KHAN, J. - (1.) THIS is petition under Section 482 Cr. R. C. requesting this court to quash the order dated August, 5,1995 where by the Additional Chief Judicial Magistrate No. 7, Jaipur City, Jaipur took cognisance of the offence under Section 324 I. P. C. against the petitioner in Criminal Case No. 30/86.
(2.) THE relevant facts are:- That on December, 30,1985, P. W. Ram Gopal had lodged a report with police station, Jhotwara, Jaipur with the allegation that, on that day one Chandmal Sharma and his sons Sarva Shri Prabhu Dayal and Dindayal (petitioner) and Shyam Dayal assaulted him with lathies. On this report, the police submitted a charge-sheet in 15. 3. 1986 against Shyam Dayal only for the commission of on offence under Section 323 and 324 IPC. The concerned Magistrate took cognizance of the offence against the said accused accordingly. It is an undisputed fact that the last witness viz Medical Jurist N. C. Vyas was examined on April 26, 1995. Thereafter on May 26,1995, the A. P. P. attached to the court of the learned trial court moved an application under Section 319 Cr. P. C. requesting the learned Magistrate to take cognizance of the offence under Section 324 IPC. as against Shri Dindayal petitioner. By his impugned order dated August, 5,1995, the learned Magistrate took cognizance of the offence under Section 324 I. P. C. against the peti- tioner. It was vehmently urged by the learned counsel for the petitioner that in the present case there was a clear abuse of the process of the Court in as much as that the occurance took place in the year 1985, charge-sheet was submitted within 3 months of the occurance and since then Shyam Dayal, the brother of the present petitioner, was being prosecuted. It was only after a lapse of almost a decade, that the prosecution evidence had came to an end in the trial against Shri Shyam Dayal. The application dated May, 26,1995 was moved by the APP only to harass the petitioner and his family. It was submitted that on the face of it, the act of the learned APP was malafide and the impugned order as passed by the learned Magistrate amounts to abuse of the process of this Court. The learned counsel referred to the provisions of Section, 465 (2) Cr. P. C. as also to the case of State of Haryana vs. Bhajan Lal (1) and Rupal Devi Bajaj vs. K. P. S. Gill (2) wherein principle governing the exercise of powers of this court under Section 482 Cr. P. C. were elucidated and explained. It was submitted that e present, case is a glaring instance of abuse of not only the machinery of law but also the process of the court of the learned Magistrate. The learned counsel, therefore submitted that This Court should exercise its powers under Sec- tion 482 Cr. P. C. and quash the order under consideration. The learned Public Prosecutor opposing the petition Vehemently urged that the powers under section 482 Cr. P. C. are required to be sparingly exercised in rarest of rare cases where it is necessary to prevent the abuse of the process of the Court and to secure the ends of justice. The learned Public Prosecutor further submitted that it was true that in the present case cognizance against the present petitioner was taken by the learned Magistrate after a lapse of almost a decade, but that by itself should be no ground to quash the proceedings pending against the petitioner in the court of learned Magistrate. When the attention of learned Public Prosecutor was invited to the fact that at the time of submitting the charge-sheet in the case the same evidence which was considered sufficient for taking cognizance of the offence under Section 324 IPC against the present petitioner, was already there in the documents submitted by the police under Section 173 Cr. P. C. before the learned Magistrate, but at that time neither the learned Addl. Public Prosecutor nor the private person against whom the offence have been alleged to have been committed, requested the Magistrate to take cognizance of the offence against the present petitioner also, the learned Public Prosecutor was fair enough to state `that the petition deserves to be decided o n it's own merit. After having given my thoughtful consideration to the arguments advanced before me on behalf of both the parties, I do not feel happy to observe that in this case, the order under consideration resulted in miscarriage of justice and amounts to the abuse of the process of the Court. The undisputed facts clearly go to show that the alleged occurance had taken place on December, 30th, 1985 and a charge-sheet was submitted as back as on February 28, 1986. It was a composit charge-sheet in as much as it was a positive report in so far as Shyam Dayal accused was concerned, but it was a negative report in so far as Chandmal and his two sons Prabhu Dayal and Dindayal (the petitioner) were concerned. At that time, the Public Pro- secutor could have asked that learned Magistrate to take cognizance under Section 190 (b) Cr. P. C. against the persons who had not been charge-sheeted by the police. Even the injured person could have moved a protest petition or even complaint could have made for the said purpose. That was certainly an act of commission on the part of the prosecution. Not only that, the trial against Shyam Dayal continued upto April 26,1995 i. e. almost for a decade and it was thereafter that the Public Prosecutor thought it proper to move an application under Section 319 