Shivlal Joshi Vs. State of Rajasthan and ors. - Court Judgment

Deo Narayan Thanvi, J.

1. These are ten Miscellaneous Petitions filed under Section 482 of the Criminal Procedure Code, in short 'the Code', whereby the petitioner, who at the relevant time, was posted as Addl. Superintendent of Police, Bhilwara, has prayed for quashing of F.I.Rs. No. 120 to 126, 128, 129 and 130 of 2005,, which were registered at the Police Station, Mandal on the basis of the complaints filed by the private respondents before the learned Judl. Magistrate, Mandal, Distt. Bhilwara under Section 147, 148, 149, 458, 323, 295, 392, 384, 330, 500 & 504 IPC and were forwarded under Section 156(3) of the Code for investigation by the police. Since in all these complaints, the offences as per the allegations and the accused are similar including the present petitioner and also the date of incident with a little variance of time i.e. between 9 PM to 12.15 AM of the intervening night of 08.04.2005 and 09.04.2005, they are being disposed-of by this common order.

2. It has been pleaded in all these Misc. Petitions that on 08.04.2005 at about 6.30 PM, yearly procession of 'Phooldol' was being undertaken by members of Hindu community of village Mandal as per their ancient tradition. The procession started from Bada Mandir, Charbhuja at around 5.30 PM with 200 to 250 Hindus, who were playing with ' Gulal' and singing ' Bhajans'. The procession reached at 'Lakharon Ka Chowk' at 6 PM. At that point of time, 150 to 200 persons of Muslim community came from Ansari Mohalla, who were armed with deadly weapons and Shouted & agitated on account of throwing 'Gulal' on them. They also attacked the procession carried out by the Hindus. The SHO, PS, Mandal and his team tried to control the situation alongwith Sh. Pradeep Mohan Sharma, Circle Officer, Bhilwara but the agitated members of the Muslim community pelted stones and attacked the police party, whereby the Circle Officer Sh. Pradeep Mohan Sharma, Constables Kanvari Lal and Ladulal received injuries and so also the members of the Hindu community. The report of the incident was lodged by Bhaju Ram, SHO, PS, Mandal on 08.04.2005 itself at 6.30 PM against Jamil Mohd. and 27 other persons vide FIR No. 86/05 for the offences under Section 147, 148, 149, 307, 323, 353, 332 and 153A IPC, Annex. 1. The second FIR being No. 87/05 was also lodged against 9 persons of the Hindu community that after 'Phooldol' procession disbursed, they hatched a criminal conspiracy and looted the shops and dwellings of Muslim community situated in various Colonies. On the situation becoming volatile, the District Magistrate ordered use of force against both the communities and when the situation became tensed, the firing was ordered on seeing the damage to the life and property. The police party also received injuries. The private respondents named in the FIRs were arrested in connection with the FIR No. 86/05 on 09.04.2005 and their injuries were mentioned in their arrest memos and were medically examined. Their police custody remand was sought on 10.04.2005 (Annex. 2) and they were sent to judicial custody on 12.04.2005. They also filed the bail application, which was rejected on 13.04.2005 vide Annex-4. They again moved the bail application under Section 439 CrPC before the learned Sessions Judge, Bhilwara, who allowed their bail application on 16.04.2005 vide Annex. 5.

3. It is further pleaded that the petitioner was posted as Additional Superintendent of Police, Bhilwara at the relevant time and was busy in controlling the incident but some of the members of the Muslim community, who were enraged with him, filed complaints before the learned Judicial Magistrate between the period 27.04.2005 to 10.05.2005, which are under challenge by way of these Misc. Petitions before this Court. In one of these complaints filed by private respondent viz; Abdul Kalam (being Misc. Petition No. 795/05), it is alleged that at 7.30 PM, curfew was imposed by the administration and when he alongwith his family members was inside the houses and taking meals on the upper floor of the house, there was a knock on the main door of the house at around 10.30 PM. When he came down and opened the gate, he found 100-150 police personnels standing in front of the house, who forcibly entered into their house, assaulted male members of the family, took away the cash, ornaments etc. belonging to the females. The ladies were also abused. They were taken to the police station and were locked up. They were medically examined and were beaten by lathis and kicks. They were released on bail on 16.04.2005 and, therefore, they got themselves medically examined. Thereafter, they have filed these complaints, which have been sent by the learned Magistrate for investigation under Section 156(3) Cr.P.C., which are under challenge.

