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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
AJAY MOHAN GOEL, J.
Rekha Devi and another – Appellant
Versus
State of Himachal Pradesh and another - Respondents
CRMMO No.750 of 2022 a/w CRMMO No.545 of 2021
Decided on : 23-05-2023
Code of Criminal Procedure, 1973 - Section 482, 107 and 151 - Constitution of India, 1950 - Article 227 - Indian Penal Code, 1860 - Sections 149, 504, 506, 427, 447, 451 and 452 read with Section 34 - Quashing of FIR - Criminal intimidation - Criminal trespass - Whether the allegations are correct or incorrect but this much observation this Court would like to make that the allegations contained in the subsequent private complaint and the FIR were nowhere mentioned in the original complaint - There is sufficient ground for proceeding against the accused, even in these circumstances, the High Court can exercise its powers under Section 482 of the Code of Criminal Procedure (Para 15).
Finding of the Court :
Hon’ble Supreme Court, if one peruses order passed by learned Trial Court, the only conclusion which can be drawn is that the order of summoning which has been passed by learned Judicial Magistrate First Class, Joginder Nagar, is prima facie bad in the eyes of law as no reasons stand assigned therein while coming to the conclusion that there is a prima facie case against the accused. All that is recorded in the order is that after perusal of the challan and documents attached as the Court finds that there are sufficient grounds to proceed against the accused, therefore, let accused be summoned for Neither the order depicts any due application of mind as to whether sufficient grounds for proceeding against the accused existed or not, nor there is any explanation contained in the order from which it could be ascertained as to what weighed with the learned Judicial Magistrate when learned Magistrate formed the opinion that there are sufficient grounds to proceed against the accused.
Result: Ordered accordingly.
JUDGMENT :
Ajay Mohan Goel, J.
As common questions of law and fact are involved in both these petitions, the same are being disposed of by way of a common judgment. For ready reference, documents and Annexures appended with Cr.MMO No. 750 of 2022 are being referred to.
2. By way of these petitions filed under Section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India, the petitioners have inter alia prayed for quashing of FIR registered against them, copy whereof is on record at page 21 of the paper book i.e. FIR No. 10 of 2021, dated 16.01.2021, registered at Police Station Joginder Nagar, District Mandi, H.P. under Sections 451, 447, 427, 504, 506 read with Section 34 of the Indian Penal Code, on the ground that the FIR against the petitioners is per se not maintainable as the initial complaint which was filed by the complainant qua the occurrence of the alleged offence neither named all the petitioners nor there was any remote reference therein to the petitioners and inclusion of the name of the petitioners in the private complaint subsequently as also in the FIR is nothing but an afterthought and on this count alone, the FIR has to be quashed. Issuance of process of summoning by the learned Trial Court stands assailed on the ground that the impugned order sans any reason.
3. Facts necessary for the adjudication of the present petitions are that a complaint was made by the private respondent Sh. Swaran Kumar, dated 19.07.2020, to the In-charge, Police Post Bassi, Tehsil Joginder Nagar, District Mandi, H.P., copy whereof is on record at page 66 of the paper book, in which it was alleged that the complainant was a resident of village Algawari, Post Office Bhararu, Tehsil Joginder Nagar, and on the fateful day, i.e. 19th July, 2020, at around 10:00 a.m. Sh. Birbal Bharmouria, forcefully dismantled the wall of the complainant with regard to which demarcation stood conducted in the month of June, in which demarcation, the wall was found to be correctly constructed. In terms of the complaint, a fresh demarcation was conducted on 15th July, 2020, in which, some part of the wall was found to be falling to the share of Birbal Bharmouria and the same was acceptable to the complainant but Birbal Bharmouria did not concur with the said demarcation. It was further mentioned in the complaint that on 19.07.2020, at around 10:00 a.m. the wall was forcefully dismantled and the complainant was threatened that he may go to police or revenue officers. It was further mentioned in the complaint that the complainant was being harassed mentally, as earlier also, a part of his gate was unlawfully dismantled and a false case was being threatened to be lodged against his son. Further, the entire family of Birbal Bharmouria was threatening to do away with the life of the complainant.
4. Record demonstrates that the investigation was carried out by the police and the effort made by the police was recorded in the rojnamcha of the same day, dated 19.07.2020. It appears that as the complainant was not satisfied with the investigation, he preferred a private complaint in the Court of learned Judicial Magistrate 1st Class, Joginder Nagar, under Sections 149, 504, 506, 427, 447, 451 and 452 of the Indian Penal Code, a copy of which is on record at page 25 of the paper book.
5. Incidentally, in this private complaint, now there were additional accused named and two photographers/ videographers, whose identities were not known to the complainant, were also arrayed as respondents/accused. In the complaint, it was alleged that the complainant had retired as an Honorary Captain from the Indian Army and constructed his house in village Algawari, Tehsil Joginder Nagar, District Mandi, and adjacent to his house, there was the house of accused No.1. As per complainant, he constructed his house in the year 1988 whereas accused No.1 constructed his house in the year 1995. It was further mentioned in the complaint that a wall stood constr
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