Rakesh Kumar And Others vs State Of Mp And Anr

This application under Section 482 of CrPC has been filed against the order dated 11/09/2014, passed by Fourth ASJ, Morena in Criminal Revision

No.97/2014, thereby affirming the order dated 16/07/2014 passed by Chief Judicial Magistrate, Morena in Crime No.509/2012, by which the closure

report filed by the police was not accepted and the cognizance was taken for offence under Sections 307, 341, 34 of IPC.

The necessary facts for the disposal of the present application in short are that the applicant no.3 Rajkumar Sharma had lodged a FIR against the

respondent No.2 and three more accused persons to the effect that on 05/10/2012, at 07:30 in the morning when his son Pawan was coming back to

his house and the applicant No.3 was following his son, at that time, the respondent No.2 came there and instructed that although the dispute of the

applicant No.3 as well as his son Pawan is going on with Amresh Sharma the applicant No.2, but since respondent No.2 has taken over the Cold Store

as well as two bigha land from Amresh Sharma, therefore, now the applicant No.3 and his son should not cultivate the said land. When the applicant

No.3 Rajkumar Sharma and Pawan replied that they would continue to cultivate the said land, then the other three accused persons, namely, Munna,

Mukesh and Indraveer came on the spot. The respondent No.2 fired a gunshot causing injury on the right thigh of Pawan. Pawan was taken to

Ambah Hospital, from where he was referred to District Hospital, Morena and on arrival at District Hospital, Morena, the doctor declared deceased

Pawan as dead. On the report of applicant No.3, the police registered a Crime No.505/2012 against the respondent No.2 and three more accused

persons, namely, Muna, Indraveer and Mukesh for offence under Sections 307, 294, 323, 34 of IPC. The statements of the witnesses were recorded

in the said case and the witnesses in their case diary statements have also stated that while fleeing away, an indiscriminate firing was done by the

accused persons in Crime No.505/2012 and they were also saying that now the complainant party should also be falsely implicated for causing gunshot

injuries. The police after concluding the investigation has filed charge sheet against the respondent No.2 as well as three more co-accused persons. It

is submitted that in order to create a counterevidence, the respondent no.2 by causing a self-inflicted injury, lodged a FIR against the applicants. The

police after concluding the investigation, came to a conclusion that a false report has been lodged and accordingly, filed the closure report. The closure

report was not accepted by the Magistrate by order dated 23/09/2013 and accordingly, a direction for further investigation was given. After making

further investigation, the police once again filed the closure report pointing out that no offence is made out. However, the second closure report was

not accepted by the Magistrate by order dated 22/03/2014 on the ground that earlier, the police was directed to carry out the further investigation, but

the closure report which has been filed by the police once again indicates that no further investigation has been done, accordingly, the matter was

again remanded back. The police thereafter carried out the further investigation and for the third time filed the closure report. The CJM, Morena by

order dated 16/07/2014, rejected the third closure report filed by the police and took cognizance against the applicants. Challenging the order dated

16/7/2014 passed by CJM, Moena, the applicants had filed a criminal revision which too has suffered dismissal by order dated 11/09/2014 passed by

4th ASJ, Morena in Criminal Revision No.97/2014.

Before commencement of the arguments the counsel for the applicants was asked about the stage in the trial. The counsel for the applicants fairly

conceded that during the pendency of this application,the charges have been framed, but submitted that only one witness has been partially examined

so far and the trial has not reached to an advance stage. It is further submitted by the counsel for the applicants that in the light of law laid down in the

cases of Sathish Mehra Vs. State (NCT of Delhi) reported in (2012) 13 SCC 614 and Ravikant Dubey and Others Vs. State of M.P. and another,

reported in 2014 Cr.L.R.(M.P.) 162, it is clear that the petition under Section 482 of CrPC cannot be rejected merely on the ground that trial has

begun and even some other witnesses have also been examined during pendency of this petition.

The Supreme Court in the case of Satish Mehra (supra) has held as under:-

“13. Though a criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged

in the police station under Chapter XII of the Code has to be brought to its logical conclusion in accordance with the procedure prescribed, power has

been conferred under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding

amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of this Court in R.P. Kapur v.

