court in the case of [ENTITY] Vs. Government of Utter Pradesh and others, reported in (2014) 2 SCC 1, it is directed that respondent No.4 will inquire into the matter and if on inquiry the authorities are satisfied that the complaint discloses commission of a cognizable offence, then SHO shall proceed in terms of the law laid down in the case of [ENTITY] (Supra). It is made clear that this Court has not expressed any opinion on the merits of the case as to whether complaint discloses any cognizable offence or not"
It is further submitted that although, the High Court had not given any specific direction but in the light of the order passed by this Court, the police authorities registered the FIR on 23.7.2016 and after completing investigation, the police has filed the charge-sheet.
Challenging propriety and correctness of the FIR as well as the charge-sheet filed by the police against the applicants, it is submitted by counsel for the 3 [CASE NUMBER].
applicants that in fact, the present FIR is nothing but an attempt to harass and falsely implicate the applicants with an intention so that the applicants may give up their claim over the land in dispute. It is further submitted that the dispute is of civil in nature and by lodging FIR, the complainant had tried to convert it into a criminal case. It is further submitted by counsel for the applicants that the malafide of the informant is writ large from the fact that including this case, total three criminal cases were got registered against the applicants and in one case, the applicants have already been discharged by the trial court whereas, in the second case, the applicants have already filed a criminal revision before this court against the order framing charge. It is further submitted that in fact, no injury was caused to the complainant and no MLC was got done by the police.
To buttress his contention, the counsel for the applicants relied upon the judgment of the Supreme Court in the case of [PRECEDENT].
Per contra, counsel for the State submitted that the malafides of the informant cannot be a sole ground for quashing the legitimate prosecution of the applicants. Where the allegations made in the FIR clearly disclose the commission of cognizable offence, then, malafides of the informant looses it's importance. It is further submitted that in the case diary statements of the witnesses they have specifically stated that the complainant was slapped by the applicants and since no external injury was received by 4 [CASE NUMBER].
the complainant therefore, there was no need for getting the MLC of the complainant done.
Heard learned counsel for the parties. Undisputed facts of this case are that the civil suit is going on between the parties in respect of certain piece of agricultural land and the application filed by the applicants for grant of temporary injunction has already been rejected by the trial court and the misc. appeal filed by the applicants has also been dismissed by the appellate court. Thus, apparently, there is a finding by the civil court that the applicants have no prima facie case or balance of convenience in their favour and they have also failed to make out a case to show that they would suffer irreparable loss. Merely because a civil suit is pending between the parties would not mean that any other case against the applicants which is otherwise criminal in nature cannot be registered by the police authorities. So far as the allegations against the applicants are concerned, it is alleged that inspite of rejection of their application for grant of temporary injunction, they are trying to forcibly dispossess the complainant and while making attempt to do so, they had assaulted the complainant. Beating a person for whatever reason cannot be said to be a case of civil in nature. It is purely a case of criminal in nature therefore, the contention of the counsel for the applicants that by lodging FIR in question, the complainant had tried to convert the civil case into a criminal case cannot be accepted. So far as malafides of the complainant is concerned, counsel for the applicants has relied upon the judgment of Supreme Court passed in the case of [PRECEDENT]
(Supra).
The question for determination is that where the FIR discloses commission of cognizable offence and where, the allegations prima facie make out a case against the accused persons then whether the malafides of the complainant can be the sole criteria to stifle a legitimate prosecution.
The Supreme Court in the case of [ENTITY] Vs. Sanjay Kumar and Others reported in (2008) 12 SCC 346 has held as under :
"Learned Single Judge after referring to a judgment of this Court in [PRECEDENT] held that the present case is a clear example of malafide where the proceedings have been maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. Reference has been made to the matrimonial case stating that the same was filed earlier to the lodging of the FIR.
In support of the appeal learned counsel for the appellant submitted that the parameters for exercise of jurisdiction u/[SECTION] of the [ACT] have not been kept in view by learned Single Judge, further he lost sight of the fact that the [CASE NUMBER] was dismissed long before the disposal of the case before the High Court. The matrimonial suit was dismissed on 12.10.2004 whereas the impugned judgment has been passed on 19.12.2005.
There is no appearance on behalf of the respondents in spite of service of notice. Exercise of power u/[SECTION] of the [ACT] in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of [ACT] It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under [ACT], (ii) to prevent abuse of the 6 [CASE NUMBER].
process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of "quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. 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 the power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/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 report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.
7 [CASE NUMBER].
In [PRECEDENT] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under [SECTION] [ACT], the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under [SECTION] [ACT] and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC
335). A note of caution was, however, added that the power should be exercised sparingly 8 [CASE NUMBER].
and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows:
(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] of the Code except under an order of a Magistrate within the purview of [SECTION] 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] 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 Act concerned (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 Act concerned, 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."
9 [CASE NUMBER].
As noted above, the powers possessed by the High Court under [SECTION] [ACT] are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision, in exercise of this power, is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings".
(See [PRECEDENT], [PRECEDENT], [PRECEDENT] , State of Kerala v. O.C. Kuttan (1999(2) SCC 651), [PRECEDENT], Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC
397), [PRECEDENT] and [PRECEDENT]
If the allegations made against the applicants in the FIR as well as the charge-sheet are considered in the light of the judgment passed by Supreme Court in the case of [ENTITY] (Supra), it would be clear that the allegations are that in order to take forcible possession of the land in dispute, in respect of which, a civil suit is pending between the parties, the applicants used abusive language and slapped the complainant. It is contended by the counsel for the applicants that in the FIR the complainant made an exaggerated allegation that there was attempt by the applicants to kill him, as neither the complainant had received any external injury nor even the medical treatment was thought necessary and under these circumstances, it is clear that the allegations made in the FIR with regard to the assault on the complainant with an intention to kill him is false. So far as the allegations in the FIR that an assault was made on the life of the complainant is concerned, suffice it to say that the police has not filed charge-sheet for offence under [SECTION] of [ACT] and the charge-sheet has been filed for offence under [SECTION], [SECTION] and [SECTION] of [ACT]. Thus, it is clear that the police was not impressed by the allegations made by the complainant in the FIR and has conducted the investigation in a free, impartial and fair manner and after collecting evidence has filed the charge-sheet for the offence which was prima facie made out as per the prosecution evidence.
After considering the submissions made by counsel for the applicants, this Court is of the view that as the malafides of the complainant cannot be a sole criteria for quashing the legitimate prosecution of an 11 [CASE NUMBER].
accused and since in the present case, specific allegations are that the complainant was beaten in order to take forcible possession of the land in respect of which, a civil suit is pending between the parties and the application filed by the applicants for grant of temporary injunction has already been rejected, it cannot be said by any stretch of imagination that the assault made by the applicants on the complainant was purely civil in nature.
Before parting with the order, this Court feels it proper to issue a word of caution to the trial Court clarifying that the observations have been made by this Court by considering the limited scope of interference under [SECTION] of [ACT] The trial Court must decide the trial on the basis of the evidence which would ultimately come on record and should not get prejudiced by any of the observations made by this Court.
Accordingly, this application fails and is hereby dismissed.
([ENTITY]) Rks. Judge