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MADHYA PRADESH HIGH COURT
B.D. Rathi, J.
Asharam Bapu v. Aman Singh Dangi and others
Miscellaneous Criminal Case No.6347 of 2013 (Gwalior) : against order dated 19.6.2013, passed by Judicial Magistrate First Class, Vidisha in R.T. No.1032 of 2013; Decided on 12.9.2014.
Learned counsel for the respondent No.1 submitted that the present petition is not maintainable and on this ground alone petition is liable to be dismissed.
Held : A bare reading of the above provision indicates that the Legislature intentionally worded this provision widely and, thus, necessarily in order to prevent abuse of the process of any Court or otherwise to secure ends of justice, appropriate order can be issued by this Court under inherent powers vested under section 482 of CrPC and the petitions therefore are maintainable for seeking such kind of reliefs. Only on the ground of non-availing of remedy provided for filing criminal revision would not create obstruction in the way of filing such petitions under section 482 of CrPC.
Therefore, the contention of the learned counsel for the respondent No.1 about tenability of the petition is not acceptable and is hereby rejected. (2009)2 SCC 370 followed. 2005 SCC (Cri.) 242, AIR 2004 SC 4674, AIR 1992 SC 2206, AIR 1978 SC 47, AIR 2012 SC 700, AIR 2014 SC 655, (2013)1 SCC (Cri.) 493 and (2013)7 SCC 789 discussed.
(2) Penal Code, 1860 -- S.294 -- Criminal P.C., 1973 -- Ss.200, 202 and 204 -- private complaint for offence under section 294 -- about abuses -- nowhere mention in both complaints before police -- in statement also not stated about it -- some inconsistencies in statement of complainant and his witnesses -- three days belated complaint -- no explanation given -- mere utterances of some abuses -- no offence made out.
Held : The facts of the complaint addressed to the SHO of police station Vidisha, dated 7.2.2013, it is emphatically clear that nowhere it was mentioned by the complainant that he was abused by the accused. Thereafter, when no action was taken by the police, second complaint dated 20.3.2013 addressing to the Superintendent of Police, Vidisha was sent by the complainant. This time also nowhere it was mentioned by the complainant that he was abused by the accused. Then after near about three months on 25.4.2013, written complaint was filed in the Court of Judicial Magistrate First Class, Vidisha. In para 2 of the complaint, the allegations were made showing that in what manner the complainant was abused.
Same allegations were also made by the complainant and his witnesses, though with certain inconsistencies, in their statements recorded under sections 200 and 202 of CrPC, but therein nowhere it was stated by the complainant that due to aforesaid abusive words, he became annoyed. Therefore, mere utterances of some abuses are not sufficient to constitute an offence under section 294 of IPC .... Apart that, explanation was not given by the complainant that why the written complaint was made belatedly after a period of three days, i.e., on 7.2.2013 when incident occurred on 4.2.2013. Shrinath Awasthy (PW2) and Vikram Singh Danti (PW3) have not stated anything that after hearing the abusive words, they have got or anybody has got annoyed. In the aforesaid premises, in the considered opinion of this Court, no offence is made out under section 294 of IPC, against the petitioner. 1962 JLJ SN 135 and 1997(II) MPWN 224 relied on.
(3) Penal Code, 1860 -- Ss.323 and 81 -- offence under -- when not made out -- in touching feet -- blow with kick on head of complainant -- no criminal intention inflicted to accused -- offence not made out against accused.
Held : There was no intention on the part of the accused to kick on the head of the complainant because at the place which was completely filled with large group of persons it was practically impossible for the accused to move and see the particular person who has touched his feet and in that event if he waved his feet aside, it will not mean that intentionally the accused had given the blow with a kick on the head of the complainant. In the opinion of this court, such action of the accused, even if the entire facts of the complaint are considered to be true, even then no case is made out against the accused in the light of provisions of section 81 of IPC.
[Para 21
On perusal of definition employed in section 81 of IPC, it makes it clear that the act likely to cause harm but done without criminal intention and to prevent other harm is not an offence. Here in this case also, there was no criminal intention inflicted to the accused and if the blow of kick was received by the complainant on his head that may be in a case when the accused was going towards his car from the midst of the huge public and then all of a sudden when he felt that he was obstructed by someone else with touching his feet and if he waved his feet aside which unknowingly hit the head of the complainant, in the opinion of this Court, such act cannot be treated to be an act in view of the provisions of section 81of IPC. AIR 1950 All. 95 referred to.
