High Court of Punjab and HaryanaCRM-M/14793/2021disposed of

Krishan v. State Of Haryana And ANR

2022-12-22Mr. Justice Jasjit Singh Bedi15 pages

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>102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 channelised 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 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.

(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 concerned Act (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 concerned Act, 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".

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( , "16. Even otherwise it must be remembered that the provision invoked by the accused before the High Court is Section 482 Cr. P.C and that this Court is hearing an appeal from an order under Section 482 of Cr.P.C. Section 482 of Cr.P.C reads as follows: - >482. Saving of inherent power of the 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."

17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High court can exercise jurisdiction under Section 482 of Cr.P.C even when the discharge application is pending with the trial court G. Sagar Suri and Anr. v. State of U.P. and Others, 2000(1) RCR (Criminal) 707: (2000) 2 SCC 636 (Para 7). Umesh Kumar v. State of Andhra Pradesh and Anr. (2013) 10 SCC 591 (Para 20). Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced, and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court".

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( , -./ It is, however, disturbing to note that a confession has not been brought on records in a manner contemplated by law. Law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. We intend to point out that only that part of confession which is admissible would be leading to the recovery of dead body and/or recovery of articles of Biswanath, the purported confession proceeded to state even the mode and manner in which Biswanath was allegedly killed. It should not have been done. It may influence the mind of the court.

[See State of Maharashtra v. Damu S/o Gopinath Shinde & Others (2000) 6 SCC 269 at p. 282 para 35]

53. In Anter Singh v. State of Rajasthan [(2004) 10 SCC 657], it was stated :

"11. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya v. Emperor in the following words, which have become locus classicus: (AIR p. 70, para 10).

"It is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that I will produce a knife concealed in the roof of my house does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the

house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."" [But see Dhananjoy Chatterjee @ Dhana v. State of West Bengal [(1994) 2 SCC 220 at p.234-235].

54. Therefore, we would take note of only that portion of the confession which is admissible in evidence".

13.

Coming back to the facts of the present case, as is apparent, the conversation between Dinesh on the one hand and Akhil and Manoj @ Monu on the other, only shows that they were talking about the petitioner in the context of the Naib Tehsildar examination. By no stretch of imagination, can such conversation inculpate the petitioner who is not a party to the said conversation. If this piece of evidence is to be taken to be admissible qua the petitioner, it would have very serious repercussions. A situation may arise where two persons, in order to implicate a third may have a damaging conversation with each other about the third person who is not a party to the said conversation.

Similarly, so far as the conversation between the petitioner and Akhil is concerned as is borne out from CDR on record (Annexure P-9), it would only show that the petitioner had spoken to Akhil on 23.05.2019, 25.05.2019 and 26.05.2019. Apparently, the contents of the conversation are not a part of the report under Section 173 Cr.P.C. The CDR would show that the petitioner and his co-accused have spoken on number of occasions much prior to the date of occurrence/FIR i.e. 26.05.2019. On the other hand, the petitioner has established that he was well known to Akhil as they were

classmates as is borne out from the Certificates (Annexures P-4, P-5, P-6 and P-7). Therefore, merely being in contact with the co-accused would not inculpate the petitioner in the absence of any substantive evidence against him. Lastly, the disclosure statement of his co-accused is completely inadmissible. In fact, the Hon'ble Supreme Court in 'Aloke Nath Dutta and others (supra)', has deprecated this practice of placing on record the entire disclosure statement of an accused and has gone on to say that only the part which only leads to the recovery must be made a part of the record as the placing on record of the entire statement including the inadmissible part prejudices the mind of the Court.

In the present case, similar is the situation. The entire statement is inadmissible except to the extent of the recovery of a mobile phone from Akhil.

14.

A perusal of the judgements in 'Bhajan Lal's case (supra) and Anand Kumar Mohatta and another's case (supra), would show that where the report under Section 173 Cr.P.C. alongwith the accompanying documents do not show the commission of any offence whatsoever, it would certainly amount to abuse of the process of the Court if the proceedings qua the accused were allowed to continue even though the charge-sheet had been filed. In the present case, as has already been discussed hereinabove, taking the entire evidence against the petitioner to be correct, absolutely no offence whatsoever is established by the evidence on record qua the petitioner. Therefore, the continuation of the proceedings qua the petitioner would be nothing but an abuse of the process of the Court. 15.

In view of the above discussion, I find merit in the present petition and the FIR No.164 dated 26.05.2019 under Sections 66, 66b, 66d

, of the Information Technology (Amendment) Act, 2008, Section 120-B, 201, 420, 467, 468 and 471 IPC registered at Police Station Rewari City, District Rewari (Annexure P-1), the report under Section 173(8) Cr.P.C. dated 12.02.2020 (Annexure P-3), the impugned charge-sheet dated 02.12.2019 (Annexure P-12) and all other subsequent proceedings arising therefrom are hereby quashed qua the petitioner (Krishan) alone. 16.

It is made clear that qua the other accused, the proceedings shall continue in accordance with law.

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