Madhya Pradesh High Court
Ashish Sharma vs The State Of Madhya Pradesh on 18 November, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:20463
1 MCRC-45704-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 18th OF NOVEMBER, 2024
MISC. CRIMINAL CASE No. 45704 of 2024
ASHISH SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ashok Khedkar, Advocate for the applicant.
Shri Naval Kishor Gupta, Public Prosecutor for respondent/State.
ORDER
This application under Section 528 of BNSS, 2023 (Section 482 of
Cr.P.C.) has been filed for quashment of FIR in Crime No.382 of 2021
registered at Police Station Kampoo, District Gwalior for offences under
Sections 451, 294, 323, 506, 354, 354B and 34 of IPC as well as further
proceedings in RCT No.5794/2023.
2. It is the case of applicant that father of applicant filed a suit for
declaration of title and permanent injunction in respect of property situated at
Army Bajariya, Kampoo, Lashkar, Gwalior having Municipal Number 1134.
In that house, there is a temple of Shri Ramjanki and Hanuman Ji on the
ground floor. Serious property dispute is going on between father of applicant
and respondent no.2-complainant. In the Civil Suit, vide order dated
12.10.2021, learned Appellate Court allowed the prayer for temporary
injunction and directed the parties, including father of applicant, not to create
any third party rights and also directed to maintain status quo . It is submitted
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that before the temporary injunction order dated 12.10.2021 was passed,
respondent No.2 was having enmity with father of applicant and waited for a
moment when she could get a chance to drag the applicant in a criminal case.
Accordingly on 08.07.2021 when respondent No.2 started quarreling with
father of applicant, then father of applicant lodged an FIR at Crime
No.381/2021 for offences under Sections 452, 323, 294, 506 and 34 of IPC
against respondent No.2/complainant and her brother-in-law Rajbihari
Sharma. By way of counter-blast, complainant also lodged an FIR in Crime
No.382/2021 at 10:49 pm against father of applicant and his nephew
Laxminarayan Sharma and Chhotu Sharma. It is submitted that a
representation was made to Additional S.P. Gwalior (West) alleging false
implication of Abhishek Sharma, brother of applicant. When documents were
filed before the Police Authorities to show that on the date of incident i.e.
8/7/2021 Abhishek Sharma was at Bengaluru, complainant changed her
version and gave her statement under Section 164 of Cr.P.C. introducing the
name of applicant for the first time by calling him as Chhotu @ Aashish. It is
submitted that delayed disclosure of name of applicant is mala fide and the
FIR is liable to be quashed. It is submitted that charge-sheets have been filed
in both the FIRs. It is submitted that charge-sheet filed in Crime No.381/2021
clearly reflects that FIR lodged by complainant in Crime No.382/2021 is
counter-blast to the FIR lodged by father of applicant. Accordingly, it is
submitted that since the FIR has been lodged out of malafide, therefore, the
same is liable to be quashed.
3. Considered the submissions of counsel for applicant.
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4. Admittedly, some dispute is going on between the parties and a
Civil Suit is also pending and the Appellate Court by order dated 12.10.2021
passed in Misc. Civil Appeal No.139/2018 has directed both the parties to
maintain status quo and not to create third party right. It is the case of the
applicant that complainant clarified the identity of applicant in her statement
recorded under Section 164 of Cr.P.C. after considerably long time.
However, counsel for the applicant could not point out any judgment where
the FIR was quashed on the basis of delayed disclosure of identity of
accused. Furthermore, it is clear from FIR No.381/2021 lodged by father of
applicant as well as FIR No.382/2021 lodged by complainant that the
incident took place sometime in between 17.15 to 17.30 on 08.07.2021.
Therefore, one thing is clear that some incident has taken place on
08.07.2021 in between 17.15 to 17.30. Merely because FIR of father of
applicant was lodged at 20.28 whereas the FIR of complainant was lodged at
22.49, the same would not mean that the FIR lodged by complainant was by
way of counter-blast. Whether the FIR lodged by complainant is false or is
by way of counter-blast, is a defence involving disputed question of fact
which cannot be adjudicated by this Court while exercising jurisdiction under
Section 482 of Cr.P.C. (Section 528 of BNSS, 2023).
5. Even otherwise in the light of judgments passed by the Supreme
Court in the cases of XYZ v. State of Gujarat reported in (2019) 10 SCC
337 , State of Tamil Nadu Vs. S. Martin & Ors. reported in (2018) 5 SCC
718 , Ajay Kumar Das v. State of Jharkhand , reported in (2011) 12 SCC 319 ,
Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350 ,
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State of A.P. v. Gourishetty Mahesh reported in (2010) 11 SCC 226 , M.
Srikanth v. State of Telangana , reported in (2019) 10 SCC 373 , CBI v.
Arvind Khanna reported in (2019) 10 SCC 686 , State of MP Vs. Kunwar
Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 , Munshiram
v. State of Rajasthan , reported in (2018) 5 SCC 678 , Teeja Devi v. State of
Rajasthan reported in (2014) 15 SCC 221 , State of Orissa v. Ujjal Kumar
Burdhan, reported in (2012) 4 SCC 547 , S. Khushboo v. Kanniammal
reported in (2010) 5 SCC 600 , Sangeeta Agrawal v. State of U.P. , reported in
(2019) 2 SCC 336 , Amit Kapoor v. Ramesh Chander reported in (2012) 9
SCC 460, Padal Venkata Rama Reddy Vs. Kovuri Satyanarayana Reddy
reported in (2012) 12 SCC 437 and M.N. Ojha v. Alok Kumar Srivastav
reported in (2009) 9 SCC 682 , this Court can quash the proceedings only if
the uncontroverted allegations do not make out an offence. Furthermore, this
Court in exercise of powers under S..482 of Cr.P.C. (S.528 of BNSS) cannot
conduct a roving enquiry to hold as to whether the allegations made in the
FIR are correct or not.
