Kalu @ Sher Singh vs State of Haryana

S.S. Sudhalkar, J.

FIR No. 86 of 1990 has been registered against the petitioners at Police Station Ding, District Sirsa, for the offences under Sections 285/506 of the Indian Penal Code, 25/54/59 of the Arms Act and Sections 5/6 of the Terrorists and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as TADA). The complaint is given by respondent No. 3 viz Om Parkash son of Het Ram, as a result of which the FIR has been registered. The translated version of the complaint is reproduced as under :

"To the SHO, P.S. Mandi Ding.

It is submitted that I have been cultivating since many years ago the land of Sher Singh alias Kalu Ram son of Chanan Singh caste Arora Sikh, resident of Mandi Ding, but the girdawari is by way of fraud in the name of Sher Singh @ Kalu. Now for this time he wanted to get the possession of the land. On the intervening night at about 9.00 p.m. I went to the fields and saw that Sher Singh @ Kalu and two other young persons were present in the field. I asked that as to who they are. On this Sher Singh @ Kalu said that they are the owners of the fields. On this account there was a tiff between us. On hearing our commotion Ram Kumar son of Chuni Lal came there and in his witnesseth Sher Singh @ Kalu fired in the air and reloaded the pistol. In the meanwhile the neighbourers collected there. On this Sher Singh @ Kalu said that today myself is saved and threatened that if I will again enter the fields he will shoot him dead and will conceal my dead body and that will not be known to anybody and they went away from the fields. We also concealed ourselves on account of the fear. It is prayed that our case may be registered. The accused Sher Singh @ Kalu Ram etc. be got punished.

Applicant

Om Parkash S/o Het Ram,

Village Ding,

Dated 28.7.1990"

Petitioners have filed this petition for quashing the FIR and the subsequent proceedings arising thereto. The contention of the petitioners is that they are tenants in the shop situated at Bhadra. The landlords had filed eviction application against the petitioners which was dismissed by the Rent Controller and, thereafter, the landlords filed an appeal before the learned Additional District Judge, Nohar, District Ganganagar. That appeal was also dismissed. After dismissal of the appeal, the landlords started threatening the petitioners and to dispossess them at all costs. The petitioners were, therefore, forced to file an application for temporary injunction (copy Annexure P10). They have also contended apprehension of false involvement in criminal cases by the Police Station Ding. The petitioners moved an application under Section 438 of the Code of Criminal Procedure (hereinafter referred to as the Code) before the learned Additional Sessions Judge, Sirsa, who was pleased to grant anticipatory bail to them with a direction of giving at least four days prior notice to them, in case of their arrest (copy Annexure P5 & P6). The order Annexure P5 is dated 6.4.1990. The FIR Annexure P1 was registered on 28.7.1990.

The police presented the challan pursuant to the FIR. The petitioners contend that no case is made out against them and the whole case is a counter blast of the result of civil proceedings at Nohar and Bhadra by the landlords, that the eyewitness has sworn in affidavit stating therein that he had never seen such an occurrence (copy Annexure P8). The FIR is lodged for the purpose of blackmailing the petitioners so that they can be compelled to compromise with the landlords. The petitionerKalu is above 70 years old and he is an infirm and hard of hearing and does not have proper eyesight.

That Om Parkash (complainant) and Sham Sunder are brothersinlaw of Radhey Sham (respondent No. 4), who was at the relevant time Officer on Special Duty attached to Hon''ble Chief Minister, Haryana and it is alleged that this Radhey Sham wielded influence on the SHO, Police Station Ding for getting the petitioners ousted from the rented premises. In para 8 of the petition, it has been averred as under :

"That the perpetrator of the whole show is Om Parkash son of Bhajan Lal caste Mahajan Aggarwal, resident of Bhadra and his brotherSham Sunder, their motherSmt. Savitri Devi and another brother Chetan Kumar, their relations Sajjan Kumar son of Naurang Lal, Chindu son of Naurang Lal as there is an old litigation between the petitioners and these persons, who are the landlords of the tenancy under whom the petitioners are tenants in a shop situated in Bhadra."

