Crl. Misc. No.M-48625 of 2007 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No.M-48625 of 2007 Date of decision.15.03.2010 Vijay Kushwara s/o Murli Manohar Gopal, r/o 202, Type -2 , Sector 1, DHEL, Haridwar, District Haridwar. ....... Petitioner Versus 1.State of Haryana, 2. Rajesh Kumar s/o Partap Singh r/o village Jassolkheri, Tehsil Bahadurgarh, District Jhajjar. 3. ASI Jai Kishan, Incharge, PP Assaundh, Bahadurgarh, District Jhajjar, 4. SHO Police Station Jawalapur, District Haridwar. ........ Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Ms. Promila Nain, Advocate for the petitioner. Mr. Sandeep Mann, Sr. DAG, Haryana, for respondent no.1-State. Mr. Jitender Nara, Advocate for respondent nos. 2 and 3. Mr. S.S. Majithia, Advocate, for respondent no.4. -- Sham Sunder, J. This petition under Section 482 Cr.P.C. for quashing FIR No. 149 dated 8.6.2007, under Section 365 IPC, Police Station Bahadurgarh, District Jhajjar and all the subsequent proceedings arising therefrom, has been filed by the petitioner. Crl. Misc. No.M-48625 of 2007 --2-- 2. Rajesh Kumar, respondent no.2, made an application to the Incharge Police Post Assodha, that on 08.06.2007 at about 5.00 AM, in the morning, Sushila wife of his uncle's son Rajbir got him up and made him understand, that his brother Rajbir Singh had been taken away by Vijay Khushwara son of M.M. Gopal, resident of BHEL, Sector No.1, Gazipur, Haridwar, Utranchal, Virender, Surender Master sons of Amar Singh, Sharda Nagar, Jawalapur, Haridwar and Kapil son of Narender in car No. UBZ-004-6207 and Car Nos. UR-077-0137. It was further stated that nobody knew regarding the whereabouts of Rajbir Singh. It was further stated that Rajbir Singh had been kidnapped, by the aforesaid persons, with a motive to his illegal confinement. On the basis of such complaint, made by the complainant, FIR was recorded. 3. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 4. The Counsel for the petitioner submitted that Rajbir Singh and Surender were having good relations in business dealings. She further submitted that in business dealings, a dispute arose between them. She further submitted that Rajbir Singh issued cheques to the petitioner, which were dishonoured by the Bank, as a result Crl. Misc. No.M-48625 of 2007 --3-- whereof, the petitioner served a legal notice dated 15.12.2006, through his Counsel, which was received by him. She further submitted that after receipt of legal notice, served upon Rajbir Singh, he (Rajbir Singh) having good relations with the local Police, got the petitioner implicated in case FIR No. 307 dated 21.12.2006, under Sections 406, 420, 467, 468 and 471 IPC, Police Station Sadar Bahadurgarh, just to escape his liability in the proceedings under Section 138 of the Negotiable Instruments Act. She further submitted that Jai Kishan, ASI, Naresh Kumar, Constable, alongwith Rajbir Singh and Rajesh got the petitioner arrested on 3.1.2007 by the Police of Police Station Jawalapur, Haridwar, in the FIR, aforesaid, and brought him to Police Post Aasodha, Bahadurgarh, where instead of producing him, before the Court of the Magistrate, concerned, he was kept in illegal custody, and was tortured in the Police Post, at the behest of Rajesh and Rajbir Singh. She further submitted that even, under threat to the life of the petitioner, all the aforesaid persons got signed a number of documents, from the petitioner, including a number of affidavits. She further submitted that they also took the original cheques, for which the petitioner had got issued a legal notice. She further submitted that even Jai Kishan, ASI, took Crl. Misc. No.M-48625 of 2007 --4-- Rs.50,000/- for the release of the petitioner. Ultimately, the matter was compromised, in the aforesaid FIR. She further submitted that the petitioner and his family members were under a great shock, about the above said incident. She further submitted that the petitioner had no option except to give complaint, that how his custody was misused by Rajbir Singh and Rajesh and the Police officials. She further submitted that, after due inquiry , the Police lodged FIR No. 98 /2007, under Sections 420, 467, 468, 471, 342, 506 and 330 IPC, Police Station Jawalapur, District Haridwar against Rajbir Singh , Rajesh and Police officials. She further submitted that on 08.06.2007, Rajbir Singh was arrested by Haridwar Police, in the FIR, aforesaid, and produced before the Magistrate, concerned, on 09.06.2007. She further submitted that, under these circumstances, the question of kidnapping of Rajbir Singh by the petitioner and others, on 08.06.2007, at 5.00 AM, in the morning, with a view to his illegal confinement, did not at all arise, and, as such, FIR No. 149 dated 8.6.2007 under Section 365 IPC, is nothing, but an abuse and misuse of the process of Court and law, with a view to take revenge against the petitioner. She further submitted that the FIR , aforesaid, was lodged with malafide intention. Crl. Misc. No.M-48625 of 2007 --5-- 5. On the other hand, the Counsel for respondent no.1, submitted that Rajbir Singh was kidnapped by the petitioner and others, on the morning of 8.6.2007, for which the instant FIR was lodged. He further submitted that the Police officials of Police Station Bahadurgarh, visited the house of Rajbir Singh, on 10.06.2007 and his statement was recorded, wherein he also stated that he was kidnapped by them, on 08.06.2007 at about 5.00 AM. It was further submitted that the FIR was not false. 