State of Punjab wherein the parameters of exercise of the inherent power vested by Section 561-A of the repealed Code of Criminal Procedure, 1898

(corresponding to Section 482 CrPC, 1973) had been laid down in the following terms: (AIR p.869, para 6)

(i) Where institution/continuance of criminal proceedings against an accused 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;

(ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction;

(iii) where the allegations in the first informationreport or the complaint taken at their face value and accepted in their entirety, do not constitute the

offence alleged; and

(iv) where the allegations constitute an offencealleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to

prove the charge.

The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle

that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as

to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound

to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This

is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The

power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the

narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so

warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage

thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be

somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked

into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if

accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused.

The above nature and extent of the powerfinds an exhaustive enumeration in a judgment of this Court in State of Karnataka v. L. Muniswamy

(1977) 2 SCC 699 which may be usefully extracted below : (SCC pp. 702-03) “7. The second limb of Mr Mookerjee's argument is that in any

event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any

charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime,

says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the

belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal

Procedure, 2 of 1974, provides that:

This section is contained in Chapter XVIII called “Trial Before a Court of Sessionâ€. It is clear from the provision that the Sessions Court has the

power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is

not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to

enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for

proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to

determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to

Section 561-A of the Code of 1898, provides that:

In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to

continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the

High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought

not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very

nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the

interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the

legislature. The compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which

seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width

and contours of that salient jurisdiction.â€​

It would also be worthwhile to recapitulate an earlier decision of this court in Century Spinning & Manufacturing Co. vs. State of Maharashtra

(1972) 3 SCC 282 noticed in L. Muniswamy’s case (Supra) holding that: (SCC p. 704, para 10)

 “10 …. the order framing a charge affects a person’s liberty substantially and therefore it is the duty of the court to consider judicially

whether the materials warrant the framing of the charge. It was also held that the court ought not to blindly accept the decision of the prosecution that

the accused be asked to face a trial.â€​

In the case of Ravikant Dubey (supra) a Co-ordinate Bench of this Court has held as under :-

“8. In view of the above, the questions of law which requires consideration are as follows: (i) Whether petition preferred by the petitioners under

Section 482 of the Code for quashing the FIR can be entertained, when trial has been started and evidence of some witnesses have also been deposed

before the Trial Court ? (ii) Whether evidence recorded by Trial Court during trial can be considered for quashing the FIR ? (iii) Whether any ground

is available for quashing the FIR in view of the facts and laws available on record ? Regarding question of law no. (i) :- 9. Learned Senior Counsel for

the petitioners submitted that inherent powers can be used at any stage to prevent abuse of process of any Court or otherwise to secure the ends of

justice. It makes no different whether trial has been started or not and whether some evidence has been deposed before the Trial Court or not. In

support of his contention he placed reliance in the case of Sathish Mehra (supra) and Joseph Salvaraja Vs. State of Gujrat and others, (2011) 7 SCC

59.

Therefore, in the considered view of this Court this petition is maintainable also even when trial is at advance stage. The question is answered

accordingly.â€​

Considering the submissions made by the counsel for the applicants that the trial might have begun and even some witnesses might have been

examined, but still the petition filed under Section 482 of CrPC can be considered, therefore, the parties are heard on merits.

It is submitted by the counsel for the applicants that respondent No.2 Umesh Singh Tomar has lodged a report against the applicants alleging that at

about 08:00 am while he was coming back to his house in his Scorpio four wheeler from the warehouse and reached in front of the house of one

Lajjaram Gaur, then his vehicle was stopped by the applicants by parking a tractor in the mid of the road. When he came down from the vehicle, then

the accused persons started assaulting him. Amresh came along with a gun and exhorted that the respondent No.2 should be caught and therefore,

Amresh with intention to kill to the respondent No.2 fired a gunshot from his 315 bore gun from a distance of 15 feet, causing injury on his left leg.

