Crl. Misc. No.M-7176 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-7176 of 2010 Date of Decision: 15.02.2011 Jeet Singh and others ....Petitioners Versus State of Punjab and another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Sanjeev Sharma, Sr. Advocate with Mr. Davinder Lubana, Advocate for the petitioners. Mr. J.S. Brar, A.A.G., Punjab for the respondent-State. Mr. D.P.S. Kahlon, Advocate for respondent No.2. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is a petition under Section 482 Cr.P.C for quashing of FIR No.183 dated 26.09.2007 under Sections 364-A, 382, 420, 467, 468, 506 and 120-B of IPC read with Sections 25/54/59 of the Arms Act registered at Police Station Zirakpur, District S.A.S. Nagar and all subsequent proceedings arising out of the impugned FIR. The facts, in short, are that the petitioners No.2 and 3 are stated to be the Directors along with respondent No.2 in “Blue Sea Sites Private Limited” and the petitioner No.3-Navdeep Singh is also a co- director with respondent No.2 in “White Sea Sites Private Limited” with its Crl. Misc. No.M-7176 of 2010 2 registered office at House No.44, Village Behlana, U.T. Chandigarh. The petitioners No.4 and 5 are the employees of petitioners No.2 and 3 and respondent No.2, whereas, petitioner No.1 is the real brother of petitioner No.2. The allegation against the present petitioners and their co-accused is that they along with 12-14 persons kidnapped the complainant/respondent No.2 on gun point with intention to kill him and ultimately, the accused side had obtained signatures of the complainant/respondent No.2 on various blank papers (including stamp papers) along with snatching of cash and other original documents of various properties. Further, the accused side under the threat of firearm (pistol) had obtained signatures of the complainant’s wife, namely, Sonu, who was having pregnancy of eight months at that time. While praying for quashing of FIR, learned counsel for the petitioners submitted that ; (a) an earlier complaint filed by the complainant was enquired into by the Investigating Officer who found the incident to be false vide his report dated 05.08.2006. The then Senior Superintendent of Police, Mohali had accepted the report of the Deputy Superintendent of Police, Zirakpur which was further submitted to the ADGP, Law and Order, Punjab, Chandigarh. The Chandigarh police also conducted the enquiry and found that nothing had happened in their jurisdiction and the matter was sent back to Senior Superintendent of Police, Mohali. (b) that the complainant also filed a complaint before the Punjab Human Rights Commission. The same was enquired into and the enquiry report dated 10.08.2007 was submitted before the Commission Crl. Misc. No.M-7176 of 2010 3 by Inspector General of Police, PSHRC, Chandigarh, wherein, it was found that no such incident had happened. Thus, both the complaints filed before the Punjab Human Rights Commission and before the Mohali police stood filed by the Senior Superintendent of Police, Mohali-Sh. R.S. Khatra. Thereafter, Sh. R.S. Khatra took a U-turn and recommended registration of FIR against the petitioners and others on the same set of allegations on the basis of second representation made by the complainant/respondent No.2 dated 24.09.2007 and has registered the present FIR. As such, the registration of FIR was mala fide. (c) that the petitioner Navdeep Singh is the director of the Company i.e. White Sea India Private Limited and the complainant forged the resignation of the petitioner-Navdeep Singh from directorship and submitted the same to the Registrar of the Companies to remove his name and to include the name of his brother in order to embezzle a huge amount of ` 5 crore and capture the Company i.e White Sea India Private Limited. Therefore, the petitioner-Navdeep Singh had lodged a complaint titled as “Navdeep Singh vs. Anil Kumar and others” under Section 420 of IPC and the same is pending before the Court of Judicial Magistrate Ist Class, Chandigarh and the present complaint is, therefore, a counter blast. (d) that as the complainant/respondent No.2’s case Crl. Misc. No.M-7176 of 2010 4 in his complaint is that he was forcibly kidnapped in his own car, however, in the very next line of his complaint, he has mentioned that the petitioners allegedly broke window panes of his car to get one brief case. This again is not possible because if the complainant was kidnapped in his own car by the petitioners, it simply means that the petitioners were having control of his car, therefore, there was no occasion for the petitioners to break window panes of his car. As such, the very story is absurd. Reliance has been placed on the judgments of Hon’ble the Apex Court rendered in the cases titled as Chunduru Siva Ram Krishna and another vs. Peddi Ravindra Babu and another reported as (2009) 11 Supreme Court Cases 203 and Manoj Mahavir Prasad Khaitan vs. Ram Gopal Poddar and another reported as (2010)10 Supreme Court Cases 673. Learned counsel for respondent No.2 has vehemently disputed the submissions made by learned counsel for the petitioners and submitted that earlier the petitioners Darshan Singh, Navdeep Singh and complainant-Anil Kumar were Directors of Blue Sea Sites Private Limited. The petitioners after kidnapping the