Dharmatma Singh vs Harminder Singh & Ors

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

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(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

8

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

10

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

13

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

17

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:

18 " ... 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.