Kali Ram and Others vs State and Another

J.P. Semwal, J.—The present application u/s 482 Code of Criminal Procedure has been filed by Kali Ram and Ors. for quashing the proceedings in Crime Case No. 4/9 of 1987, State v. Kail Ram and Ors., pending in the court of Munsif Magistrate, Kairana under Sections 147, 148, 452, 324, 323 IPC, P. S. Kandhla.

The facts leading to the present application may be narrated in nut shell as follows.

The murder of Indal took place in village Ellum on 9-6-1986. This Indal had executed a will in favour of Chandra Pal and the sons of Kali Ram in April, 1986. It is alleged this enraged Sahadeo, opposite party No. 2, and his sons as they wanted to have their shares in the property of Indal. On the fateful day, i.e. 9-5-1986, Sahadso and his three sons armed with weapons came to the Gher of Kali Ram at about 2.30 P.M. and Sahadeo abused Indal saying that he had not executed any will in favour of his sons and that they would not leave him alive. Uttering these words they caught hold of Indal and dragged him out of the Gher and started attacking him by their respective weapons. Kail Ram, Sheesh Pal, Vinod and Ra] Kumar tried to save Indal Singh but they were also attacked and Injured. Jai Prakash caused injury to Sheesh Pal by a fire weapon and others inflicted Injuries to others with Gandasa, Bhala and Ballam. Indal Singh died on the spot while other injured persons were taken to hospital. One Gordhan Singh lodged a report of the said incident at police station Kandhla on 9-5-1986 at 2.30 P. M. (vide copy of the FIR Annexure-I). It appears that subsequently on 19-6-1986 one Pirthi Singh, son of Bhullan Singh, lodged another FIR in respect of the aforesaid incident In which Indal lost his life (vide copy of FIR Annexure-II). This FIR was lodged by Prithi Singh against the present applicants and this has given rise to the present proceedings.

I have heard Sri Vinay Singh, learned counsel for the applicants at considerable length as well as the learned Additional Government Advocate appearing for the State. Sri Singh has taken me through all the documents which have been filed in support of the prerent application. It was contended by him that the police investigated both the aforesaid cases which were lodged by Gordhan Singh and Pirthi Singh and submitted charge-sheets against Sahadeo, opposite party no 2 and his sons on the basis of the FIR lodged earlier on 9-5-1986 by Gordhan. The Chief Judicial Magistrate committed the said case to the court of Sessions, which is now pending before the Ist Additional Sessions Judge, Muzaffar Nagar, as S.T. No. 289 of 1986, State v. Sahadeo and Ors., under Sections 307/302 IPC police Station Kandha''a district Muzaffar Nagar.

Regarding the FIR lodged subsequently by Prithi Singh, the police after investigation filed final report against the present applicants, who were named as accused in the FIR lodged by Prithi Singh (vide copy of the final report. Annexure-9). This final report was not accepted by the Munsif Magistrate, who by his order dated 1-1-1987 took cognizance of the case against the applicants under Sections 147, 452, 324, 323 IPC and summoned them for 4-3-1987 (vide copy of the order dated 1-1-87, Annexure-10). It Is against this order of summoning that the applicants have come up in these proceedings u/s 482 Code of Criminal Procedure in this Court.

Learned counsel for the applicants has vehemently argued that summoning of the applicants even after the final report having been submitted by the police is an abuse of the process of the Court. So far as the above facts are concerned, they are admitted and not disputed by the Additional Government Advocate. The only point to be seen in these proceedings is whether the proceedings which have been initiated against the applicants by the Munsif Magistrate by his order dated 1-1-1987 should go on or be quashed.

Learned counsel for the applicants has enumerated three grounds for challenging the said prosecution of the applicants. Firstly, that the police had thoroughly investigated the case and had found no evidence against the present applicants during the investigation and that the learned Munsif Magistrate had taken cognizance without any protest petition. He argues that in the FIR filed by Prithi Singh even the names of the witnesses are not mentioned and that the witnesses Mahipal, Jai Deo, and Ranjeet, who were examined by the police did not support the case alleged in the FIR lodged by Pirthi Singh. It was further argued that though Sahadeo Singh was examined by police u/s 161 Code of Criminal Procedure and he had named Jai Deo, Ranjeet and Phoola and others, who arrived at the scene of occurrence. The aforesaid witnesses did not support his version.

Learned counsel for the applicants gracefully conceded that he is not challenging the jurisdiction or powers of the Magistrate concerned to summon the accused after declining to accept the final report. No doubt, in this case the police submitted the final report and the Magistrate disagreeing with the said final report took cognizance. When the police reports that no case has been made out still than the Magistrate can take cognizance and start proceedings (See the case of H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh),

The contention, therefore, that the Magistrate should not have taken cognizance and issued process is devoid of snbstance in view of legal position.