The neighbours had shut the doors of their houses. The respondent No.2 rushed to his house from where he has been brought to Ambah Hospital, and

he was referred to District Hospital, Morena and now he is at Gwalior and Dehati Nalishi was recorded at JA Group of Hospital, Trauma Centre,

Gwalior.

Challenging the FIR lodged by the respondent No.2, it is submitted by the counsel for the applicants that the said FIR was lodged by way of counter-

blast to the FIR lodged by the applicants in Crime No.505/2012. As per Crime No.505/2012 which was lodged by the applicant No.3 that the deceased

Pawan was shot by the respondent No.2 at 07:30 am on the public way, whereas according to the present FIR lodged by the respondent No.2, the

incident is alleged to have taken place at 08:00 am. It is not possible because by that time, deceased Pawan had already suffered a gunshot injury and

he was already brought to Ambah Hospital where even the Dying Declaration of the deceased Pawan was also recorded at 08:00 am. The deceased

Pawan was admitted in Ambah Hospital. Therefore, it is clear that deceased Pawan had already reached to Hospital Ambah prior to it. It is further

submitted that even otherwise the doctor had opined that the injury sustained by the respondent No.2 could have been a self-inflicted injury because it

was shot from a very short distance whereas according to the FIR, the applicant No.2 Amresh had fired a gunshot from a distance of 15 feet and the

allegations made in the FIR do not corroborate with the medical evidence. It is submitted by the counsel for the applicants that as per the query

report given by the doctor, the direction of the injury sustained by the injured respondent No.2 Umesh Singh Tomar was parallel to the earth, that

means either somebody while sitting on the ground had fired a gunshot or it was a self-inflicted injury, therefore, the direction of the injury was parallel

to the earth and somebody else, from very close range while sitting on the ground, had caused that injury or it was self-inflicted injury. If somebody is

standing and fires at anybody else, then the direction of the bullet track would be from upward to downward and it would never be parallel to the

earth. Even as per the FSL report, the gunshot was fired from a close range i.e less than 3 feet. It is further submitted that the FIR has been lodged

by way of counter-blast to the FIR lodged by the applicant No.3. It is submitted that the respondent No.2 has killed the son of the applicant No.3 and

in order to create a false defence, a false FIR has been lodged.

Per contra, it is submitted by the counsel for the respondent No.2 that it is incorrect to say that the FIR by the respondent No.2 has been lodged by

way of counter-blast to the FIR lodged by the applicant No.3. In fact, the respondent No.2 was shot by the applicants and in order to create a false

evidence, a false FIR was lodged against the respondent No.2 and unfortunately, the deceased Pawan lost his life because of self-inflicted injury. It is

further submitted that whether the FIR lodged by the respondent No.2 is by way of counter-blast or not; and whether the FIR lodged by the applicant

No.3 is by way of counter-blast, is a question of fact, which is yet to be decided by the trial Court after appreciating and evaluating the evidence

tested on the anvil of crossexamination and, therefore, it is a question of fact that whether one FIR was lodged by way of counter-blast to the earlier

FIR or not; and the same cannot be decided while exercising power under Section 482 of CrPC.

Heard the learned counsel for the parties.

It is submitted by the counsel for the applicants that the Supreme Court in the case of D.P. Gulati, Manager Accounts, M/s. Jeking Infotrain vs. State

of Uttar Pradesh and another, reported in AIR 2015 SC 3760 has held that if a complaint has been filed by way of counterblast and to pressurize the

accused persons, then it is a clear case of abuse of process of law and, therefore, the complaint filed by the complainant is liable to be quashed. It is

further submitted that a similar proposition of law has been laid down by the Supreme Court in the case of Anjani Kumar vs. State of Bihar and

Another, reported in (2008) 2 SCC (Cri) 582 as well as in the case of Satyavati Ramprasad Ruia vs. New India Assurance Ltd reported in AIR 2017

SC 2596. It is further submitted that where the allegations made in the charge sheet are so absurd that no reasonable man would accept the same, the

