Yogendra Singh Bhandari vs State of Uttarakhand

Umesh Chandra Dhyani, J.—The applicant, by means of present application/petition u/s 482 of Cr.P.C., seeks to quash the summoning order dated 09.11.2009, charge-sheet of case crime No. 82 of 2009, relating to police station, Kotwali, Uttarkashi, under Sections 353, 504, 506 of IPC, as also the proceedings of criminal case No. 819 of 2009, State v. Yogendra Singh, for the selfsame offences, pending in the court of Chief Judicial Magistrate, Uttarkashi. Complainant (respondent No. 2 herein) lodged an FIR against the applicant, at police station, Kotwali, Uttarkashi on 23.09.2009, which was registered as FIR No. 82 of 2009, under Sections 504, 506 of IPC. Cognizance was taken on said charge-sheet and accused was summoned to face the trial in respect of offences punishable under Sections 353, 504, 506 of IPC. Aggrieved against the same, present application u/s 482 of Cr.P.C. was moved.

As per FIR, it was alleged by a police personnel, deputed at the residence of District Judge, Uttarkashi, that on 21.09.2009, at 08:30 p.m., one person coming from Ramleela Ground towards Vishwanath Chowk was abusing a higher officer. When the informant refrained him from doing so, accused also hurled abuses at the informant and threatened him with dire consequences. It appears that the accused was in an inebriated state. When the informant made an attempt to chase the accused, he fled away. The informant police constable knew the name of the applicant as Yogendra Singh Bhandari. The incident allegedly took place on 21.09.2009. FIR was lodged on 23.09.2009. Accused was arrested on the same day and was granted bail by learned Sessions Judge, Uttarkashi, vide order dated 30.09.2009.

It is stated in para 2 of the affidavit enclosed with the application u/s 482 of Cr.P.C. that the applicant is a soldier in Indian Army and is presently posted at Arunachal Pradesh in Garhwal Rifles. On 01.08.2009, applicant was on leave and visited Uttarkashi. In the night of 21.08.2009, when he along with his friends was going on the way opposite to the house of District Judge, one constable named Bharat Singh, who was in drunken state, stopped them, questioned them and thereafter the applicant ran away from the spot as the constable was using derogatory words against the applicant. On 22.08.2009, the applicant went to the police station and reported the incident to S.O. Pradeep Gusain, who told the applicant that Bharat Singh was guard of District Judge and refrained him from reporting the matter, as the same would have created problem. It was also stated that thereafter on 23.09.2009, opposite party No. 2 lodged an FIR under Sections 504, 506 of IPC at police station, Kotwali, Uttarkashi alleging therein that he (O.P. No. 2) was on duty at the bungalow of District Judge, Uttarkashi and on 21.09.2009, at about 08:30 p.m., one person (present applicant), who was in drunken state, was going towards Vishwanath Chowk uttering derogatory words to higher officials and when he stopped him, the applicant threatened to kill O.P. No. 2 and ran away from there. The said FIR was registered as FIR No. 82 of 2009, under Sections 504, 506 of IPC.

It was stated in para 7 of the affidavit that all the exercise was done by the O.P. No. 2 on the instructions of District Judge, Uttarkashi. The details of the derogatory words used against District Judge, Uttarkashi were not disclosed in the FIR. District Judge, Uttarkashi was biased against the father of applicant, who was D.G.C. (Revenue) and the applicant was made scapegoat and was harassed by the action of O.P. No. 2. DGC wrote a letter to the Registrar General of Hon''ble High Court of Uttarakhand (copy of which letter is enclosed as Annexure-5 to the affidavit). A request was also made to conduct high-level inquiry in the matter. It was also stated in para 12 that the allegations made in the FIR cannot be accepted at their face value and no offence is made out against the applicant.

A perusal of FIR and the documents on record suggest that the offences punishable under Sections 504, 506 of IPC are prima facie made out against the applicant. When the FIR was lodged against the applicant, it was lodged under Sections 504, 506 of IPC. It was during the course of investigation that offence u/s 353 of IPC was included in the array of alleged crimes. The applicant allegedly did not assault or use criminal force to the informant, who was a public servant, during discharge of his duty as such public servant. The applicant did nothing with intent to prevent or deter that person from discharging his duty as such public servant. Accused-applicant allegedly did not obstruct the informant in the lawful discharge of his duty as such public servant and, therefore, no offence punishable u/s 353 of IPC is made out against the accused-applicant.

Hon''ble Apex Court in Amit Kapoor Vs. Ramesh Chander and Another, , has laid down certain principles in respect of exercise of jurisdiction u/s 482 of Cr.P.C. One of the principles is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceeding in exercise of its original jurisdiction.

There is no occasion to quash the criminal proceedings pending against the accused-applicant in exercise of jurisdiction vested u/s 482 of Cr.P.C. at this stage, as would be evidenced from the law laid down by the Hon''ble Supreme Court, in Rajiv Thapar and Others Vs. Madan Lal Kapoor, . Paragraph No. 28 of the said ruling is reproduced here-in-below for convenience:

The High Court, in exercise of its jurisdiction u/s 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.

It is, thus, held that foundation of criminal offences against the accused-applicant under Sections 504, 506 of IPC is laid, but no prima facie offence u/s 353 of IPC is made out against the applicant even if the entire FIR be taken to be correct on its face value.

As a consequence thereof, the application u/s 482 of Cr.P.C. deserves to be allowed in respect of summoning of the accused-applicant u/s 353 of IPC. The same is, accordingly, allowed in part. Whereas application u/s 482 of Cr.P.C. is allowed in respect of quashing of offence punishable u/s 353 of IPC, the same is dismissed as regards offences punishable under Sections 504, 506 of IPC, for which the accused-applicant has already been directed to be released on bail by learned Sessions Judge, Uttarkashi. Liberty is, however, granted to the applicant to raise all the factual pleas before learned Chief Judicial Magistrate, Uttarkashi (trial court) for obtaining his discharge or acquittal at an appropriate stage.