Dharmatma Singh Vs. Harminder
Singh & Ors.
J U D G M E N T
A. K. PATNAIK, J.
1.
Leave
granted.
2.
This
is an appeal by way of Special Leave against the order dated 25.03.2008 of the High
Court of Punjab and Haryana in Criminal Misc. No.10664-M of 2007 quashing a
criminal proceeding against respondents Nos. 1 and 2.
3.
The
relevant facts briefly are that on 12.12.2004, F.I.R. No.276 was registered at Police
Station Sadar, District Ludhiana, against the appellant under Sections 452, 324,
323, 506, 326 read with Section 34 of the Indian Penal Code (for short `the
IPC') on information furnished by respondent No.1. The allegations in the
F.I.R. were that on 12.12.2004, at about 8.00 a.m., the respondent No.1 and his
mother were on their plot of land and they had engaged mason and labours for erecting
walls on the plot when the appellant with others came armed with weapons and
started beating the respondent No.1 and his mother and as a result the
respondent No.1 and his mother suffered injuries and were admitted in the hospital.
On 13.12.2004, the
appellant gave a different version of the incident on 12.12.2004 to the police alleging
that when he along with his father Mohan Singh reached the plot, they saw the
respondent Nos. 1 and 2 along with others erecting walls on the plot and when
Mohan Singh stopped the mason saying that the plot was a disputed one,
respondent no.2 gave a lalkara and all others attacked Mohan Singh and the
appellant caused injuries on them and as a result they have been admitted to the
hospital. After investigation, the police filed two challans on 02.02.2006 before
the Judicial Magistrate, First Class, Ludhiana.
Under one challan, the
appellant, his father Mohan Singh and Bhupinder Singh were charge-sheeted for
offences under Sections 452, 323, 326, 506 read with Section 34 of the IPC and under
the other challan, respondent Nos.1 and 2 and some others were charge-sheeted for
offences under Sections 342, 323, 324, 148 of the IPC. On 22.03.2006, the
respondent No.1 submitted an application to the Additional Director General of Police,
Crime Branch, Punjab, pursuant to which the prosecution moved an application before
the Judicial Magistrate, First Class on 19.07.2006 for permission to
investigate further in the case and on 27.07.2006 the Judicial Magistrate, First
Class, Ludhiana, granted such permission to the prosecution.
4.
After
further investigation, the Superintendent of Police, City-II, Ludhiana,
submitted his report to the Deputy Inspector General of Police, Ludhiana Range.
The relevant portion of the report of the Superintendent of Police, City-II,
Ludhiana, which contains his conclusions after further investigation, is
extracted hereinbelow: "I found during my investigation that Mohan Singh,
son of Shri Sher Singh , Dharmatma Singh, Harpal Singh, Jagdev Singh and
Bhupinder Singh, sons of Mohan Singh, residents of Pullanwal, sold one plot of 1
kanal 13 marlas on 09.03.2004 to Bharpur Sigh, Harnek Singh, sons of Balbir
Singh, Jagjit Singh, son of Amarjit Singh, Gurcharan Singh, son of Hari Dass
and Jagdev Singh, son of Harpal Singh, resident of Phulanawal through
registered sale deed vasikha No.23895 and the mutation No.10940 duly entered in
the name of purchasing party.
The purchasing party
Harminder Singh @ Hindri, son of Shri Harnek Singh on 12.12.2004 was
constructing 4 walls on this plot by employing labours and mason and while so in
the meantime Dharmatma Sigh, Bhupinder Singh, sons of Mohan Singh and Mohan Singh
came present on this plot and they stopped forcibly Harminder Singh not to erect
4 walls and when Harminder Singh @ Hindri did not stop, they started beating Harminder
Singh @ Hindri with their weapons and he ultimately for his self defence ran towards
his house and all these three persons while following Harminder Singh entered his
house. Smt. Kamaljit Kaur, mother of Harminder Singh was also present in the house
and in this incident, she got also various injuries. During this incident, Mann
Singh, Bharpur Singh, son of Balbir Singh also come present at the place of occurrence,
after hearing the raula of Harminder Singh @ Hindri and his mother Kamaljit
kaur and none was other present at the place of seen and Dharmatma Singh party have
wrongly mentioned the name of other persons in the cross case.