High Court could not have no reasonable mind should accept the mind. The High Court must look into allegations with openness and then to decide the

petition in exercise of power under Section 482 of CrPC and to buttress his submissions, the counsel for the applicants has relied upon the judgment

passed by the Supreme Court in the cases of Manoj Mahavir Prasad Khaitan vs. Ram Gopal Poddar and Another, reported in (2011) 1 SCC (Cri) 94

and Ramesh Rajagopal vs. Devil Polymers Private Limited, reported in (2016) 2 SCC (Cri) 567. It is further submitted by the counsel for the

applicants that the dying declaration is not required to be elaborated and exhausted and to buttress his submissions, the counsel for the applicants has

relied upon the judgment of the Supreme Court in case of Charipalli Shankarrao vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad

reported in AIR 1995 SC 777. Â

In order to consider the submissions made by the counsel for the parties, it would be necessary to consider the evidence which has been collected by

the police during the investigation and whether that material was properly appreciated by the Magistrate while rejecting the closure report and taking

cognizance of the matter or not, is to be considered.

The undisputed facts are that the FIR was lodged by the applicant No.3 against the respondent No.2 as well as three more accused persons to the

effect that his son Pawan was shot by the respondent No.2 at 07:30 in the morning and this fact cannot be disputed because the incident took place in

Village Barehi and at 08:00 am, the dying declaration of deceased Pawan was recorded at Hospital Ambah. Thus, it is clear that at 08:00 am, the

deceased Pawan was already in the hospital, whereas the FIR which has been lodged by the respondent No.2, according to him, the incident took

place at 08:00 am, when the gunshot, in the same vicinity, was caused to him by the applicant No.2 by firing from his 315 bore gun. It is not the case

of the respondent No.2 that the respondent No.2 was attacked by the applicants by committing house trespass. On the contrary, the case of the

respondent No.2 is that while he was coming back from the warehouse in his Scorpio Four Wheeler, he was stopped on the way and then, gunshot

was fired by Amresh the applicant no.2. It is a matter of common knowledge that where a person had sustained a gunshot injury, then naturally the

members of that injured would rush to the hospital so that the medical treatment can be provided to the injured and they would not stay back on the

spot waiting for arrival of the respondent No.2. Had it been a case that after sustaining a gunshot injury by deceased Pawan, the family member of

the deceased Pawan had attacked the house of the accused persons causing injury to the respondent No.2, then the said allegations could have been

said to be probable as the relative of victim, out of anger and anguish can react to the criminal activity of the accused persons. But it is absurd to say

that in stead of taking the injured to the Hospital when he has sustained gunshot injuries, the family members would stay back calmly in the house

waiting for arrival of the accused and then to attack. However, this sole circumstance cannot be said to be sufficient for quashing the FIR against the

applicants or for holding that the FIR lodged against the applicants is by way of counter-blast. Therefore, further circumstances are required to be

considered and the cumulative effect of all the circumstances is to be considered.

The police after registering the FIR, had prepared a spot map and did not find any blood on the place of incident. Although the spot map was prepared

on 17/10/2017 i.e. after 12 days of the incident, and non-finding of any blood on the place of incident, may not be a very crucial because after 12 days

of the incident the blood may not be found on the spot, but in Crime No.505/2009 (lodged by the applicant No.3), the spot map was prepared on the

very same day i.e. 05/10/2012. As per the FIR, in Crime No.505/2012 (lodged by applicant No.3) as well as Crime No.509/2012 (lodged by

respondent No.2) the vicinity of both the incidents is the same. According to the FIR lodged in Crime No.505/2009, the incident took place where the

street merges with the road, which comes from village Bareh and joint to public way. On both the sides of the road, various houses are situated

including that of the deceased and the applicants as well as the respondent No.2 and other co-accused persons. While preparing the spot map in

Crime No.505/2009, on 05/10/2012 the police appears to have conducted a detailed search of the area and had found bloodstains or blood-marks at

various places, which have been duly reflected in the spot map but even on 05/10/2012, although blood was found on various places in the same

vicinity, but no blood was found on the spot at which the respondent No.2 has claimed that he was shot. Therefore, if the spot map prepared by the

police in Crime No.509/2012 on 17/10/2012 is considered in the light of the spot map prepared by the police of the same vicinity in Crime No.505/2012

on 05/10/2012, it is crystal clear that no blood was found even on 05/10/2012 at the place where the respondent No.2 claims to have been shot by the

applicants. Thus, there is another circumstance which indicates towards the falsity of the FIR lodged by the respondent No.2.