(4) Criminal P.C., 1973 -- Ss.482, 200, 202 and 204 -- Penal Code, 1860 -- Ss.323, 294 and 95 -- private complaint -- charges framed for offence under sections 323 and 294 -- nature of injury -- slight -- allegations made in complaint and statement -- petty and trivial -- background of complainant -- criminal -- he not came before Court with clean hands -- no proceedings could be taken in view of provisions of section 95 -- taking cognizance against accused-petitioner set aside. AIR 1977 SC 2432, AIR 1966 SC 1773 and AIR 1927 Rangoon 43 referred to. [Paras 24 to 27
¼1½ naM+ izfØ;k lafgrk] 1973 && /kkjk 482 && ‘kfDr;ks dh O;kfIr && mica/k ds v/khu vthZ && dk pykus ;ksX; gksuk && iqujh{k.k dk vuqdYih mipkj miyH; && ,slk mipkj varfuZfgr ‘kfDr;ksa ds iz;ksx djus ds fy, dksbZ otZu ugh && vthZ pykus ;ksX; gSA izR;FkhZ Ø-1 dh vksj ls fo}ku dkmUlsy us fuosnu fd;k fd ;g vthZ pykus ;ksX; ugh gS vkSj ,dek= blh vk/kkj ij vthZ [kkfjt fd, tkus ;ksX; gSA ¼iSjk 4
vfHkfu/kkZfjr % dsoy mi;qZDr mica/k ds i<+us ls gh minf’kZr gksrk gS fd fo/kku&eaM+y us ;g mica/k O;kid :i ls lk’k; ‘kCnksa es O;Dr fd;k gS vkSj] bl izdkj] fdlh U;k;ky; dh dk;Zokgh dk nq:i;ksx fuokfjr djus ds vuqØe esa ;k vU; izdkj ls U;k; ds mn~ns’;ksa dh izkfIr lqfuf’pr djus ds fy, vko’;drk gks] naM izfØ;k lafgrk dh /kkjk 482 ds v/khu fufgr varfuZfgr ‘kfDr;ksa ds v/khu bl U;k;ky; }kjk leqfpr vkns’k tkjh fd;k tk ldrk gS vkSj ,slk vuqrks”k pkgus ds fy, vftZ;k¡ pyus ;ksX; gSaA dsoy nkafM+d dsoy nkafMd iqujh{k.k izLrqr djus ds fy, micaf/kr mipkj miyH; u djus dk vk/kkj naM+ izfØ;k lafgrk dh /kkjk 482 ds v/khu ,slh vftZ;k¡ izLRkqr djus es dksbZ ck/kk l`ftr ugh dj ldsxkA
blfy, izR;FkhZ Ø-1 dh vksj ls fo}ku dkmUlsy dk vthZ ds pyus ds fo”k; esa fd;k x;k fuosnu Lohdkj ;ksX; ugh gS vkSj ,rn~}kjk vLohd`r fd;k tkrk gSA ¼2009½2 ,l lh lh 370 vuqlfjrA 2005 ,l lh lh fØ- 242] , vkb vkj 2004 ,l lh 4674] , vkb vkj 1992 ,l lh 2206] , vkb vkj 1978 ,l lh 47] , vkb vkj 2012 ,l lh 700] , vkb vkj 2014 ,l lh 655] ¼2013½1 ,l lh lh ¼fØ-½ 493 rFkk ¼2013½7 ,l lh lh 789 foosfprA ¼IkSjk 12
¼2½ naM+ lafgrk] 1860 && /kkjk 294 && naM izfØ;k lafgrk] 1973 && /kkjk 200] 202 rFkk 204 && /kkjk 294 ds v/khu vijk/k ds fy, izkbosV ifjokn && xkyh&xykSt ds fo”k; esa && iqfyl ds le{k nksuksa f’kdk;rksa es dgha mYys[k ugh && dFkuks es Hkh bl fo”k; es dFku ugh fd;k x;k && ifjoknh rFkk mlds lkf{k;ksa ds dFkuksa es dqN folaxfr;k¡ && ifjokn rhu fnol foyafcr && dksbZ Li”Vhdj.k ugh fn;k x;k && dsoy FkksM+h lh dqN xkyh&xykSt && vijk/k ugh curkA
vfHkfu/kkZfjr % fnuakd 7-2-2013] iqfyl Fkkuk fofn’kk ds Fkkuk vf/kdkjh dks lacksf/kr f’kdk;r ds rF;ks ls] lqLi”Vr;k Li”V gS fd ifjoknh }kjk dgha Hkh ;g mYys[k ugh fd;k Fkk fd mlls vfHk;qDr }kjk xkyh&xykSt fd;k x;k FkkA rRi’pkr~ tc iqfyl }kjk dksbZ dk;Zokgh ugh dh xbZ] ifjoknh }kjk f}rh; f’kdk;r fnukad 20-3-2013 iqfyl v/kh{kd] fofn’kk dks lacksf/kr dj Hksth xbZ FkhA bl le; Hkh ifjoknh }kjk ;g dgha mYys[k ugha fd;k x;k fd vfHk;qDr }kjk mlls xkyh&xykSt fd;k x;k FkkA rc fnukad 25-4-2013 dks yxHkx rhu ekl i’pkr~ izFke oxZ eftLVsªV] fofn’kk ds U;k;ky; esa fyf[kr ifjokn IkzLRkqr fd;k x;k FkkA ifjokn ds iSjk 2 es] fd, x, vfHkdFku n’kkZrs gSa fd fdl izdkj ifjoknh ls xkyh&xykSt fd;k x;k FkkA
