Sandeep And Another vs State Of Uttarakhand & Another

N.S. Dhanik, J

This Criminal Miscellaneous Application, under Section 482 CrPC, is preferred to quash the order dated 4.12.2017 passed by the Additional Chief Judicial Magistrate, Roorkee, District Haridwar in Misc. Criminal Case No. 4080 of 2017, State v. Sandeep & Another, under Sections 452, 307/34, 120-B IPC, and the order dated 29.5.2019 passed by the 2nd Additional Sessions Judge, Roorkee, District Haridwar, in Criminal Revision No. 83 of 2018.

Background facts of the case, necessary to be noted for deciding the present criminal miscellaneous application are:-

2.1 In the present case, there is a version and a cross-version of the incident. Persons belonging to both sides are the residents of village Tikola Kala, District Haridwar.

2.2 On 25.5.2015, one Pradeep (real brother of applicant no. 1 herein) lodged an FIR alleging that at about 8 o'clock in the morning of that day, his real brother Sonu @ Sanjay had gone to his field; Baljor, Rajneesh, Rajbeer and Ajay @ Gullu (who are the close relatives of respondent no. 2 herein) nurtured enmity with his family; when Sonu @ Sanjay went to drink water at a brick kiln situated near the field, the aforenamed accused persons shot dead his brother Sonu @ Sanjay and thereafter taken along his dead body to their house on a motorcycle. After investigation, police submitted chargesheet against the accused persons and trial is going on against them.

2.3 On 6.6.2015, respondent no. 2 herein moved an application under Section 156(3) CrPC against the present applicants and another co-accused (Mahak Singh) wherein he has narrated the cross-version of the same incident alleging that on 25.5.2015, Sonu @ Sanjay (deceased), Sandeep (applicant no. 1), Sadhu (applicant no. 2) along with their other companions intruded into the house of Baljor and attacked his son Ajay @ Gullu with intention to kill him; Ajay @ Gullu suffered two gunshot injuries; in the incident, the bullets fired by the prosecution party accidentally hit Sonu @ Sanjay and he fell down at the spot; thereafter other accused persons fled away from the spot; both injured (Sonu @ Sanjay and Ajay @ Gullu) were shifted to the Civil Hospital, Roorkee by the police where Sonu @ Sanjay was declared dead, while the injured Ajay @ Gullu was referred to Doon Hospital; Ajay @ Gullu was taken to the hospital by the Constable Sandeep; when respondent no. 2 went to see the injured Ajay @ Gullu, he narrated the entire incident to him and thereafter respondent no. 2 tried to lodge the FIR, but police did not register his FIR whereas the FIR lodged by the prosecution party was registered. Medical certificate and referral slip pertaining to the injured Ajay @ Gullu were also enclosed with the aforesaid application.

2.4 On the aforesaid application of the respondent no. 2, police report was called by the Magistrate. Police reported that the respondent no. 2 has moved misleading application narrating incorrect facts therein. Thereafter this 156(3) application was rejected on 3.7.2015. Respondent no. 2 assailed the order dated 2.7.2015 by filing a revision, which was allowed and the matter was remanded back to the Magistrate.

2.5 Thereafter on the order of the Magistrate, FIR was registered on 16.1.2016 against the applicants and two other persons. After making investigation in the matter, police filed the final report on 6.1.2017. Respondent no. 2 preferred protest petition. Learned Magistrate rejected the final report vide the impugned order dated 4.12.2017 and, exercising powers under Section 190(1)(b) CrPC, summoned the applicants to face the trial.

2.6 Applicants preferred criminal revision against the order dated 4.12.2017. This criminal revision was rejected vide impugned order dated 29.5.2019. Hence, this C482 application.

Learned Senior Counsel for the applicants argued that in order to frustrate the trial proceeding against Baljor and others, respondent no. 2, who is their close relative, moved the application under Section 156(3) CrPC; police found that the said application was misleading; as per the respondent no. 2, the place of occurrence is the house of Baljor, while according to the site plan, prepared in the case registered by the applicants' side, the place of occurrence is different i.e. the Shiv Brick Kiln from where the bloodstained mud and slippers of deceased Sonu @ Sanjay were also recovered; and, since on the FIR lodged from the side of applicants, the police investigated the matter and found the incident narrated therein to be true and submitted the chargesheet, therefore, the incident as narrated by the respondent no. 2/complainant cannot be believed. Learned Senior Counsel also argued that in the application under Section 156(3) CrPC, one Mahak Singh was also made the accused but in the revision preferred against the order passed on the said application, respondent no. 2 did not implead Mahak Singh as a respondent.