In this incident,
Dharmatma Singh also got some injuries and as a result of that and as per M.L.R.,
a case under Sections 323, 324 IPC alleged to have been made out and the injuries,
which got by Harminder Singh @ Hindri etc., a case under Sections 323, 324, 326
IPC is made out. Since Dharmatama Singh, Bhupinder Singh and Mohan Singh while
entering into the house of Harminder Singh @ Hindri gave injury to Harminder Singh
@ Hindri and the aforesaid Harminder Singh for his self defence gave some injuries
to Dharmatma Singh etc. and the same shall come under the definition of self defence
and, therefore, no proceeding/case can be initiated against Harminder Singh @
Hindri party and therefore, the cross case as registered against Harminder Singh
@ Hindri party is required to be cancelled.
And if your goodself agree
with the report, please necessary orders be issued in this regard to S.H.O. Police
Station Sadar, Ludhiana. Sd/- (D. P. Singh) S. P. City-II, Ludhiana"It
will be clear from the aforesaid extract from the report of further investigation
that Superintendent of Police, City II, Ludhiana, was of the opinion that respondent
No.1 gave some injuries to the appellant and others for his self-defence and
such injuries come under the definition of right of private defence and, therefore,
no proceedings could be initiated against respondent No.1 and the case registered
against respondent No.1 should be cancelled.
5.
The
Deputy Inspector General of Police, Ludhiana Range, to whom the aforesaid report
was submitted, referred the matter to the Additional Director General of
Police, Crime Branch, Punjab, Chandigarh, and the Additional Director General
of Police was of the opinion that as the challans had already been filed against
the respondents in the cross-case, the decision of the case should be left to the
Court. The opinion of the Additional Director General of Police as stated in
his communication to the Deputy Inspector General of Police, Ludhiana Range,
Ludhiana, is quoted herein below:
"After thoroughly
investigating this case, finding has already been recorded at ADGP/Crime level that
Man Singh, Harminder Singh party did not cause injuries to other party in self defence.
In the main case and cross case, challan has already been presented in the
court. During further investigation, no new evidence came on record. In other
words, report of S.P. City I, Ludhiana is not based on any such evidence which
was not available at the time of inquiry conducted by the Crime Wing. So, the
cross case does not deserve to be cancelled. By ignoring the above report, decision
of the case should be left to the court. Sd/- For Addl. Director General of Police,
Crime, Punjab, Chandigarh"
6.
However,
before the Court of the Judicial Magistrate, First Class, Ludhiana, could apply
its mind and take a decision on the original challan against respondents No. 1
and 2 and on the report of further investigation recommending dropping of the
criminal proceedings against them, respondent Nos. 1 and 2 filed Criminal Misc.
Application No.10664-M of 2007 under Section 482 Cr.P.C. on 17.02.2007 in the High
Court of Punjab and Haryana praying for quashing of DDR No.15 dated 13.12.2004 and
the challan filed against them by the police in the Court of Judicial Magistrate,
First Class. After considering the report of further investigation recommending
dropping of the criminal proceedings against respondent No.1 and others, the High
Court passed the impugned order dated 25.03.2008 quashing the criminal proceedings
initiated pursuant to the DDR No.15 dated 13.12.2004 and further directing that
the criminal proceedings against the appellant at the behest of the respondent No.1
initiated pursuant to the F.I.R. No. 276 dated 12.12.2004 shall not be
affected.
7.
