Criminal Misc. No. M-29946 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-29946 of 2009 Date of Decision: 08.03.2010 Gurpreet Singh, ASI, Police Station, Kotwali, Bathinda. ... Petitioner Versus 1. Chander Mohan Kapoor son of Sh. Ram Parkash, H. No. 13415, Ganesha Basti, Thakar Colony, Bathinda. ...Respondent 2. Kashmir Singh, Hawaldar, Police Station Kotwali, Bathinda. ...Proforma-Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. K.S. Bassi, Advocate, for the petitioner. Mr. Rakesh Verma, Advocate, for respondent No. 1. Service of respondent No. 2, already dispensed with. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the complaint dated 01.10.03 (Annexure P1), the order dated 06.04.09 (Annexure P2), rendered by the Court of Special Judge, Bathinda, vide which, the complaint, was remanded back to Illaqa Magistrate, for further proceedings, and all the consequential proceedings, arising out of the same, has been filed by the petitioner. Criminal Misc. No. M-29946 of 2009 2 2. The facts, in brief, are that, on 03.05.01, at about 9.30 PM, Gurpreet Singh, Assistant Sub Inspector and Kashmir Singh, Head Constable, under the influence of intoxicants, came to the house of the complainant/respondent No. 1, and, stated that, they had received a complaint, that he (complainant), had obtained arms licence, in the name of his son Varun Kapoor, who was under age. When the complainant, told the accused, to come to his shop, on the next morning, Gurpreet Singh, Assistant Sub Inspector, demanded a sum of Rs. 5,000/-, as gratification, other than legal remuneration, from him, assuring that he would file the complaint, against his son. However, the complainant, did not want to grease the palms of the accused, as there was no defect in the documents, pertaining to the arms licence, issued, in the name of his son Varun Kapoor, as a result whereof, he got enraged. Gurpreet Singh, Assistant Sub Inspector, gave fist blows, at the face of the complainant, shaking his tooth. Thereafter, Gurpreet Singh, Assistant Sub Inspector, put his foot, on the right hand of the complainant, as a result whereof, he suffered injury. It was stated that, when the son of the complainant intervened, he was pushed aside, by the accused. It was further stated that, on raising alarm, by the complainant, Gursewak Singh, and, Madan Lal, residents of Ganesha Basti, came there, on seeing whom, the accused, fled from the spot. Thereafter, the complainant, went to Police Station Kotwali, Bathinda, but the Police officials, deputed there, asked him to come on the next day. It was further stated that the statement of the complainant, was recorded, on Criminal Misc. No. M-29946 of 2009 3 04.05.01, in Civil Hospital, Bathinda, by Bachittar Singh, Assistant Sub Inspector, where he was got admitted. It was further stated that, in the meanwhile, Gurpreet Singh, Assistant Sub Inspector, got registered a false case, under Sections 186, 323 and 353 read with Section 34 IPC, against the complainant, and his son. Ultimately, left with no alternative, the aforesaid complaint, was filed. 3. After hearing the Counsel for the parties, and, on going through the record, the trial Court, transferred the case, to the concerned Illaqa Magistrate, for further proceedings, under Section 323 read with Section 34 IPC. 4. Feeling aggrieved, the instant petition, has been filed, by the petitioner. 5. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 6. The Counsel for the petitioner, submitted that criminal complaint, under Section 323 read with Section 34 IPC, was nothing, but a counter-blast, to FIR No. 209, dated 03.05.2001, which was got registered against complainant/respondent No. 1, by the petitioner, under Sections 353, 186 and 323 read with Section 34 IPC. He further submitted that the petitioner, was entrusted with investigation, by the Senior Superintendent of Police, Bathinda, in complaint No. 434/S dated 24.02.01 of one Rattan Lal against Varun Kapoor son of Chander Mohan Kapoor, resident of Ganesha Basti, Bathinda. He further submitted that, the allegations, in the complaint, were to the effect, that Varun Kapoor, though, under age i.e. below Criminal Misc. No. M-29946 of 2009 4 21 years, gave a wrong age, in the proforma, to obtain the Arms Dealership Licence. He further submitted that the petitioner, earlier, during the day, sent Kashmir Singh, Head Constable, to Kapoor Gun House, Court Road, Bathinda, to enquire about the allegations, levelled in the complaint of Rattan Lal. He further submitted that the respondent told Kashmir Singh, Head Constable, to come to his house and certificates of age would be shown to him. He further submitted that, in the evening, when the petitioner, asked the respondent, to give proof with regard to the age of his son, he refused to give the certificates and sign the statement, recorded by the petitioner, and, on the other hand, used abusive language, as also caught hold of him. He further submitted that the mother of Varun Kapoor, and his brother Arun Kapoor, tore his (petitioner's) shirt and removed the dori from his uniform, whereas, Chander Mohan, caught hold him of his neck, due to which rashes appeared. He further submitted that Paramjit Singh, Constable, who was accompanying the petitioner saved him. He further submitted that, on the basis of the complaint, made by Gurpreet Singh, ASI, the FIR, was recorded. He further submitted that, at a belated stage, false allegations, were levelled, against the petitioner, by the respondent, and the aforesaid complaint, under Sections 7 & 13(2) of the Corruption Act as well as 323 read with Section 34 IPC, was made. He further submitted that the complaint, was made, just as an arm twisting device. He further submitted that, even the complaint, was not filed, within the period of limitation. He further submitted that Criminal Misc. No. M-29946 of 2009 5 the complaint, the order dated 06.04.09, and the subsequent proceedings, if allowed, to continue, the same, would amount to abuse of the process of the Court. 7. On the other hand, the Counsel for respondent No. 1, submitted that the complaint, was not made, by the respondent, as a counter-blast, to the FIR, which was lodged by the petitioner. He further submitted that, in fact, the petitioner, demanded gratification, from the complainant, as also caused injuries, on his person. He further submitted that the complaint and the order dated 06.04.09, are not liable to be quashed. 8. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, 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. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is 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 Criminal Misc. No. M-29946 of 2009 6 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 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 Criminal Misc. No. M-29946 of 2009 7 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. 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 Criminal Misc. No. M-29946 of 2009 8 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 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. 9. Now adverting to the facts of the instant case, it may be stated here that when the petitioner alongwith a Constable, went to the house of the complainant/respondent No. 1, for the purpose of making an enquiry, regarding the age of his son, not only that they allegedly abused him, but, also tore his uniform. So, on the basis of the complaint, made by the petitioner, FIR No. 209, dated 03.05.2001, was registered. Just with view to save himself, from the aforesaid criminal case, which was got registered, against him and his family members, the instant complaint, was filed, by the complainant on 01.10.03, after a delay of about 2 years and 5 months, as a counter-blast and to teach a lesson to the petitioner. Why the complainant remained mum for such a long period is not explained. The complaint, is, thus, the complete abuse of the process Criminal Misc. No. M-29946 of 2009 9 of the Court, as the same was filed, just to take revenge against the petitioner, a public servant. The instant case, falls within one of the categories, mentioned, in State of Haryana and others' case (supra). Criminal Misc. No. M-29946 of 2009, thus, deserves to be accepted. 10. For the reasons recorded above, Criminal Misc. No. M- 29946 of 2009, is accepted. The complaint dated 01.10.03 (Annexure P1), the order dated 06.04.09(Annexure P2), rendered by the Court of Special Judge, Bathinda, vide which, the complaint, was transferred to the Illaqa Magistrate, for further proceedings, and all the consequential proceedings, arising out of the same, are quashed, qua the petitioner. 11. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately. 08.03.2010 (SHAM SUNDER) Amodh JUDGE