Ikram And Three Others vs State Of Uttarakhand And Another

Ravindra Maithani, J

This petition has been filed for quashing the order dated 04.09.2019 passed in Criminal Revision No. 11 of 2017, Ikram & others vs. State of Uttarakhand and others, by the Court of 1st Additional Sessions Judge, Roorkee, Haridwar.

This is third round, the dispute reached before this Court. Initially, respondent no.3 filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'the Code') against the petitioners and another, which after obtaining the report from the concerned Police Station was rejected on 17.08.2009 and Revision filed against the same was also rejected on 21.03.2011. (criminal revision no. 282 of 2009, in the Court of IInd FTC/Additional Sessions Judge, Haridwar).

This order dated 21st March, 2011 was challenged in Criminal Misc. Application No. 1023 of 2012 before this Court, which was also dismissed on 20.09.2012. That was the first round of litigation.

Respondent no.3, thereafter, filed a criminal complaint under Section 200 of the Code against the petitioners and another for the offences punishable under Sections 325, 452, 504 and 506 of IPC before the Additional Chief Judicial Magistrate, Roorkee being Criminal Case No. 2814 of 2012, in which, after the inquiry under Section 200 and 202 of the Code vide order dated 08.03.2013, petitioners and another were summoned to answer the accusation under Sections 325, 452, 504 and 506 of IPC. This order taking cognizance and summoning the petitioners was challenged before this Court of under Section 482 of the code (C-482 Petition No. 1009 of 2015), which was dismissed on 12th August, 2015. While dismissing the petition, this Court also observed that petitioners could have liberty to move appropriate application for discharge under Section 245 of the Code.

Trial of the court proceeded. Evidence under Section 244 of the Code was recorded. It is, at this stage, an application for discharge was filed in by the petitioners. By the Order dated 16.11.2016, the court of Additional Chief Judicial Magistrate, Roorkee, District Haridwar observed that there are sufficient material to frame charges against the petitioners for the offences punishable under Sections 325, 452, 504 and 506 of IPC. This Order dated 16.11.2016 was further challenged in Criminal Revision No. 11 of 2017 before the 1st Additional Sessions Judge, Roorkee, District Haridwar. The Criminal Revision was also dismissed vide impugned order dated 04.09.2019. It is under challenge.

Learned counsel for the petitioners would argue that since filing application under Section 156 (3) of the Code, respondent no.3 has changed his stance. Initially, in the application under section 156(3) of the Code, name of two witnesses Mahipal and Moazzim were recorded, who on 10th August, 2009 submitted their affidavits before the In-charge, Police Station concerned that they did not witness the incident. It is argued that subsequently, in his examination under Section 244 of the Code, respondent no. 3 did not name Mahipal and Moazzim as witnesses; earlier in the application under Section 156(3) of the Code it has been said that respondent no. 3 and his wife Naseema were beaten up, subsequent thereto, at that stage of Statement under Section 244 of the Code, according to Reshma, wife of respondent no.2, his daughter Reshma was also beaten; there are contradictions in the statements of respondent no.3 and his wife Naseema recorded under Section 244 of the Code; with regard to medical examination of Naseema, while according to respondent no.3, his wife was not medically examined, whereas, on the other hand, according to Naseema, she was also medically examined. Learned counsel would argue that there are contradictions in the statements of respondent no. 3 and his wife. Even, prima facie, the case is not made out against the petitioners. There are no grounds for framing charges against the petitioners. The petitioners ought to have been discharged, but the learned court did not consider these aspects on 16.11.2016 held that mini trial cannot be conducted at this stage. The order dated 16.11.2016 passed by the Trial Court was wrongly upheld in the revision, which is bad in the eyes of law and deserves to be set aside.

Of an incident held on 4th August, 2009, after 10 years this court is confronted with a question as to whether the charges should be framed or not? In the case, emphasis has been laid that the witnesses named in the application under Section 156(3) of the Code and in the complaint, had filed affidavits before the Police prior to filing of an application under Section 156(3) of the Code with the averments that they did not witness the incident. The question is why did they file the affidavits and who approached them? To this, it is replied that in the application under Section 156(3) of the Code, respondent no.3 had stated that he had given a report to the police, which was not lodged and investigated. But, there is another question, prior to rejection of the application under Section 156(3) of the code on 17.08.2009, the court had sought a report from the Police and the Police had categorically stated that no report was lodged at the Police Station. The contents of the Police Report are incorporated in the order dated 17.08.2009. It reveals that at that time Police had not informed that any of the witnesses had filed affidavits denying to have witnessed the incident. This aspect need not to be discussed at this stage any further.

Section 245 of the Code provides for the situations when the accused shall be discharged, it reads as under:

"245. When accused shall be discharged.- (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."

Perusal of this provision would reveal that discharge is permissible only when even if un-rebutted facts adduced could not warrant the conviction.

This Court is hearing the petition under Section 482 of the Code here. The scope is not very wide to meticulously examine the evidence. In the case of Amit Kapoor vs. Ramesh Chander, (2012) 9 SCC 460, the Hon'ble Supreme Court has held that " 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". It has further been held by the Hon'ble Supreme Court that "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."

It is argued that in the instant case, respondent no.3 has not been consistent. The inconsistency which is indicated is with regard to as to whether the wife of respondent no.3 was medically examined or not and as to whether daughter of respondent no.3 was also beaten up or not. It has been observed many a times that it is not un-common in this country that the witnesses may exaggerate in evidence at various stages of the proceedings or make improvement in their statement. Evidence is appreciated to find out the truth. At this stage, such meticulous examination is not required.

The Court perused the statements of the witnesses recorded at the stage of 244 of the Code. This Court is of the view that it is not a case in which the petitioners ought to have been discharged. Learned trial court as well as revisional court have rightly rejected the contention of the petitioners. There is no illegality in the impugned order, which may in any manner warrant any interference. Hence, instant petition deserves to be dismissed.

The petition is dismissed.