Next, it was argued that the second FIR filed by Pirthi Singh is by way of a counterblast against the first FIR which was filed against Sahadeo and others. No doubt, reports and counter-reports are usually lodged regarding incidents and it is for the courts concerned to examine the matter during the trial as to which case is false and has been planted as a counterblast. Thirdly, learned counsel urged that in support of the FIR lodged by Pirthi Singh there is no evidence at all to justify the issuance of the process against the applicents. Learned counsel submitted ''hat the prosecution at the initial stage can be asked to be quashed and there is no bar to it. He further urged relying on para 7 of the report in Madhavrao Jiwali Rao Scindia v. Sambhajirao Chandrajirao Angre 1988 ACR SC 312 , that special features which appear in a particular case to consider whether it is expedient end in the interest of justice to permit a prosecution to continue. That case relates to breach of trust and the facts of the said case do not govern the facts of the present case No doubt, it is to be seen in the proceedings u/s 482 Code of Criminal Procedure as to whether uncontroverted allegations as made prima facie establish the offence as has been observed in the aforesaid paragraph of the report of the Supreme Court. If there is no evidence then of course, the prosecution cannot be held good but it may be mentioned that the powers possessed by the High Court u/s 482 Code of Criminal Procedure are extraordinary and very wide and the very pientltude of the power requires great caution in exercising this power. The inherent power conferred by Section 482 Code of Criminal Procedure should not be exercised to stiffie a legitimate prosecution The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidenoe has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Janata Dal Vs. H.S. Chowdhary and Others, . Pending proceedings in the exercise of the inherent powers u/s 482 of the Code, no doubt, can be quashed, if it appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged, such as absence of the requisite sanction, or where the allegations in the First Information Report or the complaint, even if they are taken in their face value and accepted in their (sic), do not constitute the offence alleged, or where the allegations made against the accused person do constitute an offence alleged but there is other no Segat evidence adduced In support of the case or the evidence adduced clearly or manifestly fails to prove the charge. The High Court will not embark upon an enquiry as to whether the evidence in question is reliable or not (See R.P. Kapur Vs. The State of Punjab, Thus at this, stage what is to be seen is whether the allegations made in the FIR on the basis of which prosecution was launched and the evidence collected to constitute or spell out any office or not the argument of the learned counsel for the applicants is that Mahipal. Jai Deo and Ranjeet, who are the alleged witnesses in the FIR filed by Pirthi Singh are not supporting the prosecution case. I have been taken through the FIR lodged by Pirthl Singh, which is Annexure-2, the statement of Pirthi Singh u/s 161 Code of Criminal Procedure. (Annexure-5), and the statement of Sahadeo Singh (Annexure-4). It is mentioned in the FIR itself (Annexure-2) that the report had been seat on 12-5-1986 but the police did not take any action The copy of the Injury report of Sahadeo as well as the copy of the earlier report were annexed with this FIR dated 19-5-1986. A perusal of the statement of Pirthi Singh u/s 161 Code of Criminal Procedure goes to show that his brother-in-law Sahadeo had narrated to him the incident and that he had made an application to the Superintendent of police on 12-5-1986, but no action was taken and that when on 14-5-1986 he met Sahadeo Singh in jail then he narrated about the incident and the FIR was lodged. The statement of Sahadeo Singh u/s 161 Code of Criminal Procedure indicates that the incident had taken place in his presence In which Kali Ram and his sons, namely the applicants, armed with lethal weapons attacked Indal and Indal was killed on the spot. It also Indicates that Kali Ram and his sons also attacked Sahadeo, as a result of which he received injuries and was carried to Shamli Hospital. It is also mentioned in Annexue-4 that his adversaries had in collusion planted a false case against him and had made him accused. It is further stated that Sahadeo had also Inflicted injuries on the accused persons in self-defence.

From a perusal of the aforesaid documents, it cannot be said that no offence Is disclosed or spelled out or that there is no legal evidence against the applicants. The question of credibility of the witnesses cannot be inquired, nor the facts can be scrutinised in these proceedings. This Court in these proceedings cannot usurp the funotion of the trial court by appreciating the evidence. It cannot be said that the FIR lodged by Sahadeo Singh does not spell out any offence. The mere fact that the FIR was belated by itself is no ground to say that it is a false case, or that it has been filed as a counter blast.

Learned Addl. Government Advocate appearing for the State argued that u/s 227 Code of Criminal Procedure if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the aocused and the prosecution, the Sessions Judge finds that there is no sufficient ground for proceeding against the accused, he may discharge the aocused. He rightly argued that.it is for the Sessions Judge to consider the submissions on this point and not for this Court.

As regards the contention that the second FIR was lodged with oblique motive and the chances of ultimate conviction are bleak and, therefore, the prosecution should be quashed, I have carefully considered this submission also but at this stage there is no ground to indicate that the second FIR does not spell out any offence on the part of the alleged wrong doers or that there are special features in this case where the prosecution should not be allowed to proceed it is of course, open to the applicants to canvass their contentions before the learner Sessions Judge at the time of framing charge or discharge, as the case may be. The Inherent powers of this- Court u/s 482 Code of Criminal Procedure cannot be exercised in this case when it involves examination of the evidence.

No other point was argued.

For the foregoing discussion, it is not a fit case to invoke inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure for quashing the criminal proceedings as prayed.

In the result, the present, application u/s 482 Code of Criminal Procedure falls and is accordingly dismissed.

The Interim order granted in this case by this Court dated 31-1-1987 is hereby vacated.