Learned
counsel for the appellant submitted that the power under Section 482 of the Cr.P.C.
is to be exercised only in the exceptional circumstances and that the High
Court should not have exercised this power and quashed the criminal proceedings
against the respondents No.1 and 2 when the Magistrate was yet to exercise his
judicial mind under Section 190 of the Cr.P.C. to the police reports filed
under Section 173 of the Cr.P.C. He submitted that the Magistrate before whom the
entire records were placed including the evidence collected during the investigation
was in a better position to appreciate the facts and circumstances of the case
and pass orders whether to take cognizance of the offences against the
respondents No.1 and 2 registered pursuant to the DDR No.15 dated 13.12.2004 on
the basis of information furnished by the appellant. Learned counsel for the respondent
Nos. 1 and 2, on the other hand, relied on the report of the Superintendent of
Police, City-II, Ludhiana, recommending dropping of the criminal proceedings against
them and supported the impugned order passed by the High Court quashing the
criminal proceedings against them.
8.
For
deciding the issue, we must first refer to the provisions of Section 173 of the
Cr.P.C. under which the police submits reports after investigation and after further
investigation, Section 190 of the Cr. P.C. under which the Magistrate takes cognizance
of an offence upon a police report and Section 482 of the Cr.P.C. under which
the High Court exercises its powers to quash the criminal proceedings. These three
provisions of the Cr.P.C. are extracted below: "173. Report of police
officer on completion of investigation. (1) Every investigation under this Chapter
shall be completed without unnecessary delay.
[(1A) The Investigation
in relation to rape of a child may be completed within three months from the date
on which the information was recorded by the officer in charge of the police
station.] (2)(i) As soon as it is completed, the officer in charge of the police
station shall forward to a Magistrate empowered to take cognizance of the offence
on a police report, a report in the form prescribed by the State Government,
stating-
a. the names of the
parties;
b. the nature of the
information;
c. the names of the
persons who appear to be acquainted with the circumstances of the case;
d. whether any offence
appears to have been committed and, if so, by whom ;
e. whether the accused has
been arrested;
f. whether he has been
released on his bond and, if so, weather with or without sureties;
g. whether he has been forwarded
in custody under section 170.
h. whether the report of
medical examination of the woman has been attached where investigation relates to
an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code
(45 of 1860)]
(ii) The officer shall
also communicate, in such manner as may be prescribed by the State Government, the
action taken by him, to the person, if any, by whom the information relating to
the commission of the offence was first given. (3) Where a superior officer of police
has been appointed under section 158, the report shall, in any case in which the
State Government by general or special order so directs, be submitted through that
officer, and he may, pending the orders of the Magistrate, direct the officer in
charge of the police station to make further investigation. (4) Whenever it appears
from a report forwarded under this section that the accused has been released on
his bond, the Magistrate shall make such order- for the discharge of such bond or
otherwise as he thinks fit. (5) When such report is in respect of a case to which
section 170 applies, the police officer shall forward to the Magistrate
alongwith the report-
a. all documents or relevant
extracts thereof on which the prosecution proposes to rely other than those already
sent to the Magistrate during investigation;
b. the statements-recorded
under section 161 of all the persons whom the prosecution proposes to examine as
its witnesses.
(6) If the police
officer is of opinion that any part of any such statement is not relevant to the
subject-matter of the proceedings or that its disclosure to the accused is not essential
in the interests of justice and is inexpedient in the public interest, he shall
indicate that part of the statement and append a note requesting the Magistrate
to exclude that part from the copies to be granted to the accused and stating
his reasons for making such request.
(7) Where the police
officer investigating the case finds it convenient so to do, he may furnish to
the accused copies of all or any of the documents referred to in sub-section
(5).(8) Nothing in this section shall be deemed to preclude further investigation
in respect of an offence after a report under subsection (2) has been forwarded
to the Magistrate and, where upon such investigation, the officer in charge of
the police station obtains further evidence, oral or documentary, he shall forward
to the Magistrate a further report or reports regarding such evidence in the form
prescribed ; and the provisions of sub-sections (2) to (6) shall, as far as may
be, apply in relation to such report or reports as they apply in relation to a report
forwarded under sub-section (2).