ifjoknh rFkk mlds lkf{k;ksa }kjk Hkh vfHkdFku fd, x, Fks] ;|fr dfri; valxfr;ksa ds lkFk] naM+ izfØ;k lafgrk dh /kkjk 200 rFkk 202 ds v/khu muds vfHkfyf[kr dFkuksa esa] fdaRkq ifjoknh }kjk muesa dgha Hkh ;g ugh dgk x;k Fkk fd mi;qZDr xkyh&xykSt ls] og {kqC/k gks x;kA blfy,] dsoy ek= FkksM+h lh xkyh&xykSt Hkkjrh; naM+ lafgrk dh /kkjk 294 ds v/khu vijk/k xfBr djus ds fy, i;kZIr ugh gSA ------blds vfrfjDr] ifjoknh }kjk Li”Vhdj.k ugh fn;k x;k fd fyf[kr f’kdk;u rhu fnol dh dkykof/k ds i’pkr~ foyafcr D;ksa dh xbZ Fkh] vFkkZr~ 7-2-2013 dks tcfd ?kVuk 4-2-2013 dks ?kfVr gqbZ FkhA JhukFk voLFkh ¼v-lk-2½ vkSj foØeflag nkarh ¼v-lk- 3½ us dqN Hkh ugh dgk gS fd xkyh&xykSt lquus ds i’pkr~ os ;k dksbZ O;fDr {kqC/k gks tkrkA mi;qZDr vkeq[k es] bl U;k;ky; dh lqfopkfjr jk; es] vthZnkj ds fo:} Hkkjrh; naM+ dh /kkjk 294 ds v/khu vijk/k ugh curkA 1962 ts ,y ts ,l ,u 135 rFkk 1997¼2½ e-iz- ohDyh uksV~Lk 224 voyafcrA
¼3½ naM+ lafgrk] 1860 && /kkjk 323 rFkk 81 && mica/k ds v/khu vijk/k && dc ugh curk && iSj Nwus esa && f’kdk;rdrkZ ds flj ij ykr ls vk/kkj && vfHk;qDr dk vkijkf/kd vk’k; ugha && vfHk;qDr ds fo:) vijk/k ugh curkA
vfHkfu/kkZfjr % vfHk;qDr dh vksj ls ifjoknh ds flj ij ykr ekjus dk vk’k; ugh Fkk D;ksafd LFkku tks O;fDr;ksa ds vf/kd leqnk; ls iw.kZr% Hkjk Fkk vfHk;qDr dks pyuk vkSj fo’ks”k O;fDr tks mlds iSj Nw jgk gS bls ns[kuk fo’ks”k :i ls vlaHko Fkk vkSj ,slh n’kk es ;fn og vius iSj ,d vkSj fgykrk&Mqykrk gS] blls ;g vfHkizsr ugh gksxk fd vfHk;qDr us ifjoknh ds flj ij lk’k; ikn izgkj ls vk?kkr fd;k gSA bLk U;k;ky; dh jk; es] ;fn ifjokn ds leLr rF; lR; gksrs Hkh fopkfjr gS rc Hkh Hkkjrh; naM+ lafgrk dh /kkjk 81 ds mica/kks ds vfHk;qDr ds fo:) vijk/k ugh curk gSA
Hkkjrh; naM+ lafgrk dh /kkjk 81 esa fu;ksftr ifjHkk”kk ds voyksdu ls ;g Li”V gksrk gS fd dk;Z ls vigkfu igq¡pkuk laHkkO; fdarq fcuk vkijkf/kd vk’k; ls vkSj vU; vigkfu fuokj.k ds fy, fd;k x;k ,d vijk/k ugh gSA ;gk¡ bl izdj.k es Hkh] vfHk;qDr dk vkijkf/kd mn~ns’; gksuk ugh Fkk vkSj ;fn f’kdk;rdrkZ ds flj ij ykr ls /kDdk yxk Fkk ;g ,slh fLFkfr es gks ldrk gS tcfd vfHk;qDr vR;f/kd vke&turk ds chp ls viuh dkj dh vksj tk jgk Fkk vkSj ;fn og vius iSj ,d vkSj fgykrk&Mqykrk gS ftlls fcuk tkudkjh ds f’kdk;rdrkZ ds flj ij pksV igq¡ph] bl U;k;ky; dh jk; esa] ,slk dk;Z Hkkjrh; naM lafgrk dh /kkjk 81 ds mica/kks dh n`f”V es dk;Z gksuk ugh ekuk tk ldrkA , vkb vkj 1950 byk- 95 fufnZ”VA
¼4½ naM+ izfØ;k lafgrk] 1973 && /kkjk 482] 200] 202 rFkk 204 && naM lafgrk] 1860 && /kkjk 323] 294 rFkk 95 && izkbosV ifjokn && /kkjk 323 rFkk 294 ds v/khu vijk/k ds fy, vkjksi fojfpr && {kfr dh izd`fr && lkekU; &&ifjokn rFkk dFkuksa es fd, x, vfHkdFku && ux.; vkSj rqPN && ifjoknh dh Hkwfedk && vkijkf/kd && og U;k;ky; ds le{k LoPN gkFkksa ls ugh vk;k && /kkjk 95 ds n`f”Vdks.k ls dk;Zokgh ugh dh tk ldrh Fkh && vfHk;qDr&vthZnkj ds fo:} fy;k tk jgk laKku vikLr fd;k x;kA , vkb vkj 1977 ,l lh 2432] , vkb vkj 1966 ,l lh 1773 rFkk , vkb vkj 1927 jaxwu 43 fufnZ”VA ¼IkSjk 24 ls 27
1. The present petition preferred under section 482 of CrPC is directed against an order dated 19.6.2013 passed by the Judicial Magistrate First Class, Vidisha (M.P.) in R.T. No.1032/13, taking cognizance against the accused-petitioner for commission of offence punishable under sections 294 and 323 of IPC.
