Govind Thakur vs State of H.P.

Tarlok Singh Chauhan, J.—The petitioner has prayed for quashing of FIR No. 90 of 2014, registered at Police Station, Manali on 28.5.2014 under Sections 341 and 143 IPC and has further prayed for quashing of the charge framed in Police Challan No. 48/14-611/15 titled as State of H.P. vs. Govind Thakur pending in the Court of Judicial Magistrate 1st Class, Manali.

It is pleaded that the aforesaid FIR came to be registered against the petitioner alongwith other co-accused on the allegations that on 28.5.2014 at about 12.15 p.m. they constituted an unlawful assembly near IBEX Chowk, Manali with a common object to resist the execution of the order passed by the National Green Tribunal and held agitation on the National Highway in front of Van Vihar, Manali thereby obstructing the free movement of the vehicular traffic but also the passer-byes.

It is averred that even if the contents of the FIR are taken on its face value, even then the same do not make out any case, more particularly in the background that neither the statement of any such person whose movement was obstructed, has been recorded by the police while investigating the offence nor any independent witnesses has been associated. It is also contended that the entire exercise of lodging the FIR is to settle personal score.

The respondents have opposed the petition by filing reply wherein it has been alleged that the petitioner alongwith approximately 1000 people formed an unlawful assembly near bus stand, Manali and marched to the gate of Van Vihar and sat on the road i.e. National Highway protested against the orders of the National Green Tribunal as well as the District Magistrate, Kullu by obstructing the vehicular traffic and public tranquility.

It is further averred that on this the Inspector/SHO, Police Station, Manali prepared a rukka under Section 341 , 143 IPC against the petitioner and other co-accused who were members of unlawful assembly pursuant to which the above FIR came to be registered at Police Station, Manali and case was investigated by the SHO himself. During the course of investigation, the statements of three witnesses were recorded under Section 161 Cr.P.C., site plan was prepared and on completion of investigation, the challan was prepared against the petitioner alongwith other co-accused under Sections 341 and 143 IPC and the same is pending before the learned Judicial Magistrate 1st Class, Manali. It is further averred that the petition is bad for nonjoinder of necessary parties inasmuch as there are as many as seven accused in the case and the other accused have not challenged the order dated 4.5.2015 passed by the learned trial Court.

I have heard learned counsel for the parties and have gone through the records of the case carefully.

At the outset, the scope of Section 482 Cr.P.C. may be noticed. In Dhanalakshmi Vs. R. Prasanna Kumar and Others, , the Hon''ble Supreme Court observed that Section 482 Cr.P.C. empowers the High Court to exercise its jurisdiction to prevent the abuse of the process of the Court and such proceedings are called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. It was observed as under:

"3. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of the Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which the cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 . It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court."

In the case of Smt. Chand Dhawan Vs. Jawahar Lal and others, , the Hon''ble Supreme Court while considering the power of the High Court under Section 482 Code of Criminal Procedure in quashing the criminal proceedings, observed that when the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage of the Magistrate taking cognizance of the offence, the High Court is guided by the allegations, whether those allegation s, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of Court or not.

In Radhey Shyam Khemka and Another Vs. State of Bihar, , the Hon''ble Supreme Court held as under:-

"8. The complaint made by the Deputy secretary to the government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately charge-sheet-has been submitted. On basis of that charge-sheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High court or by this court. If accepting the allegations made and charges levelled on their face value, the court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. This Court has repeatedly pointed out that the High Court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial Court. The power under Section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the Court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or inquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed."

In Varinder Singh Vs. State of Punjab and Another, the Hon''ble Supreme Court dealing with Section 482 Cr.P.C., held as under:

"482. Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court 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.

Under this Section, the High Court has the power to quash an FIR. This court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, has laid down the following categories of cases in which the High Court can exercise its power under Section 482 and quash the FIR:-

"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.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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.

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.

Where, the allegations in the F.I.R. 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.

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.

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.

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."

These principles were further reiterated by a three judge bench of this Court in the case of Sundar Babu and Others Vs. State of Tamil Nadu, ."

It was further observed that the High Court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial Court.

The scope of exercising of powers under Section 482 Cr.P.C. was subject matter of recent decision of the Hon''ble Supreme Court in Binod Kumar Vs. State of Bihar, wherein it has been observed as follows:-

"9. In proceedings instituted on criminal complaint, exercise of the inherent powers to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous. It is well settled that the power under Section 482 Cr.P.C. should be sparingly invoked with circumspection, it should be exercised to see that the process of law is not abused or misused. The settled principle of law is that at the stage of quashing the complaint/FIR, the High Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein. In Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, , this Court enumerated the cases where an order of the Magistrate issuing process against the accused can be quashed or set aside as under:

"(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complainant does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is a sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects such as, want of sanction, or absence of a complaint by legally competent authority and the like."

9.1. The Supreme Court pointed out that the cases mentioned are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash the proceedings.

