C482/1273/2019 of VINOD BAHUGUNA Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 1273 of 2019

Vinod Bahuguna and another

….......Petitioners

State of Uttarakhand and another …..... Respondents

Present : Mr. D.N. Sharma, Advocate for the petitioners.

Mr. Lalit Miglani, A.G.A. with Mr. Pankaj Joshi, Brief Holder for the State/respondent no.1.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”) is made to the summoning order dated 13.08.2018, passed in Criminal Case No.2330 of 2018, State vs. Vinod Bahuguna and others, under Sections 147, 148, 149, 341, 427, 504, 506, 447 IPC, by the court of Chief Judicial Magistrate, Nainital, District Nainital (for short, “the case”) as well as the entire proceedings of the case.

2. Heard learned counsel for the parties and perused the record.

3. The case is based on an FIR, lodged by the respondent no.2. According to the FIR, on 24.06.2016 at 03:30 in the afternoon, the petitioners along with 30-35 other unknown persons entered in the Sherwood Colony, Nainital. The entry was forceful by shoving the guards. When the guards at the gate tried to stop the petitioners, the persons accompanying the petitioners damaged the CCTV camera wires. The petitioners posted his own security guards at the gate. They entered inside the school, demanded keys of the office and damaged the property. The FIR records that the petitioners have stated that they wanted to take possession of the school. Based on this FIR, an investigation was carried out. After investigation, charge-sheet under Sections 147, 148, 149, 341, 427, 504, 506, 447 IPC was filed against the petitioners and one another. In fact, one of the co-accused Rakesh Sobti has also filed petition under Section 482 of the Code bearing C-482 No.1272 of 2019, Rakesh Sobti vs. State of Uttarakhand and another. The petition filed by Rakesh Sobti was listed today, but statement is given on his behalf that he has already died. That petition was disposed of accordingly. In the charge-sheet filed against the petitioners and another the court took cognizance on 13.08.2018.

4. Learned counsel for the petitioners would submit that the petitioners represent Church of India, who are, in fact, the management of two schools situated in Nainital, but those schools, according to the learned counsel for the petitioners, have unauthorizedly being taken over by the Church of Northern India.

5. It is argued that earlier writ petitions were filed in this Court. In those writ petitions, directions are issued that the parties may agitate their rights before the civil court. It is submitted that civil suit is still pending.

6. Learned counsel for the petitioners would also raise further points in his submissions:-

(i) After the disposal of the writ petition by this Court, on behalf of the petitioners, an application was given to the District Magistrate, Nainital, so as to provide security in taking charge of the school by the Church of India. Court, on behalf of the petitioners, an application was given to the District Magistrate, Nainital, so as to provide security in taking charge of the school by the Church of India.

(ii) With regard to an incident of 24.06.2016, an FIR was lodged on behalf of the petitioners, but it is argued that no action was taken on it, even till date. FIR was lodged on behalf of the petitioners, but it is argued that no action was taken on it, even till date.

(iii) According to the FIR, the CCTV cameras were damaged, but the DVR of such CCTV cameras have not been taken into custody. The charge-sheet merely makes mention of two CDs. damaged, but the DVR of such CCTV cameras have not been taken into custody. The charge-sheet merely makes mention of two CDs.

(iv) The cognizance order is without any reason.

(v) It is necessarily dispute arisen from civil dispute. Therefore, prima facie, no offence is made out. dispute. Therefore, prima facie, no offence is made out.

7. On the other hand, learned State counsel would submit that the incident is admitted. The offence is made out. The Investigating Officer has collected material, which is placed on record. It is submitted that there is no reason to make any interference.

8. It appears that there is dispute between two parties with regard to the management of two schools in Nainital.

9. It is petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”). The jurisdiction, which is exercised to give effect to any order under the Code or to prevent the abuse of process of court or otherwise to secure the ends of justice. This is jurisdiction, which is much wide in aptitude, but at the

same time much guided by the principles of law as laid down by the Hon’ble Supreme Court in catena of decisions. Recently, the law on the point has been reiterated by the Hon’ble Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others, 2021 SCC OnLine SC, 315. In paragraph no.80, the Hon’ble Supreme Court recorded the conclusion, as hereunder:-

“Conclusions:

80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offence;relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;the initial stage;

vii) Quashing of complaint/FIR should be an exception rather than an ordinary rule;exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and encyclopaedia which must disclose all facts and

details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide,

but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can

consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.”

