Delhi High Court
Tushar Tamang vs State N.C.T. Of Delhi & Anr. on 11 December, 2024
$~115
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 11th December, 2024
+ CRL.M.C. 4174/2022 & CRL.M.A. 17189/2022
TUSHAR TAMANG .....Petitioner
Through: Mr. Ashutosh Bhardwaj
and Ms. Preeti Sharma,
Advocates.
versus
STATE N.C.T. OF DELHI & ANR. .....Respondent
Through: Mr. Rajkumar, APP for the
State with SI Chetan Rana,
PS VK South.
Mr. N. Hariharan, Senior
Advocate (Amicus
Curiae), assisted by Mr.
Kaveesh Nair and Ms.
Punya Rekha Angara,
Advocates.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
AMIT MAHAJAN, J. (Oral)
1. The present petition has been filed, inter alia, seeking
quashing of FIR No. 204/2018 dated 30.04.2018 registered at
Police Station Vasant Kunj for offences under Sections
323/341/509/34 of the Indian Penal Code, 1860 (‘IPC‘), and all
consequential proceedings arising therefrom.
2. The FIR in the present case was registered following a
complaint by the complainant who alleged that on 29.04.2018,
while she was on her way to deliver important RWA papers to
Mr. Abdul Mahood, a Delhi Jal Board employee, she encountered
a confrontation involving the accused persons including the
petitioner. She alleged that she was approached by
CRL.M.C. 4174/2022 Page 1 of 11
Chanderkala/accused, who began beating and verbally abusing
her in the vicinity of B-344, Vasant Kunj. During the alleged
incident, the two sons of the accused, Tushar Tamang (the
present petitioner) and Gyan, joined in the altercation. The
complainant’s driver, Babulal, was also assaulted, and the
accused allegedly took the complainant’s car keys. Furthermore,
it was alleged that Chanderkala tore the complainant’s clothes,
while her sons filmed the alleged incident and threatened to
broadcast the videos on social media to defame her.
3. After the completion of the investigation, charge sheet in
the present case was filed on 18.09.2020 under Sections
323/342/354/354B/509/34 and cognizance was taken qua the
accused persons including the petitioner.
4. The learned counsel for the petitioner submits that the
petitioner was merely a bystander during the alleged incident and
had no involvement in the commission of the offences. He
submits that the charge sheet, as well as the investigation
conducted by the police, failed to consider critical evidence in the
form of CCTV footage, which clearly shows that the petitioner
was not a participant in the altercation.
5. The learned counsel emphasized that the footage would
conclusively establish the petitioner’s innocence, as it depicts
him merely standing by during the event without any
involvement in the crime.
6. He submits that the complainant has failed to allege
specific acts of omission or commission by the petitioner
constituting any offence.
CRL.M.C. 4174/2022 Page 2 of 11
7. The limited question that falls for consideration before this
Court is, firstly, whether the FIR should be quashed on the
grounds that the evidence in the possession of the petitioner
demonstrates his non-involvement in the alleged crime; and
secondly, whether, in the exercise of its inherent powers under
Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC‘),
the High Court can direct further investigation when cognizance
has already been taken by the Magistrate and the charge sheet has
been filed.
8. To address this, it is crucial to examine the scope of
Section 482 of the CrPC and the guiding principles that govern
the exercise of inherent powers by the High Court in ensuring
justice and fairness in criminal proceedings.
9. The first issue for consideration is whether the FIR should
be quashed on the grounds that the petitioner has relied upon the
CCTV footage as evidence showing his non-involvement in the
alleged offence. The petitioner claims that the footage clearly
demonstrates that he was a mere bystander at the scene of the
incident and had no participation in the commission of the crime.
10. The argument of the petitioner is compelling as it directly
challenges his involvement in the case. However, the central
question lies in whether the footage, not having been included in
the chargesheet and its veracity not yet tested by the investigating
agency, is sufficient to quash the FIR at this stage.
11. The law in relation to quashing of the FIR in exercise of
inherent powers is well settled. The Hon’ble Apex Court in the
case of Indian Oil Corporation v. NEPC India Limited and
CRL.M.C. 4174/2022 Page 3 of 11
Others : (2006) 6 SCC 736 has discussed the scope of
jurisdiction under Section 482 of the CrPC. The relevant portion
of the same is reproduced hereunder:
“12. The principles relating to exercise of jurisdiction under
Section 482 of the Code of Criminal Procedure to quash
complaints and criminal proceedings have been stated and
reiterated by this Court in several decisions. To mention a
few–Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri)
234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar
Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]
, Central Bureau of Investigation v. Duncans Agro Industries
Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of
Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC
(Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3
SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals &
Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 :
2000 SCC (Cri) 615] , Hridaya Ranjan Prasad
Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri)
786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002
SCC (Cri) 19] and Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005
SCC (Cri) 283] . The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations
made in 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 the case alleged against
the accused.
For this purpose, the complaint has to be examined as a
whole, but without examining the merits of the allegations.
Neither a detailed inquiry nor a meticulous analysis of the
material nor an assessment of the reliability or genuineness
of the allegations in the complaint, is warranted while
examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear
abuse of the process of the court, as when the criminal
proceeding is found to have been initiated with mala
fides/malice for wreaking vengeance or to cause harm, or
where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to
stifle or scuttle a legitimate prosecution. The power should
be used sparingly and with abundant caution.
CRL.M.C. 4174/2022 Page 4 of 11
(iv) The complaint is not required to verbatim reproduce
the legal ingredients of the offence alleged. If the necessary
factual foundation is laid in the complaint, merely on the
ground that a few ingredients have not been stated in detail,
the proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is so bereft
of even the basic facts which are absolutely necessary for
making out the offence.
(v) A given set of facts may make out: (a) purely a civil
wrong; or (b) purely a criminal offence; or (c) a civil wrong
as also a criminal offence. A commercial transaction or a
contractual dispute, apart from furnishing a cause of action
for seeking remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil proceeding are
different from a criminal proceeding, the mere fact that the
complaint relates to a commercial transaction or breach of
contract, for which a civil remedy is available or has been
availed, is not by itself a ground to quash the criminal
proceedings. The test is whether the allegations in the
complaint disclose a criminal offence or not.”
(emphasis supplied)
12. Section 482 of the CrPC confers the High Court with an
inherent power to quash an FIR or a complaint, upon satisfaction
of well-established parameters. While considering a petition
seeking quashing of an FIR or complaint, the Court must take
into consideration – if the allegations made in the FIR/complaint
taken at face value, prima facie do not constitute any offence or
make out any case against the accused ; if the allegations made in
the FIR do not disclose any cognisable offence, which justifies a
police investigation under Section 156(1) of the CrPC ; if the
allegations made in the FIR/complaint and the evidence collected
in support of the same do not disclose the commission of any
offence, and do not build any case against the accused ; if a
criminal proceeding is based on mala fides, or the proceeding is
maliciously instituted with an ulterior motive. The extraordinary
or inherent powers do not confer an arbitrary jurisdiction on the
CRL.M.C. 4174/2022 Page 5 of 11
Court to act according to its whim or caprice. [Ref: State of
Haryana v. Bhajan Lal : 1992 Supp (1) SCC 335; Neeharika
Infrastructure v state of Maharashtra : 2021 SCC OnLine 315]
13. In the present case, the petitioner argues that the CCTV
footage exonerates him by showing that he was a mere bystander
and had no involvement in the alleged crime. This argument,
while compelling, hinges entirely on the footage, which was not
part of the charge sheet and has not been examined by the
investigating agency. The veracity of the CCTV footage has not
been tested, and its authenticity remains unverified as it was not
included in the investigation. Hence, the ground taken by the
petitioner does not meet the high threshold required for quashing
an FIR under Section 482 of the CrPC. The absence of the CCTV
footage in the chargesheet and the failure of the investigating
agency to examine this vital evidence means that the petitioner’s
claim cannot be regarded as of “sterling quality” at this stage.
14. While the ground taken by the petitioner may not meet the
stringent test required for quashing the FIR at this stage, it cannot
be ignored that the petitioner is at a significant disadvantage due
to the omission of crucial evidence from the investigation. The
petitioner should not be left remedyless in this situation, where
an essential piece of exculpatory evidence is ignored, and he is
forced to face a protracted trial despite his potential innocence.
The petitioner should not be left at the mercy of a trial that could
be based on incomplete or flawed evidence.
15. This brings us to the second issue : whether the High
Court, in the exercise of its inherent powers under Section 482 of
CRL.M.C. 4174/2022 Page 6 of 11
the CrPC, can direct further investigation when cognizance has
already been taken by the Magistrate and the charge sheet has
been filed.
16. The scope of Section 482 of the CrPC has been expanded
in several judgments, establishing that the High Court can
intervene to ensure that an incomplete or flawed investigation
does not result in the miscarriage of justice. In Devendra Nath
Singh v. State of Bihar : (2023) 1 SCC 48, the Hon’ble Apex
Court summarised the precedents on the powers of the Trial
Court and the High Court to order further investigation and laid
down the following principles :
45. For what has been noticed hereinbefore, we could
reasonably cull out the principles for application to the
present case as follows:
45.1. The scheme of the Code of Criminal Procedure, 1973
is to ensure a fair trial and that would commence only
after a fair and just investigation. The ultimate aim of
every investigation and inquiry, whether by the police or
by the Magistrate, is to ensure that the actual perpetrators
of the crime are correctly booked and the innocents are not
arraigned to stand trial.
45.2. The powers of the Magistrate to ensure proper
investigation in terms of Section 156CrPC have been
recognised, which, in turn, include the power to order
further investigation in terms of Section 173(8) CrPC after
receiving the report of investigation. Whether further
investigation should or should not be ordered is within the
discretion of the Magistrate, which is to be exercised on
the facts of each case and in accordance with law.
45.3. Even when the basic power to direct further
investigation in a case where a charge-sheet has been
filed is with the Magistrate, and is to be exercised subject
to the limitations of Section 173(8)CrPC, in an
appropriate case, where the High Court feels that the
investigation is not in the proper direction and to do
complete justice where the facts of the case so demand,
the inherent powers under Section 482CrPC could be
exercised to direct further investigation or even
reinvestigation. The provisions of Section 173(8)CrPC do
CRL.M.C. 4174/2022 Page 7 of 11
not limit or affect such powers of the High Court to pass
an order under Section 482CrPC for further investigation
or reinvestigation, if the High Court is satisfied that such
a course is necessary to secure the ends of justice.
45.4. Even when the wide powers of the High Court in
terms of Section 482CrPC are recognised for ordering
further investigation or reinvestigation, such powers are
to be exercised sparingly, with circumspection, and in
exceptional cases.
45.5. The powers under Section 482CrPC are not
unlimited or untrammelled and are essentially for the
purpose of real and substantial justice. While exercising
such powers, the High Court cannot issue directions so as
to be impinging upon the power and jurisdiction of other
authorities. For example, the High Court cannot issue
directions to the State to take advice of the State Public
Prosecutor as to under what provision of law a person is to
be charged and tried when ordering further investigation
or reinvestigation; and it cannot issue directions to
investigate the case only from a particular angle. In
exercise of such inherent powers in extraordinary
circumstances, the High Court cannot specifically direct
that as a result of further investigation or reinvestigation,
a particular person has to be prosecuted.
(emphasis supplied)
17. The petitioner, in the present case contends that he was
merely a bystander during the alleged incident and that he had no
active involvement in the commission of the offence. His main
contention is that the available CCTV footage from the scene of
the incident would clearly establish his innocence, as it would
show him as an observer rather than a participant in the crime.
However, the petitioner claims that this critical footage was not
procured or included in the charge sheet, despite it being a vital
piece of exculpatory evidence.
18. This omission of evidence raises serious concerns about
the fairness of the investigation. The failure to consider such
evidence leaves the petitioner in a vulnerable position, potentially
leading to an unjust trial based on incomplete or inaccurate facts.
CRL.M.C. 4174/2022 Page 8 of 11
Given that the CCTV footage has the potential to exonerate the
petitioner, its absence from the charge sheet becomes a central
issue in this case.
19. In the case of Vinubhai Haribhai Malaviya v. State of
Gujarat : (2019) 17 SCC 1, it was argued before the Hon’ble
Apex Court that once cognizance had been taken, the Trial Court
lacked the authority to order further investigation, either suo
motu or upon an application by the accused. The Hon’ble Apex
Court distinguished and overruled certain earlier judgments and
rejected this argument, holding as under:
“42. There is no good reason given by the Court in these decisions
as to why a Magistrate’s powers to order further investigation
would suddenly cease upon process being issued, and an accused
appearing before the Magistrate, while concomitantly, the power of
the police to further investigate the offence continues right till the
stage the trial commences. Such a view would not accord with the
earlier judgments of this Court, in particular, Sakiri [Sakiri
Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri) 440]
, Samaj Parivartan Samudaya [Samaj Parivartan
Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3 SCC
(Cri) 365] , Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013) 5 SCC
762 : (2013) 4 SCC (Cri) 557] , and Hardeep Singh [Hardeep
Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86]
; Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC
92 : (2014) 2 SCC (Cri) 86] having clearly held that a criminal
trial does not begin after cognizance is taken, but only after
charges are framed. What is not given any importance at all in the
recent judgments of this Court is Article 21 of the Constitution and
the fact that the Article demands no less than a fair and just
investigation. To say that a fair and just investigation would lead
to the conclusion that the police retain the power, subject, of
course, to the Magistrate’s nod under Section 173(8) to further
investigate an offence till charges are framed, but that the
supervisory jurisdiction of the Magistrate suddenly ceases
midway through the pre-trial proceedings, would amount to a
travesty of justice, as certain cases may cry out for further
investigation so that an innocent person is not wrongly arraigned
as an accused or that a prima facie guilty person is not so left out.
