**** Vs. Bimla Rani and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1071503
CourtPunjab and Haryana High Court
Decided OnMay-20-2013
Appellant****
RespondentBimla Rani and Another
Excerpt:
crm not m-10247 of 2011 (o&m) -1- in the high court of punjab and haryana at chandigarh (222/2) crm not m-10247 of 2011 (o&m) date of decision:20.05.2013. manjit singh ......petitioner versus bimla rani and another .......respondents coram: hon'ble mrs.justice sabina present: mr.sandeep arora, advocate for the petitioner. mr.sudhir pruthi, advocate for respondent no.1. mr.k.d.s.sidhu, addl. ag, punjab. **** sabina, j. petitioner has filed this petition under section 482 of the code of criminal procedure, 1973 seeking quashing of the criminal complaint no.105/1/09 dated 15.06.2007 titled as “bimla rani versus surjit singh and another”. (annexure p-3) under sections 378, 380, 427, 442, 452 and 34 of the indian penal code 1860 (in short 'act') and all the other consequential proceedings arising therefrom. learned counsel for the petitioner has submitted that the petitioner is a non-resident indian. in fact, on the alleged date of occurrence, petitioner was not in india and was residing in crm not m-10247 of 2011 (o&m) -2- germany. petitioner had left india on 7th october, 2006 and had returned back to india on 7th january, 2007. in this regard, learned counsel has placed reliance on photocopy of the passport of the petitioner placed on record as annexure p-7. learned counsel for respondent no.1, on the other hand, has opposed the petition. in the case of state of haryana versus bhajan lal,, 1992 supp(1) supreme court cases 335, the apex court has held as under:- “the following categories of cases can be stated by way of illustration wherein the extraordinary power under article 226 or the inherent powers under section 482, cr.p.c.can be exercised by the high court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) where the allegations made in the firs.information report or the complainant/respondent no.2, 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 firs.information report crm not m-10247 of 2011 (o&m) -3- 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 no 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 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 concerned act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the code or the concerned act, providing efficacious redress for the crm not m-10247 of 2011 (o&m) -4- grievance of aggrieved party.”7. where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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. we also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the fir or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” case of the complainant as per the complaint (annexure p-3) in brief is that on 4th december, 2006, petitioner and his brother surjit singh were demolishing the boundary wall of the premises belonging to the complainant. the said act was witnessed by gautam, son of the complainant. when gautam told the petitioner and his brother to stop their illegal activity, petitioner and his brother threatened gautam with dire consequences. gautam informed the complainant about the occurrence. complainant along with her son reached the spot and saw that the petitioner and his brother had already demolished the kotha and boundary wall and were taking away bricks etc.from the spot. crm not m-10247 of 2011 (o&m) -5- thus, in the present case, occurrence had taken place on 4th december, 2006. learned counsel for the petitioner has placed on record coloured photocopy of the passport of the petitioner. a perusal of the same reveals that the petitioner had left india on 7th october, 2006 and had returned to india on 7th january, 2007. thus, petitioner could not have been present at the spot on 4th december, 2006, as on the alleged date of occurrence, petitioner was not in india. in these circumstances, continuation of criminal proceedings against the petitioner would be nothing but abuse of process of law. accordingly, this petition is allowed. criminal complaint no.105/1/09 dated 15.06.2007 “bimla rani versus surjit singh and another”. (annexure p-3) under sections 378, 380, 427, 442, 452 and 34 ipc and all the subsequent proceedings arising therefrom, qua the petitioner are quashed. (sabina) judge may 20, 2013 sandeep sethi
Judgment:

CRM not M-10247 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (222/2) CRM not M-10247 of 2011 (O&M) Date of decision:20.05.2013.

Manjit Singh ......Petitioner Versus Bimla Rani and another .......Respondents CORAM: HON'BLE MRS.JUSTICE SABINA Present: Mr.Sandeep Arora, Advocate for the petitioner.

Mr.Sudhir Pruthi, Advocate for respondent No.1.

Mr.K.D.S.Sidhu, Addl.

AG, Punjab.

**** SABINA, J.

Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the Criminal Complaint No.105/1/09 dated 15.06.2007 titled as “Bimla Rani versus Surjit Singh and another”.

(Annexure P-3) under Sections 378, 380, 427, 442, 452 and 34 of the Indian Penal Code 1860 (in short 'Act') and all the other consequential proceedings arising therefrom.

Learned counsel for the petitioner has submitted that the petitioner is a Non-Resident Indian.

In fact, on the alleged date of occurrence, petitioner was not in India and was residing in CRM not M-10247 of 2011 (O&M) -2- Germany.

Petitioner had left India on 7th October, 2006 and had returned back to India on 7th January, 2007.

In this regard, learned counsel has placed reliance on photocopy of the Passport of the petitioner placed on record as Annexure P-7.

Learned counsel for respondent No.1, on the other hand, has opposed the petition.

In the case of State of Haryana versus Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C.Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the fiRs.information report or the complainant/respondent No.2, 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 fiRs.information report CRM not M-10247 of 2011 (O&M) -3- 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 no 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 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 concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the CRM not M-10247 of 2011 (O&M) -4- grievance of aggrieved party.”

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

Case of the complainant as per the complaint (Annexure P-3) in brief is that on 4th December, 2006, petitioner and his brother Surjit Singh were demolishing the boundary wall of the premises belonging to the complainant.

The said act was witnessed by Gautam, son of the complainant.

When Gautam told the petitioner and his brother to stop their illegal activity, petitioner and his brother threatened Gautam with dire consequences.

Gautam informed the complainant about the occurrence.

Complainant along with her son reached the spot and saw that the petitioner and his brother had already demolished the Kotha and boundary wall and were taking away bricks etc.from the spot.

CRM not M-10247 of 2011 (O&M) -5- Thus, in the present case, occurrence had taken place on 4th December, 2006.

Learned counsel for the petitioner has placed on record coloured photocopy of the Passport of the petitioner.

A perusal of the same reveals that the petitioner had left India on 7th October, 2006 and had returned to India on 7th January, 2007.

Thus, petitioner could not have been present at the spot on 4th December, 2006, as on the alleged date of occurrence, petitioner was not in India.

In these circumstances, continuation of criminal proceedings against the petitioner would be nothing but abuse of process of law.

Accordingly, this petition is allowed.

Criminal complaint No.105/1/09 dated 15.06.2007 “Bimla Rani versus Surjit Singh and another”.

(Annexure P-3) under Sections 378, 380, 427, 442, 452 and 34 IPC and all the subsequent proceedings arising therefrom, qua the petitioner are quashed.

(SABINA) JUDGE May 20, 2013 sandeep sethi