Rajiv Jiwan vs State Of Himachal Pradesh

Anoop Chitkara, J

The Petitioner, who was President of High Court of Himachal Pradesh Bar Association, at the time of lodging of FIR, has come up before this

Court seeking quashing of FIR, registered against him for wrongful restraint, forming unlawful assembly, rioting, indulging in criminal force to deter

public servants from discharging their duties, intentional insult with intention to breach the peace, and criminal intimidation. It has been averred that the

lawyers were protesting peacefully against restricting the entries to the District Court complex Shimla from a shorter route, forcing them to take a

longer way, which had traffic jams, resulting in delay in attending to the Courts, because the Police had registered it due to wreaking vengeance with

malicious intentions to scuttle the agitation, and the Police arraigned him as the principal accused because he was supporting their cause, although he

was not even present at the spot.

The petitioner is seeking quashing of FIR no. 164, dated 22.07.2019, registered in Police Station (West), Shimla, under sections 341, 143, 147, 149,

353, 504, and 506 IPC, in which the Police has arraigned him as an accused, apart from a large number of Advocates.

FACTS:

The gist of the facts apposite to decide the present petition is as follows:

(a) The Police Station West, Shimla, registered the above mentioned FIR on the basis of the complaint of Inspector Dinesh Kumar, SHO of the said

Police Station.

(b) Inspector Dinesh Kumar, on July 22, 2019, informed his Police Station that he received telephonic information from ASI Ramesh Chand, who was

deputed on Traffic duty, that a large number of Advocates had assembled at Boileauganj bazar, of Shimla town. These Advocates were insisting on

taking their vehicles through the restricted road, leading to Boileuganj via Chaura Maidan, though they did not have any valid permits to do so.

(c) On this, the complainant SHO reached the spot of agitation. He noticed a large number of Advocates assembled at the place, and the Petitioner

was one of them. The agitated Advocates had blocked the road by stopping their vehicles in the middle of the road.

(d) The SHO asked them the reasons for creating the traffic jam by halting their vehicles. On this, the lawyers asserted to drive their cars through the

restricted road itself. After this, the SHO asked the lawyers to show the permits for driving on the restricted road, upon which the lawyers replied that

he could not stop them from driving their vehicles, and at the most, he could challan their cars. After that, these lawyers turned very aggressive and

started pushing the police officials, inflicted fist blows, and hurled abuses on them. On this, the complainant tried to calm down them, but they kept on

hurling abuses, gave pushes, fist blows, and threatened to burn the police station and told the SHO that they would teach him a lesson that he would

never forget in his life. After that, these lawyers sat in protest at the spot and raised slogans.

(e) After this, the SHO, Inspector Dinesh Kumar directed the Police Station to register FIR against the lawyers, and named the petitioner as the

person present at the spot.

ANALYSIS AND REASONING:

The following aspects would be relevant to conclude this petition: -

a) The FIR nowhere mentions the role of the petitioner. Even if this Court presumes the petitioner present at the spot, it would still not lead to an

automatic inference of his acting with a common object with those who had inflicted fist blows, hurled abuses, and threatened the SHO and also

threatened to burn the Police station.

b) Although the police got video recording of the incident, the State did not bring to the notice of the Court the said portion of the disk where the

Petitioner is seen inflicting fist blows, hurling abuses, or threatening the SHO, or threatening to burn the Police station.

c) In the complaint, the SHO did not mention the time, and there is no explanation of the non-mentioning of the time.

d) Even if this Court believes all the allegations in FIR as truthful, still there is no allegation against the petitioner of participating in any criminal act.

e) Mere presence at the spot in the demonstration would not invite criminal act in the facts and nature of allegations made in the present FIR.

f) Holding peaceful processions, raising slogans, would not be and cannot be an offense under any law.

g) Therefore, naming and arraigning the petitioner as an accused is a gross abuse of the process of law. If proceedings are allowed to be continued, it

shall amount to the miscarriage of Justice.

h) Given the cumulative effect of all the factors mentioned above, it is one of the exceptional cases, where this Court should exercise its inherent

jurisdiction under Section 482 of the Code of Criminal Procedure.

JUDICIAL PRECEDENTS ON JURISPRUDENCE OF QUASHING:

The law is almost settled by a larger benches’ judgements of Supreme Court that the offences, those are not listed as compoundable, under

Section 320 CrPC, can also be compounded, and the procedure to follow would be by quashing the FIR, and consequent proceedings.

a) In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, a three-member Bench of Hon’ble Supreme Court holds,

…. … ...It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to

prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused

person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory

stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However,

we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be

cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused

person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the

criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is

a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceedings on that ground.

Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First

Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in

such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide

whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to

allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the

High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do

constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to

prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or

where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its

appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A, the High Court would not embark upon

an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to

any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against

the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the

matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide : In Re: Shripad G. Chandavarkar, AIR 1928

Bom 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal 78,6 Dr. Shankar Singh v. State of Punjab, 56 Pun LR 54 : (AIR 1954 Punj 193,)

NripendraBhusan Roy v. GobinaBandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. SivaramaSubramania, ILR 47 Mad 722 : (AIR

1925 Mad 39).

b) In MadhavraoJiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, 1988 (1) SCC 69,2 a three judges’ bench of the Hon’ble Supreme

Court holds: -

The legal position is well-settled 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 also for the court to take into consideration any special features

which appear 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 is 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.

Thus, in the peculiar facts and circumstances, this Court is inclined to invoke the inherent jurisdiction under section 482 CrPC to quash the FIR and

all subsequent proceedings.

In Himachal Pradesh Cricket Association v. State of Himachal Pradesh (SC); 2018 (4) Crimes 324, Hon’ble Supreme Court holds as under: -

As far as Writ Petition (Criminal) No. 135 of 2017 is concerned, the appellants came to this Court challenging the order of cognizance only

because of the reason that matter was already pending as the appellants had filed the Special Leave Petitions against the order of the High Court

rejecting their petition for quashing of the FIR/Chargesheet. Having regard to these peculiar facts, writ petition has also been entertained. In any case,

once we hold that FIR needs to be quashed, order of cognizance would automatically stands vitiated.â€​

Consequently, this petition is allowed, and the FIR no. 164, dated 22.07.2019, registered in Police Station (West), Shimla, under sections 341, 143,

147, 149, 353, 504, and 506 IPC, is quashed. Since FIR has been quashed, all the consequential proceedings are also quashed and set aside. Petition is

allowed. All pending application(s), if any, stand closed.