There is no warrant for such a narrow and restrictive view of the
CRL.M.C. 4174/2022 Page 9 of 11
powers of the Magistrate, particularly when such powers are
traceable to Section 156(3) read with Section 156(1), Section 2(h)
and Section 173(8) CrPC, as has been noticed hereinabove, and
would be available at all stages of the progress of a criminal case
before the trial actually commences. It would also be in the
interest of justice that this power be exercised suo motu by the
Magistrate himself, depending on the facts of each case. Whether
further investigation should or should not be ordered is within
the discretion of the learned Magistrate who will exercise such
discretion on the facts of each case and in accordance with law.
If, for example, fresh facts come to light which would lead to
inculpating or exculpating certain persons, arriving at the truth
and doing substantial justice in a criminal case are more
important than avoiding further delay being caused in
concluding the criminal proceeding, as was held in Hasanbhai
Valibhai Qureshi [Hasanbhai Valibhai Qureshi v. State of Gujarat,
(2004) 5 SCC 347 : 2004 SCC (Cri) 1603] . Therefore, to the extent
that the judgments in Amrutbhai Shambhubhai Patel [Amrutbhai
Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4 SCC
177 : (2017) 2 SCC (Cri) 331] , Athul Rao [Athul Rao v. State of
Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri) 594]
and Bikash Ranjan Rout [Bikash Ranjan Rout v. State (NCT of
Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613] have held to
the contrary, they stand overruled. Needless to add, Randhir Singh
Rana v. State (Delhi Admn.) [Randhir Singh Rana v. State (Delhi
Admn.), (1997) 1 SCC 361] and Reeta Nag v. State of W.B. [Reeta
Nag v. State of W.B., (2009) 9 SCC 129 : (2009) 3 SCC (Cri) 1051]
also stand overruled.
(emphasis supplied)
20. In the present case, the petitioner is faced with the
undeniable prejudice of having to undergo a protracted trial
despite the availability of exonerating evidence, which has been
overlooked in the investigation and the charge sheet filed before
the Trial Court. The principles of justice demand that the
petitioner be given the opportunity to present this vital evidence
before the trial progresses any further. The failure to procure and
examine the CCTV footage undermines the integrity of the
investigation, and the petitioner cannot be left without recourse in
such circumstances.
CRL.M.C. 4174/2022 Page 10 of 11
21. Allowing the police to conduct further investigation
ensures that no relevant evidence is excluded from the case,
thereby safeguarding the petitioner’s right to a fair trial.
Additionally, it ensures that the trial proceeds on the basis of all
relevant and available evidence, allowing the Court to arrive at a
just and informed decision.
22. While the petitioner has argued that the allegations against
him are false, this Court holds that such assertions require a
proper investigation and cannot be presumed at this stage,
particularly when the evidence in question has not been made
part of the investigation. Therefore, though the FIR in the present
case cannot be quashed at this stage, the petitioner cannot be left
high and dry in these circumstances.
23. In the totality of the circumstances and in the broader
interest of justice, the police are hereby directed to investigate the
CCTV footage as part of further investigation into the present
case. Upon obtaining and analyzing the footage, the police
should file a supplementary charge sheet to include the findings
from this investigation.
24. The court records its appreciation for the able assistance of
Mr. N. Hariharan, Senior Advocate, as Amicus Curiae.
25. The present petition is disposed of in the aforesaid terms.
26. Pending application also stands disposed of.
AMIT MAHAJAN, J
DECEMBER 11, 2024
CRL.M.C. 4174/2022 Page 11 of 11