The another circumstance is that although the respondent No.2 had suffered a gunshot injury on his left thigh, but according to the doctor, the track of

bullet was parallel to the ground and secondly, the injury could have been self-inflicted. The police during investigation had raised certain queries to the

doctor and had sent the following queries by letter dated 13/10/2012 to the Chief Medical Officer, Civil Hospital Ambah which read as under:-

izfr] eq[; fpfdRld vf/kdkjh flfoy vLirky vEckg

 fo""k;& Fkkuk vEckg ds vijk/k dza- 509@12 /kkjk

307]341]34 rkfg ds et:c mes'k iq= eqUUk yky dh fnukad 05-10-12 dks dh xbZ ,e,ylh fjiksVZ ij D;kSjh izfrosnu fHktok;sa tkus fo""k;dA

mijksDr fo""k;kUrxZr ys[k gS fd Fkkuk vEckg ij fnukad 05-10-12 ds le; 8-00 cts dh ?kVuk esa et:c mes'k iq= eqUuk yky rksej mez 29 o""kZ dh izh

,e,ylh vkids vLirky esa inLFk MkW0 vkj0ds0 nkl }kjk le; lqcg 09-05 cts dh xbZ gSA ftlesa et:c ds vkbZ pksV dza- 01 esa Oysdfuax vkuk ys[k fd;k x;k

gSA rFkk pksV dza- 02 Li""V ugh dh xbZ gSA

vr% et:c dh xbZ izh ,e,y,lh esa vkbZ pksVksa ij

fuEukafdr fcUnqvksa ij D;kSjh vfHker fn;s tkus dk d""V djsaA

01& et:c ds xksyh fdruh nwjh ls ekjh xbZ gSA ftl dkj.k CySdfuax vk;k gS nwjh Li""V djsaA \

02& D;k et:c ds vkbZ pksV izk.k ?kkrd gSA \

03& et:c ds iSj esa xksyh fdl ,axy ls yxuk iznf'kZr djrh gS Li""V djsaA \

04& D;k et:c ds vkbZ pksV ls e`R;q gksuk lEHkkfor gSA \ 05& D;k pksV Lo;a ds }kjk ;k et:c dh lgerh ls igaWqpkbZ tkuk lEHkkkfor gSA \

vr% mDr fcUnqvksa ij izh ,e,ylh dk voyksu dj Li""V D;kSjh dj vfHker nsus dk d""V djsA lyXu%& izh ,e,ylh dh Nk;k izfr ¼1½

vuqfoHkkxh; vf/kdkjh

iqfyl vEckg

The queries raised by the police were duly replied by Dr.RK Das, Medical Officer, Community Health Centre, Ambah which read as under:-

1- easjs vuqlkj pksV ij p;fjax ¼dkcZu ifVZdy½ mifLFkr ugha Fks flQZ CySdfuax ik;h x;h] blfy;s vr% ejs s vuqlkj xksyh yxus dh jsat ikdzMj

CykLV dh jsat gSA

2- ejs s er vuqlkj et:c ds iSj dh pksV izk.k ?kkrd gS dh ugh ;g ftyk vLirky eqjSuk dh fjiksVZ ds ckn gh crk;k tk ldrh gSA

3- ejs s vuqlkj et:c ds iSj esa yxh xksyh tehu ds lekukarj izrhr gksrh gSA

4- ejs s vuqlkj et:c dks vkbZ pksV ls e`R;q gksuk laHkkfor gS ;k ugh ;g ftyk fpfdRlky; eqjSuk dh fjiksVZ ds ckn gh crk;k tk ldrk gSA

5- ejs s er vuqlkj bl izdkj dh pksV Lo;a }kjk ;g lgefr ls igaqpkbZ tkuk laHkkfor gSA