complainant, had misused his signatures on blank papers and ultimately the complainant was shown as resigned Director from the Company. Against this illegal act of Darshan Singh and Navdeep Singh (petitioners), the complainant had also lodged a complaint to the competent authority. Secondly, the petitioners are very influenced persons. They got the earlier complaints filed by concealing certain facts, whereas, after the registration of the FIR, the entire evidence/documents were evaluated by the Investigating Officer and thereafter, challan/charge sheet under Crl. Misc. No.M-7176 of 2010 5 Section 173 of Cr.P.C has been submitted. There is solid evidence against the petitioners which requires to be tested by the trial Court. There are disputed question of facts. The same can only be decided through proper trial after affording the opportunity to both the sides. It is further submitted that the petitioners-Darshan Singh and Navdeep Singh had misused the signed blank papers of complainant-Anil Kumar with ulterior motive and FIR No.143 dated 30.09.2008 under Sections 420 and 406 IPC at Police Station Derabassi was registered on the statement of one of the Director, namely, Manoj Jain. In this FIR, the total embezzlement was at the tune of ` 4,25,00,000/-. The said FIR is also pending. The rest of the averments of the present petitioners were disputed. Reply has also been filed by the respondent-State. As per the said reply, the complaint bearing No.1532 dated 24.09.2007 has been submitted by respondent No.2 in the Office of Senior Superintendent of Police, Mohali regarding registration of a case for kidnapping with an intention to kill and forcibly taking the signatures of respondent No.2 and his wife by the petitioners/accused on blank papers regarding property of respondent No.2. The matter was enquired by the then Deputy Superintendent of Police, Derabassi, who in his report, has submitted that this occurrence took place in UT, Chandigarh, therefore, the matter should be enquired by the Chandigarh police. Further, it was mentioned that the matter was enquired by the Chandigarh police and they also requested the Senior Superintendent of Police, Mohali for taking action as per law, since the occurrence took place at Zirakpur. A fair and impartial enquiry has been conducted by the Inquiry Officer and the present FIR has been registered against Darshan Singh-petitioner No.2, Paramjit Kaur Dhillon, Jeet Singh @ Ajit Singh-petitioner No.1. Navdeep Singh-petitioner No.3, Vicky- petitioner No.4, Deepak-petitioner No.5, Ashok Kumar, Ravinder, Sukhbir, Bhola along with two-three more persons. Accused Bhola has been Crl. Misc. No.M-7176 of 2010 6 declared innocent during the enquiry conducted by the then Deputy Superintendent of Police, Sub Division Derabassi. During investigation, the statements of witnesses have been recorded under Section 161 Cr.P.C and rough site plan was prepared and all the allegations levelled against petitioners No.1 to 5 and Paramjit Kaur were found to be having substance and consequently, challan in the present case, was prepared on 31.08.2009 which was submitted before the Illaqa Magistrate on 24.02.2010. However, the addresses and the whereabouts of Sukhbir, Ravinder, Ashok and other accused in the present FIR could not be traced, they were declared proclaimed offender and consequently a supplementary challan would be filed against them. The Illaqa Magistrate Court vide order dated 24.02.2010 after scrutinizing the challan has committed the case to the Sessions Court. Heard. There is no doubt that as per the earlier enquiry report of the Deputy Superintendent of Police, Dera Bassi and the Senior Superintendent of Police, Chandigarh, no such offence had occurred in their area. Nevertheless, the fact remains that there are two more contradictory reports of Sh. R.S. Khatra ; one stating that no such incident had occurred and on the basis of second report, the present FIR was registered. In order to establish the truth and to ascertain, as to which one of the two reports are correct, it is only proper and fair that the allegations in the FIR should be investigated. It was in the backdrop of these facts that the present petitioners and his co-accused had earlier withdrawn Crl. Misc. No.M-5846 of 2008 filed by them. The order dated 14.07.2009 passed in Crl. Misc. No.M-5846 of 2008 reads as under :- “ Learned counsel for the State, on instructions from ASI Ram Dayal, who is present in Court, Crl. Misc. No.M-7176 of 2010 7 submits that investigation of the case is still pending. Learned counsel for the petitioner submits that he may be allowed to withdraw the present petition with liberty to file afresh after final report under Section 173 Cr.P.C is submitted. Dismissed as withdrawn with liberty as aforesaid.” As of today, the matter has been investigated. After appreciating the evidence and documents, charge sheet has been filed. A supplementary challan under Section 173 Cr.P.C has also been filed against the co-accused. The co-accused of the petitioners were declared proclaimed offender. The Illaqa Magistrate, after scrutinizing the challan, has committed the case to the Sessions Court. The argument of learned counsel for the petitioners that the story is improbable because if the complainant was kidnapped in his own car by the