Nazir Munda vs The State of Jharkhand

Heard learned counsel appearing for the petitioner as well as learned Addl. P.P. for the State.

This criminal miscellaneous petition has been filed under section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding including the order dated 10.03.2008 passed by the Judicial Magistrate, Deoghar in P.C.R. Case No.973 of 2007 corresponding to T.R. No.1111 of 2008, whereby and whereunder, the learned Judicial Magistrate has found prima-facie case against the petitioner under Sections 323 / 448 / 379 / 34 of the Indian Penal Code and ordered for issue of summons against the petitioner.

Learned counsel for the petitioner submitted that the allegation against the petitioner is that on 2.12.2007, the petitioner who is the accused no.1 assaulted the complainant with fist blows and slaps. On being ordered by the petitioner, the accused no.2 broke open the lock of the house of the complainant and committed theft of one stove (kerosene oil) and one torch. The learned Magistrate vide order dated 10.03.2008 considered the statement of the complainant on solemn affirmation and five witnesses examined by him during the inquiry, all of whom supported the case of the complainant in toto and found prima-facie case against the petitioner for the offence punishable under Sections 323 / 448 / 379 / 34 of the Indian Penal Code.

Learned counsel for the petitioner urged upon the Court to look to a document which was not produced before the Magistrate before taking cognizance but fairly conceded that while examining the legality of the order passed by the Magistrate in exercise of the power under Section 482 Cr.P.C., this Court cannot look into a document which was not produced before the Magistrate at the time of taking cognizance. Learned counsel for the petitioner submits that this case has falsely been foisted against the petitioner. Hence, the said order dated 10.03.2008 as well as the entire criminal proceeding be quashed. Learned Addl. P.P. vehemently opposed the prayer for quashing the said order dated 10.03.2008 as well as the entire criminal proceeding and submitted that the complaint and the statement of the complainant on solemn affirmation as well as the statement of five witnesses on oath examined by the complainant during enquiry, who have supported the case of the complainant, is sufficient to constitute a prima facie case for the offences punishable under Sections 323 / 448 / 379 / 34 of the Indian Penal Code and the learned Magistrate having rightly found prima-facie case for the said offences, his order does not deserve interference of this court. Hence, this criminal miscellaneous petition being without any merit be dismissed.

After going through the entire records, I found that there is direct allegation against the petitioner who is the accused no.1 of the case of having caused hurt to the complainant by assaulting him with fist blows and slaps. There is also allegation against him that he in furtherance of common intention with accused no.2 broke open the lock of the house of the complainant and committed theft of a stove and one torch.

The principle of law regarding quashing of the complaint is now well settled Hon''ble Supreme Court of India in the case of Vir Prakash Sharma vs. Anil Kumar Agarwal and Another reported in (2007) 7 Supreme Court Cases 373 in Paragraph-7 has held that "the principle underlying exercise of jurisdiction by the High Court under Section 482 of the Code of Criminal Procedure in now well settled viz. that the allegations contained in the complaint petition even if given face value and taken to be correct in its entirety do not disclose an offence or not is the question."

The Hon''ble Apex Court in the case of State of Haryana & Others Vs. Bhajan Lal & Others reported in AIR 1992 SCC 335 in paragraph - 102 has held as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following category of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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 F.I.R. 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 F.I.R. 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."

Further in Paragraph-103 of State of Haryana & Others Vs. Bhajan Lal & Others (supra), the Hon''ble Apex Court has held as under:-

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

The Hon''ble Apex Court reiterated the scope of exercise of power under Section 482 of Cr.P.C. in Paragraph-8 of the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663 as under:-

"8.In proceedings instituted on the 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 the case of N. Soundaram vs. P.K. Pounraj and Another, reported in (2014) 10 SCC 616 in Paragraph 13, the Hon''ble Apex Court also concurred with the settled principle of law relating to exercise of power under Section 482 of Cr.P.C. as under:-

"13. It is well settled by this Court in a catena of cases that the power under Section 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 Cr.P.C. An investigation should not be shut out at the threshold if the allegations have some substance."

Considering the aforesaid facts and circumstances of the case as well as the principle of law discussed above, I am of the opinion that this is not a fit case which warrants interference of this Court with the order taking cognizance dated 10.03.2008 or to accede to the prayer of the petitioner of quashing the entire criminal proceeding of the said case i.e. P.C.R. case no.973 of 2007 in exercise of the power under Section 482 of the Cr.P.C.

Accordingly, this criminal miscellaneous petition being without any merits is disposed of.