2. The facts, in nutshell, just necessary for the decision of this petition are that complainant Aman Singh s/o late Shri Amol Singh Dangi filed a private complaint against the present petitioner in the Court of Judicial Magistrate First Class, Vidisha to register of offence under section 323, 294, 298 and 500 of IPC. It is mentioned by him that that on 4.2.2013, at the ground of Meda Mill, Civil Lines Vidisha, there was a religious programme arranged by the followers of the petitioner. In the said function, number of persons gathered to listen the lecture of the petitioner. The complainant with his friends also reached and attended the function. At around 10 O’clock, in night, when the function was over and the petitioner was likely to get down from the stage for sitting in the vehicle, the complainant went towards him and when he tried to touch the feet, the petitioner kicked him after abusing and thereafter proceeded in the vehicle. The complainant fell down and the persons collected nearby lifted him up to his house. Due to such an incident, the complainant suffered mental agony and was also made subject to social indignity. The whole episode was cached by the media and later on flashed in the daily news magazines. On 7.2.2013, the complainant went to police station civil lines and submitted a written complaint for taking legal action in the matter, marked as Annexure-P-2. Thereafter, he again made a complaint as per Annexure P-3, dated 20.3.2013 in writing to the concerning S.P. of the district but when no action was taken by the police authority, he had to file a private complaint in the court. After recording and analyzing the statements of the complainant and his witnesses under section 200 and 202 of CrPC, the Court prima facie found commission of offence under sections 294 and 323 of IPC, hence, secured the present of the petitioner through issuing summons by registered A/D under the order impugned. Being aggrieved by the said order, the present petition has been filed.
3. Learned counsel for the petitioner argued that in view of the allegations made in the complaint as well as the statements recorded under sections 200 and 202 of CrPC of the complainant and his witnesses, prima facie, no case is made out against the petitioners for offence under sections 294 and 323 of IPC. It is further submitted that the incident in this case as per complainant occurred on 4.2.2013 and after a period of three days, he approached the police authority, which shows that the complaint was made with some ulterior motive and some oblique motive in order to gain the publicity. Further in the written complaints made to the police vide Annexures P-2 and P-3, the complainant has not mentioned about using abusive language by the petitioner against him. On the contrary, it is submitted that the complainant is having a criminal background. The documents marked as Annexures P-8, P-9 and P-10 have been filed on record and were referred in support during the course of hearing. In view the aforesaid premised arguments, it is prayed that the order passed by the trial Magistrate is not sustainable in law and deserves to be quashed.
4. At the outset, learned counsel for the respondent No.1 submitted that the present petition is not maintainable and on this ground alone petition is liable to be dismissed.
5. The second ground raised by the counsel is that at the time of taking cognizance only prima facie case has to be seen rather than looking to the minor contradictions and omissions crept in the statements of the complainant and his witnesses. It is submitted by the counsel that the complaint made in this case shows the ingredients of the offence
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