HIGH COURT OF CHATTISGARH AT BILASPUR
M.Cr.C.No.2226 of 2002
1. S.S.Masih
2. Smt.Gayatri
...Petitioners
Versus
1. State of Chhattisgarh
2. Dy. Superintendent of Police
3. Smt.Hira Bai
...Respondents (Petition under Section 482 of Code of Criminal Procedure,
1973)
! Shri Ashish Surana, counsel for the petitioners.
^ Shri Sanjeev K. Agrawal, Panel lawyer for respondents No.1 and 2
Shri Raj Kamal Singh, counsel for respondent No.3.
Honble Mr. T.P. Sharma, J
Dated:20/08/2009
: Judgment
Order
(Delivered on 20th August, 2009)
1. The petitioners have filed this petition under Section 482
of the Code of Criminal Procedure, 1973 (in short `the Code’)
for quashment of the F.I.R. registered in Crime No.384/2002 at
Police Station-City Kotwali, Korba.
2. The quashment is prayed for on the ground that without
there being prima facie material against the petitioners, the
police has registered the F.I.R. and caused serious prejudiced
to the petitioners.
3. I have heard learned counsel for the parties and perused
the copy of the F.I.R. and other documents filed on behalf of
the petitioners.
4. Learned counsel for the petitioners vehemently argued that
the petitioners who are counsel for respondent No.3 had filed
motor accident claim case at the instance of respondent No.3
before the Additional Motor Accident Claims Tribunal, Korba
which was finally dismissed vide order dated 12.4.2002 as not
maintainable. After dismissal of the said petition, respondent
No.3 on 4.6.2002 misbehaved petitioner No.1, also used filthy
language and threatened him. Petitioner No.1 has made a
complaint to the Outpost Incharge Police Station, Rampur, Korba
on 4.6.2002. After dismissal of the case, he has returned file
to Krishna Kumar Nirala (brother-in-law of respondent No.3).
Petitioner No.1 has made a complaint to the State Bar Council
against respondent No.3. District Bar Association, Korba has
also made a complaint to the Superintendent of Police, Korba on
12.6.2002. Deputy Superintendent of Police has issued notice to
the petitioners vide notice dated 26.6.2002 and 26.8.2002.
Petitioner No.1 has also made complaints to several officers
and authorities, but they have not taken any action against
respondent No.3. Learned counsel further submits that the
police has registered Crime No.384/2002 in connection with the
offence punishable under Sections 294, 323/34 and 420 of the
Indian Penal Code and Section 3 (i) (x) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in
short `the Act, 1989′) against the petitioners and has issued
notices to them. Learned counsel also argued that police has
not taken any action at the instance of complaint made by
petitioner No.1 but has illegally took action against the
petitioners at the instance of respondent No.3. Learned counsel
also contended that registration of F.I.R. against the
petitioners is illegal and has caused serious prejudiced to the
petitioners and same be quashed.
5. Learned counsel placed reliance in the matter of All Cargo
Movers (India) Private Limited and others v. Dhanesh Badarmal
Jain and Another1 in which the Apex Court has held that at the
time of consideration the petition under Section 482 of the
Code against criminal prosecution for the offence punishable
under Sections 406 and 420 of the Indian Penal Code, the Court
is required to consider the correspondences exchanged by the
parties and other admitted documents and if it is found to be
mala fide or otherwise an abuse of the process of the court,
the proceeding should be quashed. Learned counsel further
placed reliance in the matter of Anil Ritolla alias A.K.Ritolia
v. State of Bihar and another2 in which the Apex Court has held
that the Court is required to consider the terms and conditions
of the contract and only non-compliance of any contract does
not constitute the offence of cheating, therefore, proceeding
should be quashed. Learned counsel also placed reliance in the
matter of Vakil Prasad Singh v. State of Bihar3 in which the
Apex Court has held that proceeding was quashed on the ground
of unexplained delay of about 17 years.
6. On the other hand, learned counsel for the respondents
argued that while dealing with the quashment of the F.I.R. in
criminal proceeding, the Court is required to see prima facie
material collected on behalf of the prosecution and if the same
is admitted in its face value that would be sufficient for
warranting conviction. Learned counsel further argued that in
the present case investigation is in progress and investigating
officer has issued notices to the respondents for submission of
their caste certificate, but instead of cooperating the
investigation they have filed this present petition. The
investigating officer has not committed any illegality
resulting into miscarriage of justice or has not caused any
serious prejudiced to the present petitioners.
7. According to the case of the petitioners, investigating
agency has registered F.I.R. in Crime No.384/2002 at Police
Station Civil Lines, Korba (virtually Ajak, Korb) in connection
with the offence punishable under Sections 294, 420 and 323/34
of the Indian Penal Code and Section 3 (i) (x) of the Act,
1989. Investigating agency has not concluded its investigation.
They have issued notices to the petitioners relating to caste
of the petitioners.
8. Exercise of power under Section 482 of the Code 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 the Code. This provision is meant only to make
such orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice.
9. While dealing with the question of quashment of
investigation, the Apex Court in the matter of M/s.Jayant
Vitamins Ltd., v. Chaitanyakumar and another4 has held that the
investigation into an offence is a statutory function of the
police and the superintendence thereof is vested in the State
Government and the Court is not justified without any
compelling and justifiable reason to interfere with the
investigation. Thus where the investigation which is still on
its way and the further investigation in the offence is legally
permissible as contemplated by S. 173(8) of Cr.P.C., the
quashing of investigation by the High Court would not be
permissible.