10. In the matters where prima facie case is made out, generally the Court is not expected to make any intervention in the proceedings under Section 482 of the Code. The reliability, credibility of the material is not assessed at this State. If criminal act has its origin in any civil dispute, it in itself does not eliminate the criminal act. Undoubtedly dispute purely civil in nature may not be agitated in criminal court. If dispute essentially civil in nature without any element of criminality and any criminal proceeding in such matter is initiated, such matter may perhaps require interference under Section 482 of the Code. Is it one of the case? The answer is No.

11. On behalf of the petitioners reference has been

made to communication made on behalf of the petitioners to the police, which is Annexure No.16 to this petition. According to it, the representatives of the Church

of India visited in one of the schools on 24.06.2016 at 03:15 in the noon, so that they may take charge of it. But, the representatives of the Church of Northern India created hurdles and used criminal force, did maar peetand extended threats. The FIR in the instant case, also states that on 24.06.2016, the petitioners and others, entered in the school, damaged the property, forcibly tried to take management of the school. The FIR itself discloses the commission of cognizable offence. The Investigating Officer, after investigation, has filed the charge-sheet. He has referred to the CCTV footages. The Investigating Officer also records that two Compact Disks were also taken into possession. The question of DVR at this stage has less bearing. There are various other issues with regard to the admissibility of electronic evidence; for example certificate under Section 65-B of the Indian Evidence Act, 1872. But, those questions cannot be assessed at this stage.

12. The statements of the witnesses namely, Pooran Singh, Mohan Singh, Harish Vishwakarma, Mahesh Bairiya, Smt. Lalit Vishwakarma, Bhupendra Vishwakarma and Pratap Ram have been placed on record. All of them have supported the police case.

Therefore, according to the Investigating Officer offences were prima facie made out against the petitioners and others. He filed the charge-sheet.

13. The entire material which is placed, definitely discloses the commission of cognizable offence.

14. An issue is raised that the cognizance order is without any reason. The word “cognizance” itself is not defined in the Code. It is taking judicial notice by the court. The order taking cognizance need not be discussed in extensively. In the instant case, the cognizance order reveals that the Magistrate taking cognizance has perused case diary and other supporting documents. mention of it has been made in para 2 of the cognizance order. Para 3 of the cognizance and summoning order dated 13.08.2018 reveals that categorically it has been stated, as to which offence is made out against whom. The aspect of taking cognizance has been considered by the Hon’ble Supreme Court in the case of Prasad Shrikant Purohit vs. State of Maharashtra and another, (2015)7 SCC 440. The Hon’ble Supreme Court referred to the judgment of Darshan Singh Ram Kishan vs. State of Maharashtra, (1971)2 SCC 654 and observed as hereunder:-

“73. In Darshan Singh Ram Kishan, (1971) 2 SCC 654 : 1971 SCC (Cri) 628 : AIR 1971 SC 2372, in para 8, with particular reference to Section 190, this Court has held as under : (SCC p. 656)

“8. As provided by Section 190 of the Code of Criminal Procedure, Magistrate may take cognizance of an offence either, (a) upon receiving complaint, or (b) upon police report, or (c) upon information received from person other than police officer or even upon his own information or suspicion that such an offence has been committed. As has often been held, taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at point when Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on complaint, or on police report, or upon information of person other than police officer. Therefore, when Magistrate takes cognizance of an offence upon police report, prima facie he does so of the offence or offences disclosed in such report.”

(emphasis supplied)

The above passage referred to in the said decision makes the position explicitly clear that cognizance would take place at point when Magistrate first takes judicial notice of the offence either on complaint or on police report or upon information of person other than the police officer. Taking judicial notice is nothing but perusing the report of the police officer, proceeding further on that report by opening the file and thereafter taking further steps to ensure the presence of the accused and all other consequential steps including at later stage,

depending upon the nature of offence alleged, to pass necessary order of committal to Court of Session.”

15. bare perusal of the law as laid down by the Hon’ble Supreme Court, makes it abundantly clear that taking judicial notice is nothing, but perusing of the police report and proceeding further on that report by opening the file and thereafter, taking further steps, etc.

16. In the instant case, the cognizance order is valid and has been passed in accordance with law. It has reasons. The court has taken judicial notice of the police report.

17. Instant case is not purely civil in nature. It’s genesis definitely the management of school, but the act as reported is criminal in nature. Therefore, there is no reason to make any interference.

18. Having considered the facts and circumstances of the case, this Court is of the view that the petition has no merits. Accordingly, it deserves to be dismissed.

19. The petition is dismissed.

Sanjay

(Ravindra Maithani, J.)

24.09.2022