According to the doctor, the injury sustained by the respondent No.2 could have been a self-inflicted injury and blackening was found around the entry

wound. Thereafter, by letter dated 15/10/2012, the Police raised certain queries to Senior Scientific Officer, FSL Unit, Morena and the letter dated

15/10/2012 reads as under:-

izfr]

ofj""B oSKkfud vf/kdkjh

,Q,l,y ;fwuV eqjSuk

 fo""k;&% Fkkuk vEckg ds vijk/k dza- 509@12 /kkjk 307]341]34 rkfg esa

et:c ds vkbZ pksV fdl izdkj ds oSiu ls igaqpkbZ tkus ds

lEc/k esa vfHker fn;s tkus ckorA

mijksDr fo""k;kUrxZr ys[k gS fd Fkkuk vEckg ij fnukad 05-1012 ds le; 08%00 cts dh ?kVuk esa et:c mes'k iq= eqUuk yky rksej mez 29 o""kZ dh izh

,e,ylh vEckg vLirky esa inLFk MkW0 vkj0ds0nkl }kjk le; lqcg 09%05 cts dh xbZ gSA ftlesa et:c ds vkbZ pksV daz- 01 esa bUojVsV ektZu Cysdfuax

,okmV -5 x .5Â ls-eh- ,oa pksV dza- 02 esa ,DlZVsM ektZu

,omV -5 x .5Â ls-eh- ys[k fd;k x;k gSA vr% et:c ds dh xbZ izh ,e,y,lh esa vkbZ pksV ij fuEukafdr

fcUnqvksa ij vfHker fn;s tkus dk d""V djsaA

01& et:c ds xksyh fdruh nwjh ls nh tkuk lEHkkfor gSA ftl dkj.k CySdfuax vk;k gSA \

02& et:c ds vkbZ bl izdkj dh pksV fdl izdkj ds oSiu ls igqWpkbZ tk ldrh gSA \

03& D;k et:c ds bl izkdj dh vkbZ pksV izk.kk ?kkrd gks ldrh gSA \ vr% mDr fcUnqvks ij izh ,e,ylh dk voyksdu dj d`~i;kÂ

viuk vfHker nsus dk d""V djsaA layXu & izh ,e,ylh dh Nk;k izfr ¼01½

vuqfoHkkxh; vf/kdkjh iqfyl vEckg

The Senior Scientific Officer, FSL Unit, Morena replied that that the gunshot was fired from a close range of less than 3 feet, however, for obtaining

final opinion, the pant of the respondent No.2 should be sent to FSL, Sagar. It was observed that the opinion of the doctor may be obtained. The pant

of the respondent No.2 was sent to FSL, Sagar and after examining the empty cartridge as well as gunshots found on the pant as well as on the

underwear of the respondent No.2, it was opined by FSL, Sagar that the gunshot was fired from a distance of less than three feet. The report given by

FSL, Sagar, dated 24/11/2012 is reproduced as under:ijh{k.k izfrosnu

izkIr izn'kZ fuEufyf[kr ,d izn'kZ vkj{kd HkwisUnz dzekad 468

Fkkuk vEckg ds }kjk lhy can gkyr es fnukad 12-11-12 dks izkIr gq, lhy dk fooj.k&

piM+k lhy dk fooj.k %& vkfVZ , ij CHARITABLE DISPENSARY AMBAH  vafdr lhy yxh ik;h x;hA tks

izekf.kr lhy uewuk ls feyrh gSA vkfVZdy , blesa ,d isUV ,d v.Mjfo;j izkIr gq;s bUgs ;gka ij dze'k%izn'kZ C1 ls C2  rd vafdr fd;k x;k buds

lkFk blesa  8 x 57mm cksj dk ,d pys dkjrwl dk [kks[kk izkIr gqvk bls ;gka ij izn'kZ EC1 ls vafdr fd;k ;xkA izn'kksZ dk ijh{k.k %&

izn'kZ EC1 ;g  8 x 57mm cksj dk S&B dk pys dkjrwl dk [kks[kk gSA bles vUnj dh vksj lw{e jklk;fud ijh{k.k djus ij ukbVªkbZV dh

mifLFkfr /kukRed ik;h x;hA

izn'kZ C1 ;g ,d LysVh Hkwjs jax dk Qqy isUV gSA bl ij jcr tSls inkFkZ ds nkx yxs gSA bl ij lkeus ck;h vksj e/; ls mij dh rjQ ,d fNnz yxHkx 0-3 x