10. While dealing with the question of quashment of the
F.I.R., the Apex Court in the matter of Satvinder Kaur v. State
(Govt.of NCT of Delhi) and another5 has held that if the F.I.R.
prima facie discloses commission of an offence, then the Court
does not normally stop the investigation. Para 14 of the said
judgment reads as under:-
“14. Further, the legal position is well settled
that if an offence is disclosed the court will not
normally interfere with an investigation into the
case and will permit investigation into the
offence alleged to be completed. If the FIR, prima
facie, discloses the commission of an offence, the
Court does not normally stop the investigation,
for, to do so would be to trench upon the lawful
power of the police to investigate into cognizable
offences. It is also settled by a long course of
decisions of this Court that for the purpose of
exercising its power under Section 482 CrPC to
quash an FIR or a complaint, the High Court would
have to proceed entirely on the basis of the
allegations made in the complaint or the documents
accompanying the same per se; it has no
jurisdiction to examine the correctness or
otherwise of the allegations.”
11. While dealing with the same question, the Apex Court in
the matter of State of A.P. v. Golconda Linga Swamy and another6
has held that F.I.R. did not disclose commission of an offence
without anything being added or subtracted from the recitals
therein. Though the FIR is not intended to be an encyclopedia
of the background scenario, yet even skeletal features must
disclose the commission of an offence. Para 12 of the said
judgment reads as under:
“12. So far as Criminal Appeals Nos.1183, 1193-96
of 2003 and criminal appeals arising out of SLPs
(Cri.) Nos.2191, 2632-33 and 3463 of 203 are
concerned, we find that the FIR did not disclose
commission of an offence without anything being
added or subtracted from the recitals therein.
Though the FIR is not intended to be an
encyclopedia of the background scenario, yet even
skeletal features must disclose the commission of
an offence. The position is not so in these cases.
Therefore, the High Court’s interference does not
suffer any legal infirmity, though the reasonings
indicated by the High Court do not have our
approval.”
12. In the present case, the petitioners have alleged that the
F.I.R. has been registered at the instance of respondent No.3
and notices have been issued to them for submission of their
caste certificate. Notice reveals that the F.I.R. has been
registered in connection with the offence punishable under
Sections 294, 420 and 323/34 of the Indian Penal Code and
Section 3 (i) (x) of the Act, 1989. Document filed on behalf
of the petitioners reveals that some incident took place
probably on 12.4.2002 and petitioner No.1 made a complaint to
different authorities, but no action has been taken on the
basis of the complaint made by the petitioner, but police has
initiated investigation on the basis of complaint made by
respondent No.3 against the petitioners.
13. From perusal of the documents it appears that the present
petitioners have not made any complaint to Ajak, Korba who is
investigated the complaint/information of the commission of the
offence made by respondent No.3, but has made complaints to the
different authorities. This is not a case where Ajak, Korba has
refused to initiate investigation on the basis of the complaint
made by the petitioners and has initiated the investigation on
the basis of complaint made by respondent No.3 which may be
treated as bias or mala fide investigation, but in the present
case ,Ajak, Korba has registered the F.I.R. on the basis of
information of the commission of cognizable offence given by
respondent No.3 against the petitioners. If the F.I.R. has not
been lodged by police outpost, Rampur on the basis of complaint
made to it by petitioner No.1, then petitioner No.1 or
petitioners may have recourse of taking appropriate action in
terms of Chapter XV of the Code.
14. In the matter of Anil (Supra), the Apex Court has held
that dispute between the parties was breach of the conditions
of the acquisition and documents and transactions reveals that
respondent has not complied with the condition of the contract,
that was purely the case of civil nature and only on the ground
of breach of any condition of the contract, criminal proceeding
was not proper. The case of Anil (Supra) is distinguishable on
the facts of the present case.
15. In the matter of State of A.P. (supra), the Apex Court has
held that after taking into consideration the correspondences
exchanged between the parties, dispute was found to be of civil
nature. In the present case, complainant/respondent No.3 has
made allegation which has not been investigated as yet and in
the present case there is no correspondences between the
parties. The case of State of A.P. (supra) is distinguishable
on the facts of the present case.
16. In the matter of Vakil (supra), the Apex Court has held
that proceeding was quashed on the ground of unexplained delay
of about 17 years. In the present case, just after lodging the
F.I.R. the petitioners have knocked this High Court for
invoking extraordinary inherent jurisdiction under Section 482
of the Code. The case of Vakil (supra) is distinguishable on
the facts of the present case.
17. In the present case, F.I.R. has been registered at the
instance of the complainant/respondent No.3 in connection with
the offence punishable under Sections 294, 420 and 323/34 of
the Indian Penal Code and Section 3 (i) (x) of the Act, 1989.
The offence is under investigation. Further investigation has
been stayed by this Court vide order dated 11.12.2002.
Investigating Officer has not concluded its investigation and
has not submitted final report in terms of Section 173 of the
Code for taking cognizance against the petitioners or for
closing of investigation on the ground of deficiency of the
evidence. If F.I.R. prima facie discloses the commission of an
offence then it can not be quashed in exercise of inherent
jurisdiction even in the case of F.I.R., not containing all
ingredients of offence. The Court should wait for completion of
investigation and even after completion of investigation, if
Court finds absence of essential ingredients of the offence,
then the Court may exercise the jurisdiction in terms of
Section 482 of the Code.
18. In the present case, investigation has not been concluded
as yet, therefore this petition is pre-mature. I do not find
any ground for interference in exercise of extraordinary
jurisdiction to quash the F.I.R.
19. Consequently, the petition being devoid of merit is liable
to be dismissed and it is hereby dismissed. Stay order granted
on 11.12.2002 stands vacated.
J U D G E