petitioners, it simply means that the petitioners were control of his car, therefore, there was no occasion to break window panes of his car, is a matter of evidence and defence of the petitioners to be appreciated at that stage and cannot be made a ground for quashing of FIR. Learned counsel for the petitioners has relied upon the judgment of Hon’ble the Apex Court rendered in the case of Manoj Mahavir Prasad Khaitan (supra) to state that the Court had ample powers under Section 482 Cr.P.C to quash the complaint in case of absurd allegations made without any basis. There is no argument with the said proposition of law. The said judgment was passed in the peculiar facts of that case. In that case, the daughter-in-law of the respondent was also the sister of the appellant. After the marriage, she was harassed by her in-laws for dowry. She, therefore, filed a complaint against respondent No.1 under Sections 498-A and 406 of the Indian Penal Code, 1860 read with Section 4 of the Dowry Prohibition Crl. Misc. No.M-7176 of 2010 8 Act, 1961, who was arrested and released on bail. In pursuance to the complaint, the police went for investigation to the matrimonial home. Thereafter, a written complaint was filed by the respondent against the appellant in that case under Section 379 IPC. It was obvious that the criminal complaint was in retaliation of the criminal prosecution which was being faced by respondent No.1 and the complaint lacked bona fide on the face of it. Similarly, the judgment relied on by the learned counsel for the petitioners in the case of Chunduru Siva Ram Krishna and another (supra) also does not help the petitioners as that too was passed in the facts of that case, wherein, it was held that no specific role had been ascribed to any of the persons. The allegation, therein, was of totally economic in nature. On the other hand, in the judgment rendered by Hon’ble the Apex Court in the case of State of Orissa and another vs. Saroj Kumar Sahoo reported as (2005)13 SCC 540, it was specifically held in para 11 as under :- “ 11. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C 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 Crl. Misc. No.M-7176 of 2010 9 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.” Hon’ble the Supreme Court in the case of State of M.P. vs. Awadh Kishore Gupta and others reported as (2004)1 SCC 691 while relying on the judgment of R.P. Kapur vs. State of Punjab reported as AIR 1960 SC 866, observed the category of cases, in which, the inherent power should be exercised to quash the proceedings. Para 9 of the same reads as under :- “ 9. In R.P. Kapur v. State of Punjab this Court summarized 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 Crl. Misc. No.M-7176 of 2010 10 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. Thus, needless to say, that none of the three grounds are available in the facts of the present case. Even as per the judgment rendered in the case of State of Haryana vs. Bhajan Lal reported as 1992 Supp(1) SCC 335, a note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. Hon’ble the Apex Court in the case of Pankaj Kumar vs. State of Maharashtra reported as 2008(4) RCR (Criminal) 890 while discussing the scope and ambit of powers of the High Court under Section 482 Cr.P.C., as well as, the expression “rarest of rare cases” observed in paras 10, 11 and 12 as under :- “10. The scope and ambit of powers of the High Court under Section 482 Cr.P.C or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary Crl. Misc. No.M-7176 of 2010 11 jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. 11. Although in Bhajan Lal’s case (supra), the court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the afore-stated provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised. 12. The purport of the expression “rarest of rare cases” has been explained very recently in Som Mittal (supra). Speaking for the three-Judge Bench, Hon’ble the Chief Justice has said thus : “When the words `rarest of rare cases’ are used after the words `sparingly and with circumspection’ while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words `sparingly and with circumspection’. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression “rarest of rare cases” is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that Crl. Misc. No.M-7176 of 2010 12 the power under Section 482 Cr.P.C to quash the FIR or criminal proceedings should be used sparingly and with circumspection.” In view of the above and as held by Hon’ble the Apex Court, the inherent powers should not be exercised to stifle a legitimate prosecution. In the facts of present case, a pre-mature assessment cannot be made as the prosecution will have to be given an opportunity to lead their evidence to ascertain the truth of the allegation and which one of the two reports given by the Superintendent of Police is correct. Applying the test and the legal position as laid down in the cases of State of Orissa and another (supra), State of M.P. (supra), as well as, State of Haryana (supra), the case, in hand, does not fall in any of the exceptions, as well as the expression “rarest of rare cases” wherein the FIR can be quashed while exercising power under Section 482 Cr.P.C. Dismissed accordingly. (NIRMALJIT KAUR) 15.02.2011 JUDGE gurpreet