Krishan Chander Azad vs State of Punjab

T.H.B. Chalapathi, J.

This petition is filed to quash the FIR No. 96 dated 24.11.1993 and the consequential challan in the Court of the learned Sub Divisional Judicial Magistrate, Phagwara, on 10.7.1995 for the offences under Sections 186/188/332/354/506/148/149 IPC.

On 3.3.1993, a seminar was held at Phagwara on the subject of `Bride Burning''. To attend the seminar as Chief guest, the DIG, Jalandhar range, came to Phagwara. The petitioners who are Advocates along with some other residents of the town wanted to meet DIG to apprise him the corrupt practices of the local police but they were not allowed to meet the DIG by them which led to a Dharna being staged by the persons aggrieved outside the premises where the seminar was held. The DIG after hearing the commotion allowed some people to come in. The petitioners and some others informed the DIG about the misdeeds of the police offers, stationed at Phagwara. On 6.9.1993 when the DIG again visited the place, the petitioners 1 and 2 who were Advocates also brought to his notice the activities of the Police Officers. Because of this, according to the petitioners, the police officers at Phagwara became hostile to the petitioners and are bent upon to implicate them in some case.

On 23.11.1993, the police officers of Police Station Phagwara misbehaved with a rickshawpuller and he was beaten. The cause of rickshawpuller was taken up by the Members of the Municipal Council, Phagwara but the police refused to take any action. On this a Dharna was staged outside the police station Phagwara. At that time the police attacked the persons who were staging a peaceful dharna. A lathi charge was also resorted to by the police. In that lathi charge several people including the ladies were beaten by the police. Thereafter proceedings under Sections 107/151 of the Code of Criminal Procedure were initiated against the several people including the petitioners. The Judicial Magistrate released the petitioners on bail. It is on record that order under section 144 Code of Criminal Procedure has been promulgated in locality on 25.11.1993. For violating the order under section 144, the police sought the permission of the District Magistrate to prosecute the petitioners and others for offence under section 188 Indian Penal Code, but the District Magistrate refused permission. The police also registered a case against the petitioners and others for the offences under Sections 186/188/353/332/506/148/149 I.P.C. on 29.5.1995. They also presented a challan before the Sub Divisional Judicial Magistrate Phagwara. To quash the same, the petitioner approached this Court under section 482 Code of Criminal Procedure. The same is opposed by the State.

There cannot be any dispute that challan once presented cannot be quashed unless it is shown that the averments in the challan are false or so absurd and do not constitute any offence. For the purpose of showing that the challan is not based on the factual position and it has been presented with an intention of taking revenge against the petitioners and others, learned Counsel for the petitioners relied upon an enquiry report conducted by the Executive Magistrate and the report of a senior police officer and the order passed by the District Magistrate refusing permission to prosecute the petitioners for the offence under Section 188 IPC for violation of order promulgated under Section 144 IPC.

Exhibit P7 is the order of the District Magistrate Kapurthala refusing permission to make a complaint under the provisions of Section 144 IPC. In a detailed order, after perusing the reports of the Executing Magistrate and the Superintendent of Police Crime who is a senior police officer, the District Magistrate opined as follows :

"From both the independent reports, it becomes clear that K.C. Azad and 19 others who had been booked were quite peaceful and they did not cause any obstruction or injury to any person including the police officials. In both the reports, the demonstrators have been shown to be peaceful. In fact police has been blamed for lathi charge and rearrest under sections 107/151 Cr.P.C. In these circumstances no purpose will be served by making a complaint under Section 195 Cr.P.C."

Exhibit P7 is the report of the Executive Magistrate, according to which "he was present on the spot and neither any violation of DSP Kapurthala''s order took place nor was order under section 144 violated nor was there any obstruction of traffic in front of the police station. The traffic on the road remained normal. Nobody caused an injury to any policeman. Nobody grappled or fought with the police. In fact the police lathi charged the public which had come at the spot without any reason and arrested them after registering a FIR against them. On 24.11.1993, 19 person were granted bail by S.D.M. Phagwara and they were released but the police rearrested 17 of them and Kusum Sharma under Section 107/151 and the next day, they were produced before him and they were granted bail and released as per law as the arrested persons were respected leaders, advocates and leaders of Labour Unions". He further concluded that it is established that police has taken action against petitioners and others in pursuance of personal grudge, even though there was no reason to take action against them. In spite of the result of the enquiry conducted by the Executive Magistrate and also Superintendent of Police Crime, the police filed the charge sheet against the petitioners and others.

According to the learned Public Prosecutor, the challan contained specific allegations against the petitioners and others to the effect that movement of the traffic was disturbed because of the assembly on the road and the petitioners and others instigated blocking the traffic and attacked the police personnel and torn the uniform of Head Contable Manjit Singh and he further argued that the allegations contained in the challan clearly show that there is violation of the order promulgated under Sction 144 IPC and obstruction in the performance of duties of Govt. servants and also criminal assault on govt. officers and threatening to kill Head Constable. But the learned Public Prosecutor failed to produce any material in support of averments made in the chargesheet. No medical certificate has been enclosed alongwith the challan to show any of the Police Officers sustained any injuries. There is also no averment in the entire chargesheet that any of the police officers was medically examined to show that any injury was caused to them.

The facts clearly show that there was demonstration in front of the police station. Rickshaw puller of the town was beaten by the police and there was refusal of the police to register case against the erring police concerned. The report of Executive Magistrate as well as the report of Superintenndent of Police (Crime) clearly show that the demonstration was peaceful and there was no obstruction neither to the traffic nor there was any untoward incident resorted to by the persons gathered at one the spot. Inquiry report of the Executive Magistrate and also the report of Superintendent of Police (Crime) further show that the police resorted to lathi charge without there being any provocation. Thus it is clear from the report of Superintendent of Police (Crime) itself that the lathi charge was unwarranted and unjustified. When there is a lathi charge, there may be some scuffle between the mob gathered and the police officials. In none of the reports of Executive Magistrate or the Superintendent of Police (Crime) it has been mentioned that any police official has been injured. On the other hand, there is specific finding given by both of them that no police official was injured. Therefore, the very basis of the factual foundation in the charge sheet will not hold water. There is also no dispute of the fact that on the earlier occasion, when the DIG visited Phagwara the members of the Local Bar alongwith some other persons of the locality made complaint against the police officers including the Dy. Superintendent of Police stationed at Phagwara. Therefore, the irresistible conclusion one can arrive at on the basis of the materials in that the charge sheet is the result of the vindictive attitude on the part of the police and the contents of the chargesheet are falsified by the report of the Executive Magistrate and the Superintendent of Police (Crime). The allegations in the chargesheet are nothing but flash allegations. This Court in exercise of the powers under section 482 Criminal Procedure Code can quash the same. In this context, a reference may be made to the decision in Emperor v. Khwaja Nazir Ahmad, AIR 1945(32) P.C. 18. The same view was taken by the Supreme Court in State of Haryana v. Bhajan Lal and others, AIR 1992 SC 604 : 1991(1) RCR(Crl.) 383 (SC) .

For the aforesaid reasons, I am of the view that the chargesheet is liable to be quashed and FIR 96 dated 24.11.1993 and the subsequent charge sheet presented in the Court of learned Sub Divisional Magistrate, Phagwara in teh said FIR are liable to be quashed. Petition is accordingly allowed.