0.3Â Â vkdkj dk mifLFkr ik;k x;kA blds fdukjksa ij lw{e jklk;fud ijh{k.k djus ij ySM /kkrw o dkij /kkrq dh mifLFkr /kukRed ik;h x;hA blds pkjks vksj

yxHkx 15 x 15Â {ks= ds Qsykc esa vuds fiu gSM vkdkj ds fNnz ik;s x;s buesa dqN xu ikoMj ds v/ktys di Qls ik;s x;s ftldk lw{e jklk;fud ijh{k.k djus ij

ukbVªkbZV dh mifLFkfr /kukRed ik;h x;hA bls ?ksjdj H1 vafdr fd;k x;kA bl ij ihNs cka;h vksj e/; ls mij dh rjQ ,d fNnz yxHkx 0-3 x 0.4  vkdkj

dk mifLFkr ik;k x;kA blds fdukjksa ij lw{e jklk;fud ijh{k.k djus ij ySM /kkrq o dkij /kkrq dh mifLFkr /kukRed ik;h x;hA bls ?ksjdj H2 vafdr fd;k x;kA

izn'kZ C2 ;g ,d gjs iV~Vs dk v.Mjfo;j gSA bl ij jcr tSls inkFkZ ds nkx yxs gSA bl ij lkeus ck;h vkSj uhps dh rjQ ,d fNnz yxHkx 0-3 x 0.3 Â

vkdkj dk ¼-Not legible---------------- bls ?

ksjdj H1 vafdr fd;k x;k A vfHker izn'kZ EC1 ;g  8 x 57mm cksj dk pys dkjrwl dk [kks[kk gSA bls fdlh 8 x 57mm cksj ds Qk;j vkeZ ls

pyk;k x;k gSA isV izn'kZ C1 es fpfUgr fNnz H1 o H2 rFkk v.Mjfo;j izn'kZ C2 esa fpfUgr fNnz H1 xu 'kkWV fNnz gSA tks ysM

dksj ;qDr dkij tsdsVsM cqysV ds yxus ls cus gSA isV izn'kZ C1 es fpfUgr fNnz H1 ds vklikl xu ikoMj ekdZl dh mifLFkfr dks ns[krs gq;s fdlh

izekf.kd Qk;j vkeZ ls Qk;j gksus dh fLFkfr esa Qk;j djus dh njw h rhu fQV ls de jgh gksxhA ijhf{kr ,oa lhcan fd;s x;s izn'kksZ ij yxh piMk lhy dk

uewuk

Thus, it is clear that according to the scientific assessment of the case, the gunshot sustained by the respondent No.2 was fired from a very close

range of less than 3 feet and it is the assessment of the doctor that the injury could be a self-inflicted injury. The allegation made in the FIR, that the

gunshot was fired by the applicant No.2 Amresh from a long range of 15 feet, automatically gets falsified in view of the scientific evidence collected

by the police during investigation. Thus, it is clear that the allegations made in the FIR that the applicant No.2 had fired a gunshot from a distance of

15 feet does not find corroboration from the medical evidence collected by the police and on the contrary ,the scientific evidence discloses that the

gunshot was fired from a very close range of less than 3 feet and the said injury could be a self-inflicted injury.

Furthermore, as per opinion given by the doctor, the direction of gunshot was parallel to the earth. If this circumstance is considered, then it clearly

indicates that either the injury sustained by the respondent No.2 was a self-inflicted injury or somebody else by sitting on the ground had caused that

injury on the thigh of the respondent No.2 and that is why, the direction and the track of the movement of bullet was parallel to the ground. If the bullet

was fired from a distance of 15 feet by a person, then the direction of bullet or track of the bullet cannot be parallel to the earth and the direction has

to be from upward to downward. Even assuming that the direction could have been parallel to the earth but since the distance of firing gunshot as

alleged against the respondent No.2 does not find corroboration from the medical evidence as well as scientific evidence collected by police which

clearly shows that the injury sustained by respondent No.2 was a self-inflicted injury and the only intention was to create a false evidence in his

defence.