I have heard Mr. Suresh Monga, learned counsel for the petitioners, Mr. Azad Singh, learned Additional Advocate General, Haryana, Mr. Rakesh Nagpal, learned counsel for respondent No. 3 and Mr. Ashutosh Mohunta, learned counsel for respondent No. 4.

Mr. Suresh Monga vehemently argued that the FIR has been got lodged against the petitioners with the connivance of the respondents with an ulterior motive of harassing them because they are not vacating the rented premises in Rajasthan. So far as jurisdiction is concerned, he has cited before me the case of Parkash Kaur v. State of Punjab and another, 1992(1) Recent C.R. 308. It is a judgment of a Full Bench of this Court wherein it was held that the jurisdiction of the High Court under Section 482 of the Code in respect of offences under the TADA was not ousted. Relying on this judgment of the Full Bench, Mr. Suresh Monga argued that this Court has jurisdiction to entertain this petition for quashing the FIR lodged for the offences under the TADA also.

In view of the law laid down by the Full Bench, the question of jurisdiction of this Court is covered in favour of the petitioners and, therefore, I proceed with the further discussion of the arguments in this case. The learned counsel for the petitioners has relied on two judgments regarding power of the Court under Section 482 of the Code regarding quashing of the proceedings. The first judgment relied by the learned counsel in this case is the case of Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojirao Angre and others, 1998(1) RCR(Crl.) 565 : AIR 1998 SC 709. The second judgment relied in this case is the case of State of Haryana and others v. Ch. Bhajan Lal and others, 1991(1) RCR(Crl.) 383 : AIR 1992 SC 604. It has been held by the apex Court in the case of Madhavrao Jiwaji Rao Scindia (supra) that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is further observed therein that Court should also take into consideration any special feature which appears in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

In the case of Ch. Bhajan Lal (supra), this Court has laid down the categories of cases in which the Court may in exercise of powers under Article 226 of the Constitution or Section 482 of the Code interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It has been clarified that this power should be exercised sparingly and that too in the rarest of rare cases. The categories mentioned in the judgment are as under :

"(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 cognizable offence but constitute only a noncognizable 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 ever 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."

Relying on these two judgments, the learned counsel for the petitioners has raised the following points :

(1) In view of the special feature that appeared in this case, it is obvious that the Court is being utilised for oblique purpose.

(2) The chances of ultimate conviction are bleak.

(3) The allegations in the FIR are absurd and improbable: and

(4) The FIR is lodged with the mala fide intention and the proceeding is maliciously instituted with an ulterior motive for harassing the petitioners.

Annexure P9 is a copy of the judgment of learned Additional District Judge, Nohar (Sriganganagar) dated 15.7.1986. It is an appeal against the judgment in a civil suit in which petitioners No. 1 and 2 and one Mohar Singh son of Sher Singh are the respondents. It is clear from the judgment that suit was filed in the trial Court by the appellants for possession of the suit property, which was dismissed. It appears from the judgment that the suit was partly allowed to the tune of recovery of Rs. 1833.36 and dismissed so far as prayer for eviction was concerned.

Learned counsel for the petitioners has also read before me the reply of respondent No. 4 Radhey Sham. Respondent No. 4 has admitted in the reply that Om Parkash and Sham Sunder are his brothersinlaw. The petitioners have contended in their petition that Om Parkash son of Bhajan Lal and his brother Sham Sunder, mother Savitri Devi and another brother Chetan Kumar, their relations Sajjan Kumar son of Naurang Lal and Chindu son of Naurang Lal are the proprietors of the old shop. It is admitted by respondent No. 4 that Om Parkash and Sham Sunder are his brothersinlaw. It is the contention of the petitioners that because of the high position respondent No. 4 wielded influence on the SHO, Police Station Ding for causing harassment for ousting the petitioners from the demised premises. The learned counsel argued that the case against the petitioners has been got registered at the behest of respondent No. 4. Respondent No. 4 states in the reply that he was posted as Officer on Special Duty to the Hon''ble Chief Minister, Haryana Chandigarh between December, 1989 and 1st week of April, 1991 though he has denied having yielded or exercised any influence on the SHO, Police Station Ding. He has denied in the written statement that he was never interested in ousting the petitioners from the premises mentioned in the petition. He has also contended that he did not know about any ejectment proceedings filed against the petitioners in the Courts of Bhadra and Nohar situated in the State of Rajasthan nor any criminal proceedings in District Sirsa.