190. Cognizance of offences
by Magistrate. - (1) Subject to the provisions of this Chapter, any Magistrate of
the first class, and any Magistrate of the second class specially empowered in this
behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving
a complaint of facts which constitute such offence; (b) upon a police report of
such facts; (c) upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial
Magistrate may empower any Magistrate of the second class to take cognizance
under sub-section (1) of such offences as are within his competence to inquire into
or try. 482. Saving of inherent power of High Court.- Nothing in this Code
shall be deemed to limit or affect the inherent powers of the High Court to make
such orders as may be necessary to give effect to any order under this Code, or
to prevent abuse of the process of any Court or otherwise to secure the ends of
justice."
9.
A
reading of provisions of sub-section (2) of Section 173, Cr.P.C. would show
that as soon as the investigation is completed, the officer in charge of the police
station is required to forward the police report to the Magistrate empowered to
take cognizance of the offence stating inter alia whether an offence appears to
have been committed and if so, by whom. Sub-section (8) of Section 173 further
provides that where upon further investigation, the officer in charge of the
police station obtains further evidence, oral or documentary, he shall also forward
to the Magistrate a further report regarding such evidence and the provisions
of sub-section (2) of Section 173, Cr.P.C., shall, as far as may be, apply in
relation to such report or reports as they apply in relation to a report forwarded
under sub-section (2).
Thus, the report
under sub-section (2) of Section 173 after the initial investigation as well as
the further report under sub-section (8) of Section 173 after further investigation
constitute "police report" and have to be forwarded to the Magistrate
empowered to take cognizance of the offence. It will also be clear from Section
190 (b) of the Cr.P.C. that it is the Magistrate, who has the power to take
cognizance of any offence upon a "police report" of such facts which
constitute an offence. Thus, when a police report is forwarded to the
Magistrate either under sub-section (2) or under sub-section (8) of Section 173,
Cr.P.C., it is for the Magistrate to apply his mind to the police report and
take a view whether to take cognizance of an offence or not to take cognizance
of offence against an accused person.
10.
It
follows that where the police report forwarded to the Magistrate under Section
173 (2) of the Cr.P.C. states that a person has committed an offence, but after
investigation the further report under Section 173 (8) of the Cr.P.C. states
that the person has not committed the offence, it is for the Magistrate to form
an opinion whether the facts, set out in the two reports, make out an offence committed
by the person. This interpretation has given by this Court in Abhinandan Jha
& Ors. v. Dinesh Mishra [AIR 1968 SC 117] to the provisions of Section 173 and
Section 190 of the Criminal Procedure Code, 1898, which were the same as in the
Criminal Procedure Code, 1973. In Abhinandan Jha (supra), para 15 at page 122
of the AIR this Court observed: "...
The police, after such
investigation, may submit a charge-sheet, or, again submit a final report,
depending upon the further investigation made by them. If ultimately, the Magistrate
forms the opinion that the facts, set out in the final report, constitute an offence,
he can take cognizance of the offence, under Section 190(1)(b), notwithstanding
the contrary opinion of the police, expressed in the final report."
11.
After
referring to the law laid down in Abhinandan Jha (supra) this Court has further
held in Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Anr. [AIR
1996 SC 309] that where the police in its report of investigation or further
investigation recommends discharge of the accused, but the complainant seeks to
satisfy the Court that a case for taking cognizance was made out, the Court must
consider the objections of the complainant and if it overrules such objections,
it is just and desirable that the reasons for overruling the objections of the
complainant be recorded by the Court and this was necessary because the Court while
exercising power under Section 190, Cr.P.C. whether to take cognizance or not to
take cognizance exercises judicial discretion.
12.
In
the facts of the present case, the police in its report submitted to the
Judicial Magistrate, First Class, Ludhiana, on 02.02.2006 had filed two challans,
one against the appellant, his father Mohan Singh and Bhupinder Singh stating that
they had committed offences under Sections 452, 323, 326, 506 read with Section
34 of the IPC and the other challan against the respondent Nos.1 and 2 and some
others stating that they had committed offences under Sections 342, 323, 324, 148
of the IPC.