Under these circumstances, if the police, after concluding the investigation had filed the closure report for three times, this Court is of the

considered opinion that the Magistrate by ignoring the above-mentioned facts, had relied upon the ocular evidence of the witnesses and took

cognizance of the matter. Whether the FIR has been lodged by way of counter-blast or not, cannot be decided solely on the basis of ocular evidence.

If the medical as well as the scientific evidence collected by the police during investigation belies the ocular evidence, then in a case where one has

lost his life and the second FIR lodged by the accused persons alleging that the incident took place half an hour after the first incident, then it may be a

case of counter-blast. Here, considering the cumulative effect of all circumstances as observed by this Court in the forgoing paragraphs, this Court is

of the considered opinion that the FIR lodged by the respondent No.2 in Crime No.509/2012 was nothing, but was lodged by way of counter-blast to

the FIR lodged by the applicant No.3 against the respondent No.2 as well as three more accused persons and further the material collected by the

police also belies the allegations.

Thus, under the facts and circumstances of the case, this Court is of the considered opinion that the Magistrate did not apply its mind in its entirety in

rejecting the closure report filed by the police.

The Supreme Court in the case of D.P. Gulati (supra) has held as under:-

''7.We have carefully considered the rival submissions made before us. From bare perusal of Section 482 of the Code, it is clear that the object of

exercise of power under the Section is to prevent abuse of process of law, and to secure ends of justice. In Rajiv Thapar and others v. Madan Lal

Kapoor (2013) 3 SCC 330, this Court has enumerated the steps required to be followed before invoking inherent jurisdiction by the High Court under

Section 482 of the Code as under:-

Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for

quashment raised by an accused by invoking the power vested in the High Court under Section 482, Cr P C:

30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable

quality?

30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused

i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a

reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.4. Step four whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.4. Step four whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings

in exercise of power vested in it under Section 482. CrPC. Such exercise of power, besides doing justice to the accused, would save precious court

time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would

not conclude in the conviction of the accused.

The Supreme Court in the case of Rishipal vs State Of U.P. & Anr, reported in AIR 2014 SC 2567 has held that it is no doubt true that the Courts

have to be very careful while exercising the power under Section 482 Cr.P.C. At the same time, the Courts should not allow a litigant to file vexatious

complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted

at the threshold.

The Supreme Court in the case of State of Haryana and Others vs. Ch. Bhajanlal and Others reported in AIR 1992 SC 604 has held as under:-

''Though the scope for interference while exercising jurisdiction under Sec.482 Cr.P.C. is limited and illustrative examples laid down are as follows:

(1) Where the allegations made in the firstinformation 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 informationreport and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Sec.156(1) of the Codeexcept under an order of a Magistrate within the purview of Sec.155(2) of

the Code.

(3) Where the uncontroverted allegations made inthe 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 notconstitute 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 Sec. 155 (2) of the Code.

(5) Where the allegations made in the FIR orcomplaint 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 inany of the provisions of the Codeor 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 Codeor the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestlyattended 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.

The Supreme Court in the case of Sunder Babu vs. State of Tamil Nadu reported in AIR 2009 SC (Supp) 2087 has held as under:-

''(7) The parameters for exercise of power under Sec.482 have been laid down by this Court in several cases.

(8) The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment

of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the

Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any

inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that

may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of

functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves

inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their

constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle ""quando lex

aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest"" (when the law gives a person anything it gives him that without

which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction

under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests

specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone

courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the

court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent

promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to

abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.''

Accordingly, the order dated 16/10/2014 passed by CJM Morena and the order passed by 4th ASJ, Morena in Criminal Revision No.97/2014 are

hereby set aside. The closure report filed by the police is hereby accepted. As a consequence thereof, all the criminal proceedings arising out of Crime

No.509/2012 against the applicants are hereby quashed.

The application succeeds and is hereby allowed.