6. Once the incident has taken place and if it is found that both the
parties are guilty of committing the offence, then at the most, it can be said
that the principle of vicarious liability would not apply and by treating it to be
a free fight between the parties, every person would be responsible for his
own act. Merely because FIR of father of applicant was lodged just two hours
prior to the FIR lodged by complainant, it cannot be said that FIR lodged by
complainant was by way of counter-blast to the FIR lodged by father of
applicant. The Supreme Court in the case of Renu Kumari Vs. Sanjay Kumar
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and others reported in (2008) 12 SCC 346 has held that if allegations made in
the FIR make out a cognizable offence, then malafides of the informant
become secondary. The relevant portion is quoted as under:-
“9. “8. Exercise of power under Section 482 CrPC in a case of this
nature is the exception and not the rule. The section does not confer
any new powers on the High Court. It only saves the inherent
power which the Court possessed before the enactment of CrPC. It
envisages three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order under
CrPC, (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.
The 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
recognises 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 the course
of administration of justice on the principle of 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 the 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 the
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 the 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 the 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. When no offence is
disclosed by the report, the court may examine the question of fact.
When a report is sought to be quashed, it is permissible to look into
the materials to assess what the report has alleged and whether any
offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : (1960) 3
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SCR 388] this Court summarised some categories of cases where
inherent power can and should be exercised to quash the
proceedings:
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information report
or complaint taken at their face value and accepted in
their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there
is no legal evidence adduced or the evidence adduced
clearly or manifestly fails to prove the charge. (AIR p.
869)
10. In dealing with the last category, 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 clearly inconsistent
with the accusations made, and a case where there is legal evidence
which, on appreciation, may or may not support the accusations.
When exercising jurisdiction under Section 482 CrPC, the High
Court would not ordinarily embark upon an enquiry whether the
evidence in question is reliable or not or whether on a reasonable
appreciation of it accusation would not be sustained. That is the
function of the trial Judge. Judicial process should not be an
instrument of oppression, or, needless harassment. The court
should be circumspect and judicious in exercising discretion and
should take all relevant facts and circumstances into consideration
before issuing process, lest it would be an instrument in the hands
of a private complainant to unleash vendetta to harass any person
needlessly. At the same time the section is not an instrument
handed over to an accused to short-circuit a prosecution and bring
about its sudden death. The scope of exercise of power under
Section 482 CrPC and the categories of cases where the High
Court may exercise its power under it relating to cognizable
offences to prevent abuse of process of any court or otherwise to
secure the ends of justice were set out in some detail by this Court
in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426 : AIR 1992 SC 604] . A note of caution was,
however, added that the power should be exercised sparingly and
that too in the rarest of rare cases. The illustrative categories
indicated by this Court are as follows : (SCC pp. 378-79, para 102)
‘(1) 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.
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(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR 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.
(3) Where the uncontroverted allegations made in the
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 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.
(5) Where the allegations made in the FIR 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.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(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 Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) 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.’
11. As noted above, the powers possessed by the High Court
under Section 482 CrPC are very wide and the very plenitude of
the power requires great caution in its exercise. The court must
be careful to see that its decision, in exercise of this power, is
based on sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. The High Court being
the highest court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are incomplete
and hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether factual
or legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no hard-and-fast
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rule can be laid down in regard to cases in which the High Court
will exercise its extraordinary jurisdiction of quashing the
proceeding at any stage. [See Janata Dal v. H.S. Chowdhary
[(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and
Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1 : (1964) 1
Cri LJ 1].] It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in order to
determine whether a conviction would be sustainable and on such
premises arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material before it and
conclude that the complaint cannot be proceeded with. When an
information is lodged at the police station and an offence is
registered, then the mala fides of the informant would be of
secondary importance. It is the material collected during the
investigation and evidence led in the court which decides the fate
of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the
basis for quashing the proceedings. [See Dhanalakshmi v. R.
Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142],
State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC
(Cri) 192] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6
SCC 194 : 1995 SCC (Cri) 1059] , State of Kerala v. O.C. Kuttan
[(1999) 2 SCC 651 : 1999 SCC (Cri) 304] , State of U.P. v. O.P.
Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497] , Rashmi Kumar
v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri)
415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8
SCC 728 : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of
Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] .]” The above
position was again reiterated in State of Karnataka v. M.
Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539] , State of
M.P. v. Awadh Kishore Gupta [(2004) 1 SCC 691 : 2004 SCC
(Cri) 353] and State of Orissa v. Saroj Kumar Sahoo [(2005) 13
SCC 540 : (2006) 2 SCC (Cri) 272] , SCC pp. 547-50, paras 8-
11.””
7. Considering the totality of facts and circumstances of the case, this
Court does not find it a fit case to interfere in the matter.
Accordingly, application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE(and)
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