DHARMATMA SINGH Vs HARMINDER SINGH .
Bench: R.V. RAVEENDRAN,A.K. PATNAIK, , ,
Case number: Crl.A. No.-001126-001126 / 2011
Diary number: 12358 / 2008
Advocates: SANJAY JAIN Vs
RAKHI RAY
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1126 of 2011 (Arising out of S.L.P. (Crl.) No. 3391 of 2008)
Dharmatma Singh …… Appellant
Versus
Harminder Singh & Ors. …… Respondents
J U D G M E N T
A. K. PATNAIK, J.
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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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:
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“ … 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
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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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