A copy of the application for anticipatory bail is at Annexure P6. As mentioned above, it is dated 28th March, 1990 i.e. much prior to the FIR. In that application also it has been stated by the petitioners that Om Parkash and Sham Sunder brothersinlaw of Radhey Sham Chaudhary (respondent No. 4) and another Om Parkash Tholia son of Het Ram (complainant of the FIR) with the help of respondent No. 4 wanted to forcibly occupy the land owned and possessed by petitioner No. 1 at village Ding in order to put pressure on the petitioners for vacation of the shop. It is also alleged therein that Radhey Sham Chaudhary (respondent No. 4) had already spoken to SHO, Police Station Ding for extending help to Om Parkash, Sham Sunder and the abovementioned Om Parkash Tholia. In short, the petitioners have tried to show that respondent No. 4, the complainant and the owners of the land were trying to file some criminal case against them as early as on 28.3.1990 (the present FIR is registered on 28.7.1990 and the date of the alleged occurrence is 27/28.7.1990).

Om Parkash, the complainant of the FIR has filed his reply to the petition. He has practically admitted the case of the petitioners. He has stated that on the intervening night of 28/29/7.1990, Dharamvir Rathi, the then SHO, Police Station Ding called him in the Police Station and after taking his signatures on blank papers, the SHO prepared the matter of the complaint and got the same written from him on those blank papers. On the basis of the said complaint, the present FIR was registered. He has further stated in the reply that he was not present in the fields of petitioner No. 1 on 28.7.1990 at 9.00 p.m. nor did Sher Singh and his son or two other persons meet him nor Sher Singh or any other person fired gun shot on him. He has further stated that petitioner Kalu @ Sher Singh was the owner in possession of the land and that he (respondent No. 3) was not in possession, nor a tenant on the said land at any time and the FIR in question was registered by respondent No. 2 to get the shop vacated from Kalu etc. at Bhadra. He has further stated that Om Parkash son of Bhajan Lal is the owner of the shop and the said Om Parkash is the real brotherinlaw of Radhey Sham Chaudhary, an IAS officer of the Haryana cadre, who was posted as Officer on Special Duty to Chief Minister, Haryana at Chandigarh at the relevant time and the FIR was registered by SHO who was under pressure from respondent No. 4.

Respondent No. 3 has further contended that when Om Parkash and Sham Sunder sons of Bhajan Lal came to know that he was not deposing against the petitioners, then they went to his residence and threatened that if he did not depose against Kalu etc. then they would kill him. Faced with this situation, he went to Police Station Ding for lodging an FIR against Om Parkash and Sham Sunder on 13.12.1993 but the police flatly refused to lodge an FIR against them. Finding no other alternative, he filed a criminal complaint in the Court of learned Additional Senior Sub Judge, Sirsa on 14.12.1993 wherein the preliminary evidence of the said respondent was recorded by the Court. He is a poor man and had been under the constant pressure on his mind because of the threats at the relevant time. Therefore, he could not pursue the complaint against Om Parkash and Sham Sunder which was ultimately dismissed by the trial Court. Annexure R1 is a copy of the complaint given by respondent No. 3 against Om Parkash and Sham Sunder. It is dated 14.12.1993. The statement of respondent No. 3 is at Annexure R2 of the even date. Annexure R3 is the order dismissing the complaint in default.

The next point argued by the learned counsel for the petitioners is that the only independent witness is Ram Kumar and he has died. However, his affidavit (sworn before his death) is produced by him. It is at Annexure P8, Ram Kumar''s name appears in the complaint Annexure P1. He was the only witness named in the complaint and the translated version to that extent can be again reproduced as under :

"On hearing our commotion Ram Kumar son of Chuni Lal came there and in his witnesseth Sher Singh @ Kalu fired in the air and reloaded the pistol. In the meanwhile the neighbourers collected there."