6. The Counsel for respondent no.4, Station House Officer, Police Station Jawalapur, District Haridwar, submitted that when Rajbir Singh applied for bail, he did not state therein, that he was kidnapped on 8.6.2007, by the petitioner, and his co-petitioners (non- applicants). He further submitted that Rajbir Singh was arrested on 08.06.2007 and produced before the Magistrate, concerned, on 09.06.2007, when he was granted bail. 7. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the petition should be accepted, for the reasons to be recorded hereinafter. In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), Crl. Misc. No.M-48625 of 2007 --6-- it was held that in following category of cases, the High Court may exercise all power, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However,such 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 Crl. Misc. No.M-48625 of 2007 --7-- 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 every 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 allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the Crl. Misc. No.M-48625 of 2007 --8-- categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 8. Now, adverting to the facts of the instant case, let us see, as to whether, it is a fit case, in which the FIR, in question, should be quashed or not. While exercising the powers under Section 482 Cr.P.C., the Court can take into consideration the material produced by the accused/petitioner, which is of unimpeachable character and of sterling value. Annexure R-4/1 is a copy of Report No.42 dated 8.6.2007, which was recorded at 10.00 AM. It is evident, from the report, that Rajbir son of Ram Mehar, r/o village Jassour Kheri, P.S. Bahadurgarh, District Jhajjar (Haryana) was arrested in case FIR No. 98 of 2007, under Sections 420, 467, 468, 471, 342, 330 and 506 IPC by the Police of Police Station Jawalapur, District Haridwar, on 8.6.2007. He was brought to the Police Station. The aforesaid FIR was got registered by Vijay Khushwara, petitioner, against Rajbir Singh. It is evident from Annexure P-4, that an application for bail, was filed by Rajbir, in the aforesaid FIR, wherein, he did not state even a single word, that he had been kidnapped/abducted by the petitioner, and his co-petitioners. Alongwith this petition, a copy of the affidavit of Balraj Singh, was also filed, wherein again it was stated that Rajbir had been falsely implicated, in the said case. Crl. Misc. No.M-48625 of 2007 --9-- It was on 09.06.2007, that the Court concerned, granted bail to Rajbir. Once Rajbir had already been arrested on 08.06.2007 by the Police of Jawalapur, the question of his kidnapping/abduction, by the petitioner, and his co-petitioners (non-applicants), from his house, on 08.06.2007, in the morning, did not at all arise. A person, who is already in the custody of the Police, in connection with a case, registered against him, having been arrested therein, could not be said to have been kidnapped. Had he been kidnapped/abducted, he would have certainly made his grievance in the bail application, ( Annexure P-4) dated 09.06.2007 and in the affidavit Ex.P-5, which was the first opportunity available to him to do so. This clearly goes to show that the FIR was got registered, against the petitioner, with malafide intention, and to take revenge, as he had to obtain money from Rajbir Singh, and had given legal notice to him, under the relevant provisions of law. Since the FIR was got registered with malafide intention and take revenge, the case falls within the ambit of one of the categories, depicted in State of Haryana and others' case (supra). Under these circumstances, continuation of the FIR and the subsequent proceedings, would amount to sheer abuse of the process of the Court. Accordingly, the same are liable to be quashed. Crl. Misc. No.M-48625 of 2007 --10-- 9. For the reasons recorded above, Criminal Misc. No.M-48625 of 2007, qua Vijay Kushwara, petitioner,is accepted. FIR No. 149 dated 8.6.2007, under Section 365 IPC, Police Staton Bahadurgarh, District Jhajjar and all the subsequent proceedings arising therefrom, qua him, are quashed. 10. The Registry is directed to send copies of the order, to the Courts concerned, immediately. March 15, 2010 (SHAM SUNDER) dinesh JUDGE