4. It is contended by the learned Counsel for the petitioner that these FIRs are nothing but an abuse of the process of law and is a counter blast to the FIR originally lodged by the police against the members of the Muslim community being No. 86/05. The accused respondents never raised objection with regard to entering of the police personnels into their houses in the intervening night of 08.04.2005 and 01.04.2005 before the learned Magistrate, when they were produced for the police custody remand on 10.04.2005 and in their bail applications (Annexs. 4 and 5) and also immediately after release on 16.04.2005. Some of the FIR lodgers obtained medical certificate but these complaints against the petitioner and other police personnels were filed between the period from 27.04.2005 to 10.05.2005 i.e. the dates ranging from 12 to 24 days from the date of their release and 20 to 32 days after the date of incident. According to the learned Counsel, filing of a complaint in the Court of learned Magistrate after such a long interval of the incident, is nothing but whole action is taken malafide in a unified fashion to humiliate and harass the petitioner, who were acting in discharge of their duties on the date of incident i.e. 08.04.2005. In support of his contention, he has placed reliance on certain authorities, which will be referred at the appropriate stage.

5. In reply, it is contended by the learned Counsel for the private respondents that the respondents were under fear and they could not lodge the timely FIRs but the incident is established from the medical reports; obtained by them on 16.04.2005 and thus, after investigation, true facts will come out as to what offence the police officials have committed. Quashing the FIRs at the initial stage is not permitted under Section 482 of the Code because there is no abuse, of the process in getting the matter investigated, especially when the contesting respondents have received the injuries. He has further submitted that the police wrongly registered a case against them under Section 307 IPC and they were accordingly discharged by this Court in S.B.Cr. Revision No. 108/2006 decided on 17.04.2006. During the course of arguments, the medical certificates have also been shown for perusal of this Court, which are of 16.04.2005.

6. Having considered the rival arguments, I may straightway say that the lodging of the present complaints, which are under- challenge in these Misc. Petitions, after a considerable delay of 20 to 32 days itself shows that they have been filed to counter blast the allegations levelled in the original FIR being No. 86/05 registered against the accused respondents. I am reminded of a legal maxim 'Accusator post rationabile tempus non est audiendus, nisi se bene de omissione excusaverit', which means that he, who accuses, should not be heard after the lapse of a reasonable time, unless he can explain satisfactorily the delay, which is clearly applicable on the facts of the case in hand. The complaints were filed by the accused respondents before the learned Judicial Magistrate after a delay of 20 to 32 days from the date of incident i.e. 08.04.2005 when the criminal riot took place between the members of two communities and the learned Counsel for the contesting respondents has not been able to satisfactorily explain the delay caused in filing these complaints.

7. For the sake of convenience, the learned Counsel for the petitioner has filed a Chart showing different dates of filing the complaints before the learned Magistrate and also the dates of their police custody & judicial custody. A bare look at the Chart produced (Schedule appended to the Order), indicates that the FIR was lodged on 08.04.2005 by the SHO, PS, Mandal against present 10 contesting respondents and 17 others, being Annex.1, at 7.30 PM for an incident of 6 PM in the procession, whereas the present complaints have been filed after 20 to 32 days. The Chart also shows that the accused respondents were arrested on 09.04.2005 and sent to the police custody remand on 10.04.2005 and thereafter to judicial custody on 12.04.2005. Their bail application was rejected on 13.04.2005 vide Annex. 4 and it was granted by the learned Sessions Judge vide order dt. 16.04.2005 (Annex. 5). In both the bail applications filed on 13.04.2005 and 16.04.2005, Annexs. 4 and 5 respectively, the accused respondents nowhere stated even a single word that the police personnels, including the present petitioner, entered into their houses during imposition of curfew and committed any offence. Had it been so, the accused respondents could have definitely narrated such story in their bail applications. That apart, they were released on bail on 16.04.2005 but they kept silent for 12 days and thereafter, in the stereotyped and calculated manner, the present FIRs have been lodged against the petitioner and other police officers, wherein the allegations are of similar nature, which cannot be believed and rather, they can be termed as absurd and inherently improbable, whereby a reasonable conclusion can be arrived-at for proceeding against the petitioner.

8. It is pertinent to note that on 08.04.2005, there was a tensed situation in the town on account of clash between two communities at religious procession, which, according to the respondents themselves, resulted in curfew at 7.30 PM. It cannot be believed by any stretch of imagination that the police personnels in a strength of 100 to 150 entered into the house of the accused respondents and took away the ornaments of the females. Had there been such a situation, it ought to have been immediately reported to the higher authorities of the Police or to the Media or to any other executive authority. Filing a complaint after a considerable lapse of time is nothing but a counter blast and clear abuse of the process of law.

9. This Court while taking support from the decision of the Hon'ble Supreme Court in State of Haryana v. Bhajanlal reported in : 1992 SCC Supp (1) p. 335 has also laid down certain guidelines, whereby powers under Section 482 CrPC in such cases can be invoked by this Court in Mohan Bhatia and Ors. v. State of Rajasthan reported in 2008 (2) CrLR (Raj) 1017. In Bhajan Lal's case, guidelines No. 5 and 7 are relevant for the purpose of this case, which reads as under:

(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.

(7) Where a criminal proceeding is manifestly attended with malafide 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.

10. Here in the present case, as stated above, the allegations in the FIRs under challenge are highly absurd and inherently improbable and even levelled maliciously as a counter blast to the FIR No. 86/05, Police Station, Mandal lodged against the informant and respondent No. 2 in all the criminal misc. petitions, as all the FIR lodgers were accused in the above FIR lodged at the police station against them on the date of procession i.e. 08.04.2005

11. So far as the medical evidence is concerned, which has not been produced with the Misc. Petitions by the respondents but shown for perusal of the Court during arguments in which there is no injury on Hazi Ahmed in FIR No. 121/05, Hafiz Mohd. in FIR No. 122/05, Abdul Kalam in FIR No. 128/05 and Chand Mohd. in FIR No. 129/05. The injuries in rest of the six FIRS No. 120/05, 123/05, 124/05, 125/05, 126/05 and 130/05 are almost simple in nature, except one grievous injury in FIR No. 124/05 and also in FIR No. 125/05, but these injuries have been examined not at the instance of FIR lodgers, who are respondents in these Misc. Petitions but at the requisition of the SHO, PS, Mandal on 16.04.2005, when they were bailed out. The contention of the learned Counsel for the petitioner that the accused respondents received injuries during the criminal riot, cannot be ruled out in the circumstances under which the incident took place. Accordingly, the allegation of causing injuries is afterthought & absurd.

12. The contention of the learned Counsel for the accused respondents than they were discharged under Section 307 IPC in S. B.Cr. Revision No. 108/06 by this Court on 17.04.2006 is also devoid of force, because while disposing of that revision petition, the learned Single Judge of this Court has observed that it was a case of free fight between the two groups and, therefore, even taking the evidence as a whole, it cannot be presumed that the petitioner intended to cause the murder. However, the order framing charges against them under Section 147 148, 153A, 532 and 353 IPC was maintained.

13. Though the law cited by the learned Counsel for the petitioner is on the applicability of Section 197 CrPC, where cognizance cannot be taken against a public servant without sanction, when he acts or purports to act in the discharge of his official duty but the guidelines given in those decisions are relevant for the purpose of reference.

14. In Rizwan Ahmed Javed Shaikh v. Jammal Patel reported in 2001 CrLR (SC) 542, the Hon'ble Supreme Court while dismissing the appeal, came to the conclusion that the act was in the discharge of the duty and no prosecution can be launched against the public officer under Section 197(2) without the sanction of the competent authority but while appreciating the facts, it has been observed that the allegation about the complainants having been beaten mercilessly in police custody by one of the police officials, was vague.

15. In Sunil Kumar v. Excorts Yamaha Motors Ltd. reported in 1999 CrLR (SC) 790, the Hon'ble Supreme Court quashed the FIR filed under Section 420, 406 & 468 IPC because the same was lodged by the complainant with an ulterior motive for wreaking vengeance and to pre-empt the filing of the criminal complaint against him under Section 138 of the Negotiable Instruments Act.

16. In Priya Vrat Singh v. Shyam Ji Sahai reported in : (2008) 8 SCC 232, the proceedings before the Special CJM were quashed under Section 482 CrPC by the Hon'ble Supreme Court on account of the fact that the marriage was protected under Section 15 of the Marriage Act and the respondent tried to commit suicide in March, 1992. They started living separately from July, 1992. In the meantime, appellant Priya Vrat filed a suit for dissolution of marriage on the ground of cruelty and harassment. The suit was decreed ex parte in Jan. 1993. Thereafter, the appellant married with another lady in March, 1993 and in Dec. 1994, the respondent filed a private complaint before the CJM, Varanasi in which the allegations of dowry harassment were made as also under Section 494, 120B and 109 IPC read with Sections 3 & 4 of the Dowry Act. Thereafter, the respondent filed a restoration application, which was allowed and the High Court dismissed the Cr.Misc. Case on 25.10.2001. In this light, the Hon'ble Supreme Court observed that initiation/continuance of the proceeding will amount to abuse of the process of the Court and the appeal was allowed.

17. In the light of the above citations, if this Court permits the continuance of the criminal proceeding in the above FIRs lodged against the present petitioner by the contesting respondents against whom the FIR being No. 86/05 was lodged by the SHO, PS, Mandal on the same day of the incident i.e. 08.04.2005 at 7.30 PM, it will certainly be the abuse of the process of law and it will not only subvert the ends of justice but will also lower down the morale of the police force, who are engaged in maintenance of the law and order, especially when the incident of communal riot takes place. The duty of the police is to protect the welfare of the common man by maintaining law and order and even in doing so, if some force is used, it cannot be categorized as an offence. If the Court allows continuance of such proceedings, especially when the fabricated stories are made out after a considerable delay of time with an ulterior motive for wreaking vengeance as a counter blast, it will certainly subvert the morale of the police force in maintaining public order.

18. In the light of the discussion, made above, all these Miscellaneous Petitions are allowed. The F.I.Rs. No. 120 to 126, 128, 129 and 130 of 2005, which were registered at the Police Station, Mandal on the basis of the complaints filed by the private respondents before the learned Judl. Magistrate, Mandal, Distt. Bhilwara under Section 147, 148, 149, 458, 323, 295, 392, 384, 330, 500 & 504 IPC and were forwarded under Section 156 (3) of the Code for investigation by the police, are quashed & set aside.

SCHEDULE

S.No. Misc. Date Date of Date of Date of Date of Date of FIR

Petition & Time arrest P.C. J.C. Release filing Lodger

No. of Complaint

incident in the

Court

1. 795/05 9.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 10.05.2005 Nazir Mohd.

12.15 AM

2. 796/05 9.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 10.05.2005 Haji Ahmed

12.30 AM

3. 797/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 28.04.2005 Haifz Mohd.

11.00 PM

4. 798/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 28.04.2005 Mohd. Sarif

10.15 PM

5. 799/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 27.04.2005 Jamil Mohd.

10.15 PM

6. 800/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 28.04.2005 Abdul Hameed

9.30 PM

7. 801/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 10.05.2005 Rafique Mohd.

9.45 AM

8. 802/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 27.04.2005 Abdul Kalam

10.30 PM

9. 803/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 27.04.2005 Chand Mohd.

11.30 PM

10. 804/05 8.4.2005 9.4.2005 10.04.05 12.04.05 16.04.05 10.05.2005 Bashir Mohd.

09.00 PM

..