The said Ram Kumar has stated in the affidavit Annexure P8 that he learnt that in the aforesaid FIR it was mentioned that Sher Singh loaded the gun in his presence and fired in the air. He has further stated that he had not witnessed any such occurrence and in fact no such occurrence took place in that village and that his name has falsely been mentioned in this case. His name is mentioned in this case on account of conspiracy in between Sham Sunder son of Bhajan Lal @ Gidara, Dharamvir, SHO Police Station Ding and Om Parkash son of Het Ram. The said Om Parkash was his friend and he was under this belief that he would falsely depose in this case. Annexure P10 is the certificate of death of said Ram Kumar and the date of death mentioned in it is 28th April, 1993. Respondent No. 2 Dharam Vir, SI/SHO Police Station Ding, District Sirsa has filed the reply on behalf of respondents No. 1 and 2. He has denied the allegations.

Learned counsel for the petitioners has also read over to me Annexure P2 which is Fard Jama Talasi. It is in connection with the FIR in question. It is mentioned in it that at the time of arrest of Sher Singh @ Kalu (petitioner No. 1), his personal search was carried out and from his personal search, Rs. 3,600/ and a bunch of 5 keys were recovered vide recovery memo.

Mr. Azad Singh, the learned Additional Advocate General argued that all these can be taken into consideration by the trial Court. There are six witnesses, out of which two are eyewitnesses and the others are official witnesses and he also contended that this Court has no jurisdiction to quash the complaint.

It can be seen that there was a litigation for eviction of the petitioners from the property belonging to brothersinlaw of respondent No. 4. Respondent No. 4 was also holding a high position in the State of Haryana. The complaint on the basis of which FIR is lodged, though mentions firing by a pistol yet it is an alleged firing in the air not causing injury to anybody. It is not necessary that firing should cause injury but not causing injury coupled with other facts will assume importance. No cartridges have been recovered and pistol was also not recovered. The complainant of the FIR has filed the written statement admitting the case of the petitioners. The witness, who was the only named witness in the FIR has also filed an affidavit in favour of the petitioners. Radhey Shamrespondent No. 4 has denied the allegations though he has admitted the relationship with the persons prosecuting the civil suit in the State of Rajasthan. Moreover, much prior to the lodging of the FIR, the application for anticipatory bail was filed and order of anticipatory bail was passed by learned Additional Sessions Judge, Sirsa on 6.4.1990. It will not be out of place to repeat that in the application for anticipatory bail Annexure P6 there are allegations against Om Parkash, Sham Sunder, Om Parkash (complainant), Radhey Sham Chaudhary (respondent No. 4) and others as early as on 28.3.1990.

Affidavits of witnesses/complainant and/or admissions in the written statements would normally not lead to the quashing of the complaint. However, there are special features of this case which cannot be ignored. In the civil litigation, the petitioners have succeeded. The petitioners allege that the FIR is lodged with an oblique motive. There is an allegation against respondent No. 4 for using his position and after the incident no cartridges have been recovered. The FIR goes to show an offence which if proved would lead to heavy punishment and in certain circumstances deny the right of bail during trial because it contains allegations of offence under Sections 5 & 6 of the TADA also. This case, therefore, can be considered to be a rarest of the rare cases where from the circumstances prima facie it can be inferred that the complaint has been filed with an oblique motive to misuse the powers of the Court and to achieve personal ends. In view of this position, the admissions made by the complainant and the alleged eyewitness Ram Kumar assumes importance. It can, therefore, be said that the petitioners have been able to establish from the circumstances shown by them that this is a case having special features and that FIR has been filed with an oblique purpose to utilise the judicial Court in achieving the relief which the civil Court did not grant. The allegations in the FIR in view of the above circumstances can be termed to be so absurd and inherently improbable and the FIR is manifestly attended with mala fide and maliciously instituted with an ulterior motive for harassing the petitioners.

These are the circumstances which the petitioners have been able to establish. The petitioners'' case has been supported by the abovementioned two rulings of the Apex Court and, therefore, considering the totality of the facts and circumstances and also the fact that this is one of the rarest of rare cases in which the quashing can be allowed, I find that the FIR Annexure P1 and the subsequent proceedings need to be quashed.

As a result, this petition is allowed. The FIR Annexure1 and its subsequent proceedings are hereby quashed.