In Indian Oil Corporation Vs. NEPC India Ltd. and Others, , this Court has summarized the principles relating to exercise of jurisdiction under Section 482 Cr.P.C. to quash complaints and criminal proceedings as under:-

"The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few-- Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, , State of Haryana and others Vs. Ch. Bhajan Lal and others, ; Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, , Central Bureau of Investigation, SPE, SIU (X), New Delhi Vs. Duncans Agro Industries Ltd., Calcutta, ; State of Bihar Vs. Rajendra Agrawalla, , Rajesh Bajaj Vs. State NCT of Delhi and Others, ; M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, Hridaya Ranjan Pd. Verma and Others Vs. State of Bihar and Another, , M. Krishnan Vs. Vijay Singh and Another, and Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, . The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."

The law relating to quashing is also well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the court does not go into reliability or otherwise of the version or the counter version. Here I may refer to the decision of Hon''ble Supreme court in Amit Kapoor Vs. Ramesh Chander and Another, where in dealing with this issue, it has been held as follows:-

"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ''civil wrong'' with no ''element of criminality'' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482 , the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

{Ref. State of West Bengal and Others Vs. Swapan Kumar Guha and Others, ; Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, ; Janata Dal Vs. H.S. Chowdhary and Others, ; Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, ; G. Sagar Suri and Another Vs. State of U.P. and Others, ; Ajay Mitra Vs. State of M.P. and Others, ; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128] ; State of U.P. Vs. O.P. Sharma, ; Ganesh Narayan Hegde Vs. S. Bangarappa and Others, ; Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, ; M/s. Medchl Chemicals and Pharma P. Ltd. Vs. M/s. Biological E. Ltd. and Others, ; Shakson Belthissor Vs. State of Kerala and Another, ; V.V.S. Rama Sharma and Others Vs. State of U.P. and Others, ; Chunduru Siva Ram Krishna and Another Vs. Peddi Ravindra Babu and Another, ; Sheonandan Paswan Vs. State of Bihar and Others, ; State of Bihar and Another Vs. P.P. Sharma, IAS and Another, ; Lalmuni Devi Vs. State of Bihar and Others, ; M. Krishnan Vs. Vijay Singh and Another, ; Savita Vs. State of Rajasthan and Others, and S.M. Datta Vs. State of Gujarat and Another, }.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."

Bearing in mind the aforesaid principles, it would be seen that FIR in question has since culminated into a challan and is pending consideration in the Court of learned Judicial Magistrate 1st Class, Manali which prima-facie establishes that a case against the petitioner is made out.

The uncontroverted allegations as made out from the records of the case and the documents submitted therewith prima-facie establishes that the allegations regarding the commission of the offence are neither absurd nor inherently improbable and it can also not be said that the basic ingredients of a criminal offence are not made out. This Court in exercise of its inherent powers cannot throttle the prosecution. Even otherwise, at this stage, this Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made in the FIR. Above all, there is no material whatsoever placed on the record whereby this Court can infer that the entire exercise of lodging the FIR then investigating the same was either frivolous, vexatious or oppressive.

Now, at this stage, to be fair to the petitioner he has relied upon a judgment delivered by the learned Single Judge of the Uttaranchal High Court in Criminal Misc. Application No. 448 of 2014 in case titled Himanshu Negi and others vs. State of Uttaranchal and another, decided on 19.8.2014 to canvass that in absence of any person having lodged a complaint regarding his having been prevented from proceeding in any direction, the proceedings against the petitioner are not maintainable. It is apt to reproduce paras 6 and 7 of the judgment which reads thus:

"6. The applicants have been charge-sheeted under Section 341 of IPC, which is penal Section for ''wrongful restraint''. ''Wrongful Restraint'' is defined under Section 339 of IPC to mean whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction, in which that person has a right to proceed, is said wrongfully to restrain that person. It is not indicated in the first information report as to who was prevented? Which person was prevented from proceeding in any direction, in which that person had a right to proceed? No such person has filed a complaint that he was prevented from proceeding in any direction. It was an agitation by a mob drawing the attention of the administration towards the condition of the road. School going children were going to the school. Nobody was prevented from proceeding in any direction, in which that person had a right to proceed. Further, it is not disclosed as to who prevented those persons? In this way, it cannot be said that any person was voluntarily obstructed from proceeding in any direction. Since the very ingredients of Section 339 of IPC are not made out, therefore, the applicants should not be tried for the offence alleged against them.

Further, it is not the allegation against the applicants that they constituted an ''unlawful'' assembly. They did not use force or violence in prosecution of the common object of such assembly. Therefore, it cannot be said that they committed offence punishable under Section 147 of IPC. It may be noted here that Section 147 of IPC provides for punishment for ''rioting''. The word ''rioting'' is defined under Section 146 of IPC to mean that whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of ''rioting''.

I am afraid, I cannot persuade myself to concur with the view taken by the learned Single Judge of Uttaranchal High Court in the aforesaid decision. Here is a case where the directions passed by the National Green Tribunal were being opposed, that too, by taking to the street not only the petitioner but hundreds of people who had formed an unlawful assembly near bus stand, Manali and marched to the gate of Van Vihar and sat on the road i.e. National Highway by obstructing the vehicular traffic and public tranquility. In such circumstances, it is not necessary that there must be an independent complaint as observed in Himanshu Negi''s case (supra), police itself can initiate proceedings as has been done in the instant case. There is nothing illegal or wrong with the procedure. The Court is not to go into the relative merits of the case as set out by the parties, but suffice it to say that no case for quashing of the FIR or challan is made out.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove, which is solely made for the purpose of deciding this petition.

In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed.