Madhya Pradesh High Court
Manish Shivhare vs The State Of Madhya Pradesh on 19 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:23191
1 MCRC-52314-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 52314 of 2024
MANISH SHIVHARE AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anuj Bhargav and Shri Yash Dubey - Advocates for applicants.
Shri Naval Kishor Gupta - Public Prosecutor for the State.
ORDER
This application under Section 528 of BNSS has been filed seeking
following relief (s):-
“It is therefore, humbly prayed that the petition may kindly be
allowed and quashing the F.I.R. Annexure P/1 and entire proceeding
pending before the Trial Court if initiated in relation to Crime
No.0652/2024 registered Police Station Morar, District Gwalior in
the interest of justice.”
2. It is submitted by counsel for applicants that a false F.I.R. in Crime
No. 652/2024 has been registered at Police Station Morar, District Gwalior
for offence under Sections 296, 115 (2), 118 (1), 351 (3), 3 (5) of BNS.
3. In the impugned FIR, it has been alleged by complainant that on
24.11.2024 at about 08:30 AM, he and his brother-in-law ( Sala) Suraj Pal
were sitting outside the house. At that time, their neighbour namely Manish
Shivhare, his nephew Anshu and Prince came there and on account of old
enmity, started abusing complainant and his brother-in-law filthily in the
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Signing time: 20-Dec-24
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23191
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name of mother and sister. When complainant and his brother-in-law
objected to it, then all the three applicants pushed his brother-in-law and
threw him on the ground and started assaulting him by kicks and blows, as a
result, blood started oozing out from the head of his brother-in-law Suraj Pal.
Thereafter, applicant Manish Shivhare gave a teeth bite near right shoulder
of his brother-in-law, as a result, he sustained an injury. When complainant
raised an alarm for seeking help, then his brother Sunil and neighbourer
Saligram Kankar came on the spot and intervened in the matter. The incident
was also witnessed by them. While fleeing away, applicants have extended a
threat that in case, if they lodge an F.I.R. then they would be killed.
Thereafter, he came to Police Station alongwith his brother-in-law Suraj Pal,
from where they were sent to District Hospital, Morar for medical
examination. The Doctor has admitted his brother-in-law Suraj Pal and now
the complainant has come to lodge F.I.R..
4 . Challenging the F.I.R. lodged by the complainant, it is submitted
by counsel for applicants that F.I.R. in question is by way of counter blast to
the F.I.R. in Crime No. 651/2024 registered at Police Station Morar, District
Gwalior. It is submitted that the applicants had lodged the F.I.R. on
24.11.2024 at about 10:49 AM, whereas the F.I.R. was lodged by the
complainant at 14:58 hours. It is further submitted that in F.I.R, it was
alleged by the applicants that on 24.11.2024 his neighbourers Shivkumar and
his brother-in-law Suraj Baghel met them and scolded as to why they had
come on 23.11.2024 for damaging their platform ? Then he informed that he
did not come whereas on 23.11.2024 the team of Municipal Corporation,
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23191
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Gwalior had come for removing the encroachments made on the road. On
this issue, Shivkumar Baghel and Sugaj Baghel started abusing him filthily in
the name of mother and sister and also assaulted him by kicks and fists
blows. Shivkumar Baghel gave a Danda blow on his forehead, as a result, he
sustained injuries and he has also sustained injuries on his right shoulder. It
is further submitted that the applicants have given a complaint to the Police
Authorities for conducting free and fair investigation but the police is
pressurizing the applicants to enter into a compromise with the respondents.
It is further submitted that in fact, the applicant No.3 was not present on the
spot and he was at a distance of 40 to 50 Kilometres away from the spot,
which is evident from the photographs.
5. Heard the counsel for applicants.
6. Before considering the submissions made by counsel for applicants,
this Court would like to consider the scope of interference under Section 482
of Cr.P.C./528 of BNSS.
7. In the light of judgments passed by the Supreme Court in the cases
of XYZ v. State of Gujarat reported in (2019) 10 SCC 337, State of Tamil
Nadu Vs. S. Martin & Ors. reported in (2018) 5 SCC 718, Ajay Kumar Das
v. State of Jharkhand, reported in (2011) 12 SCC 319, Mohd. Akram
Siddiqui v. State of Bihar reported in (2019) 13 SCC 350, State of A.P. v.