Pursuant to
permission granted by the learned Magistrate on 27.07.2006 for further investigation,
a further report has been made by the Superintendent of Police, City-II,
Ludhiana, stating that respondent no.1 for his self-defence had caused injuries
to the appellant and others and hence the cross-case against the respondent
no.1 is required to be cancelled. This further report has to be forwarded to the
learned Magistrate and as has been held by this Court in Abhinandan Jha (supra)
and Mrs. Rupan Deol Bajaj (supra) it was for the learned Magistrate to apply judicial
mind to the facts stated in the reports submitted under sub-sections (2) and
(8) respectively of Section 173, Cr.P.C., and to form an opinion whether to take
cognizance or not to take cognizance against the respondent no.1 after considering
the objections, if any, of the complainant, namely, the appellant.
13.
Section
482 of the Cr.P.C. saves the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order under the Code or to prevent
abuse of the process of any court or otherwise to secure the ends of justice. It
has been held by this Court in R. P. Kapur v. State of Punjab [AIR 1960 SC 866]
that Section 561-A of the Criminal Procedure Code, 1898 (which corresponds to
Section 482 of the Criminal Procedure Code, 1973) saves the inherent power of the
High Court to make such orders as may be necessary to give effect to any order
under the Code or to prevent abuse of the process of any court or otherwise to secure
the ends of justice and such inherent power cannot be exercised in regard to matters
specifically covered by the other provisions of the Code and therefore where the
Magistrate has not applied his mind under Section 190 of the Cr.P.C. to the
merits of the reports and passed order, the High Court ought not to consider a
request for quashing the proceedings.
In the case of R. P. Kapur
(supra) on 10.12.1958, M.L. Sethi lodged a First Information Report against R.P.
Kapur and alleged that he and his mother-in-law had committed offences under
Sections 420-109, 114 and 120B of the Indian Penal Code. R.P. Kapur moved the Punjab
High Court under Section 561-A of the Code of Criminal Procedure for quashing the
proceedings initiated by the First Information Report. When the petition of R.P.
Kapur was pending in the High Court, the police report was submitted under
Section 173, Cr.P.C. and the High Court held that no case had been made out for
quashing the proceedings under Section 561-A of the Criminal Procedure Code,
1898 and dismissed the petition. R. P. Kapur carried an appeal by way of Special
Leave to this Court and this Court dismissed the appeal for inter alia the
following reasons:
" ... In the present
case the magistrate before whom the police report has been filed under S. 173
of the Code has yet not applied his mind to the merits of the said report and it
may be assumed in favour of the appellant that his request for the quashing of the
proceedings is not at the present stage covered by any specific provision of
the Code. It is well established that the inherent jurisdiction of the High Court
can be exercised to quash proceedings in a proper case either to prevent the abuse
of the process of any court or otherwise to secure the ends of justice. Ordinarily,
criminal proceedings instituted against an accused person must be tried under
the provisions of the Code, and the High Court would be reluctant to interfere
with the said proceedings at an interlocutory stage..." As we have found in
the present case that learned Magistrate had not applied his mind to the merits
of the reports filed under Section 173, Cr.P.C., we are of the considered opinion
that the exercise of power by the High Court under Section 482, Cr.P.C., was at
an interlocutory stage and was not warranted in the facts of this case.
14.
In
the result, the appeal is allowed and the impugned order dated 25.03.2008 is set
aside. The police will forward the further report of the Superintendent of
Police, City-II, Ludhiana, to the Magistrate concerned and the learned Magistrate
will apply his mind to the police report already forwarded to him and the further
report of further investigation forwarded to him and take a final decision in accordance
with law after considering the objections, if any, of the appellant against the
further report of further investigation.
..........................J.
(R.V. Raveendran)
..........................J.
(A. K. Patnaik)
New
Delhi,
May
10, 2011
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