Cr. P. C. requesting for summoning of present petitioner as a co-accused in this case, Thus, reversing the motion of the wheel of the trial. The consequence of the order under consideration would necessarily be that all the witnesses examined in this case shall have to be examined again and that they still take another 10 Years. Even thereafter a Public Prosecutor may chose to move another application under Section 319 against yet another person Prabhu Dayal and Chandmal who have been named in the FIR as also in the statement recorded under Section 161 Cr. P. C. That shows the present application was quite malafide and moved with the ulterior intention of harassing a person against whom such application could have been moved as back as in the year 1986 when the charge-sheet had been submitted before the learned Magistrate. There is no doubt that Section 319 Cr. P. C. empowers a Magistrate to take cognizance of an offence against such person who is not an accused in the case and who appears or does not appear in the course of the proceedings but who is found to be involved in the commission of a crime for which other persons are being tried before him. But the Magistrate is expected to consider as to when and under what circumstances he was going to exercise the powers vested in him by law. It is the only judicial exercise of such powers to which law affords its recognition and not any arbitrary exercise of such powers which may result in harassing an innocent person. It is for that reason that the powers under Section 310 are required to be very sparingly exercised in most deserving cases. It is not to be exercised for harassing the other persons who might be having some connection or relations with the persons on trial. It is in that spirit that the mandate contained in Section 465 (2) Cr. P. C. , is required to be kept in mind. Considering the said provision of Section 465, the mandates envisages that objections against the acts of omission and commissions, error or irregularities in any proceedings under the court should be taken at the earlier stage of the proceedings. The said provision clearly casts a duty upon the concerned person to see that such objections have been raised at the earliest stage of the proceedings. In the instant case, the learned Public Pro- cecutor was fair enough to state that an objection, against non-chargesheeting the petitioner could certainly have been taken as early as on February, 28,1986 when the position of the evidence which could have been considered at that stage of the proceedings, was almost the same which was there before the learned Magistrate, at the time of passing the order under consi- deration on August 5, 1995. All these facts and circumstances, which are clearly borne out of the proceedings of the case and have fairly been accepted by the learned Public Prosecutor before this Court clearly speak that the act of the learned Public Prosecutor in moving the application against the petitioner under Section 319 Cr. P. C. was malafide and the order passed by the learned Magistrate of taking cognizance of the offence under Section 324 IPC against the present petitioner was not only bad in law, but also amounts to clear abuse of the process of the Court. Inorder to maintain the sanctity of the process of the court and to mitigate against the perpetual in justice being caused to the petitioner it is necessary for this Court in the ends of justice to invoke its extra-ordinary and exceptional jurisdiction under Section 482 Cr. P. C. and quash the order dated 5th August, 1995 passed by the Additional Chief Judicial Magistrate No7, Jaipur City, Jaipur.
(3.) THE conclusions arrived at above, I think are endorsed by the guidelines laid down by the Hon'ble Supreme Court in cases of State of Haryana vs. Bhajan Lal (Supra) and R. D. Bajaj vs. K. P. S. Gill (Supra ). In the first of the cases referred to above, their Lordships of Hon'ble Supreme Court had laid down the following guidelines for the exercise of powers conferred upon this Court under Section 482 Cr. P. C. ;- "the question under what circumstances and in what catego- ries of case the High Court can quash an FIR or a complaint in exercise of the powers under Article 226 of the Constitution of India or under Section 482 Cr. P. C. has had been engaging the attention of this Court for long. Indeed the learned counsel for the parties invited our attention to some of those decisions. We need not, however, refer to them as in State of Haryana Vs. Bhajan Lal this Court considered its earlier decisions, including those referred to by the learned counsel and answered the above question as under (See pp-378-79, paras 102 & 103 ). "in the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid for- mulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1 ). Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police Officers under Section 156 (3) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5)Where the allegations made in the FIR or complaint are so absured and inherently improbable on the basis of which no prudunt person can ever reach a just conclusion that there there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genui- neness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice". The law laid down by the Hon'ble Supreme Court in the above referred cases helps this court in exercising it's powers under Section 482 Cr. P. C. for the benefit of the petitioner. ;