Learned Senior Counsel appearing for the complainant/respondent no. 2 refuted the above contentions and argued that the learned Magistrate, while exercising the powers under Section 190(1)(b) CrPC vide the impugned order dated 4.12.2017, has elaborately discussed the evidence collected by the police during the course of investigation and found the same to be sufficient and credible enough to summon the accused applicants. Learned Senior Counsel for the complainant/respondent no. 2 further argued that the injured Ajay @ Gullu and two eyewitnesses of the incident in their statements under Section 161 and 164 CrPC have corroborated the incident and, therefore, the police has wrongly filed the final report in the matter.

I have heard learned Senior Counsels for the parties and carefully perused the materials on record.

I find no substance in the argument of learned Senior Counsel for the applicants that the respondent no. 2 moved the application under Section 156(3) CrPC just to frustrate the trial proceeding against Baljor and others. As per the allegation, the injured Ajay @ Gullu suffered two gunshot injuries and he was shifted to the hospital by the police. The Investigation Officer recorded the statement of the doctor who medically examined Ajay @ Gullu in the Government Hospital, Roorkee and referred him to higher centre. The Investigation Officer also collected the medical papers pertaining to the treatment of the injured Ajay @ Gullu in the Doon Hospital. The said injured witness and two eyewitnesses of the incident in their statements under Section 161 and 164 CrPC have fully corroborated the incident. Thus, there is ocular evidence as well as the medical evidence. Further, the Forensic Science Laboratory found that the bullet recovered from the body of the deceased was not found to be fired from the pistol/rifle recovered from the other side i.e. from Baljor and others. It is also beyond comprehension that if the incident happened at the brick kiln, as stated by the applicants, then why the police did not collect the blood from there so that the same could have been matched with the blood collected from the house of Baljor.

In the above facts and circumstances, the learned Magistrate has rightly observed that the police did not conduct the investigation in the proper manner nor did it correctly examine/analyze the evidence collected during the course of investigation. Moreover, there is no explanation of the injuries suffered by Ajay @ Gullu. It appears that the police tried to replenish the grey area by filing the final report on the report lodged by the respondent no. 2. The police ought to have examined the tactics adopted by the rival parties and the role and liability of each accused ought to have been considered independently.

As is evident from the foregoing discussion that disputed questions of fact are involved in the present dispute and on the basis of the allegations made in the complaint, if taken at their face value and accepted in their entirety, a prima facie case is made out against the accused applicants.

Hon'ble Apex Court in Prashant Bharti v. State of NCT of Delhi, (2013) 9 SCC 293, has observed that in order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 CrPC, the High Court should analyze (i) whether the material relied upon by the accused is sound, reasonable and indubitable; (ii) whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint; (iii) whether the material relied upon by the accused cannot be justifiably refuted by the prosecution/complainant; and (iv) whether the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?

In my considered opinion, the answer to none these questions is in affirmative and, therefore, this Court is not inclined to quash the proceedings by exercising its power under Section 482 CrPC.

It is also settled law that power under Section 482 CrPC requires great caution in its exercise. A Constitution Bench of the Hon'ble Apex Court has elaborately discussed such scope in the case of Inder Mohan Goswami & Another v. State of Uttaranchal & others, (2008) 1 SCC (Cri) 259, and has held that inherent power under Section 482 CrPC can be exercised: (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. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers. However, the inherent power should not be exercised to stifle a legitimate prosecution.

In view of what has been set forth above, I do not find any force in this criminal miscellaneous application. Consequently, the present C482 petition is dismissed. Interim order, if any, stands vacated. Inform the Court concerned accordingly.

It is made clear that any observation made by this Court is only for the purpose of deciding the present C482 application and the same shall not be considered in any other proceeding and shall not prejudice the trial court while deciding the case on merit.