Gourishetty Mahesh reported in (2010) 11 SCC 226, M. Srikanth v. State of
Telangana, reported in (2019) 10 SCC 373, CBI v. Arvind Khanna reported
in (2019) 10 SCC 686, State of MP Vs. Kunwar Singh by order dated
30.06.2021 passed in Cr.A. No.709/2021, Munshiram v. State of Rajasthan,
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23191
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reported in (2018) 5 SCC 678, Teeja Devi v. State of Rajasthan reported in
(2014) 15 SCC 221, State of Orissa v. Ujjal Kumar Burdhan, reported in
(2012) 4 SCC 547, S. Khushboo v. Kanniammal reported in (2010) 5 SCC
600, Sangeeta Agrawal v. State of U.P., reported in (2019) 2 SCC 336, Amit
Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460, Padal Venkata
Rama Reddy Vs. Kovuri Satyanarayana Reddy reported in (2012) 12 SCC
437 and M.N. Ojha v. Alok Kumar Srivastav reported in (2009) 9 SCC 682,
this Court can quash the proceedings only if the uncontroverted allegations
do not make out an offence. This Court cannot dwell upon the defence of
applicants. Even otherwise, where complaint discloses the commission of
cognizable offence, malafides of the complainant becomes secondary.
8. The Supreme Court in the case of Neeharika Infrastructure Private
Limited Vs. State of Maharashtra and Others reported in (2021) 19 SCC 401
has held as under:-
“13. From the aforesaid decisions of this Court, right from the
decision of the Privy Council in Khwaja Nazir Ahmad [King
Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-
44) 71 IA 203 : AIR 1945 PC 18], the following principles of law
emerge: 13.1. Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure contained in
Chapter XIV of the Code to investigate into cognizable
offences. 13.2. Courts would not thwart any investigation
into the cognizable offences. 13.3. However, in cases where no
cognizable offence or offence of any kind is disclosed in the first
information report the Court will not permit an investigation to go
on. 13.4. The power of quashing should be exercised sparingly with
circumspection, in the “rarest of rare cases”. (The rarest of rare cases
standard in its application for quashing under Section 482
CrPC is not to be confused with the norm which has been
formulated in the context of the death penalty, as explained
previously by this Court.) 13.5. While examining an FIR/complaint,
quashing of which is sought, the Court cannot embark upon an
enquiry as to the reliability or genuineness or otherwise of the
allegations made in the FIR/complaint. 13.6. Criminal proceedings
ought not to be scuttled at the initial stage. 13.7. Quashing of aSignature Not Verified
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NEUTRAL CITATION NO. 2024:MPHC-GWL:231915 MCRC-52314-2024
complaint/FIR should be an exception and a rarity than an ordinary
rule. 13.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State operate in
two specific spheres of activities. The inherent power of the court is,
however, recognised to secure the ends of justice or prevent the
above of the process by Section 482 CrPC. 13.9. The functions of
the judiciary and the police are complementary, not overlapping.
13.10. Save in exceptional cases where non- interference would
result in miscarriage of justice, the Court and the judicial process
should not interfere at the stage of investigation of
offences. 13.11. Extraordinary and inherent powers of the Court
do not confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice. 13.12. The first information report
is not an encyclopedia which must disclose all facts and details
relating to the offence reported. Therefore, when the investigation by
the police is in progress, the court should not go into the merits of
the allegations in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does
not deserve to be investigated or that it amounts to abuse of process
of law. During or after investigation, if the investigating officer
finds that there is no substance in the application made
by the complainant, the investigating officer may file an appropriate
report/summary before the learned Magistrate which may be
considered by the learned Magistrate in accordance with the known
procedure. 13.13. The power under Section 482 CrPC is very wide,
but conferment of wide power requires the Court to be cautious. It
casts an onerous and more diligent duty on the Court. 13.14.
However, at the same time, the Court, if it thinks fit, regard being
had to the parameters of quashing and the self-restraint imposed by
law, more particularly the parameters laid down by this Court in
R.P. Kapur [R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21
: AIR 1960 SC 866] and Bhajan Lal [State of Haryana v. Bhajan Lal,
1992 426], Supp (1) SCC 335 : 1992 SCC (Cri) has the
jurisdiction to quash the FIR/complaint. 13.15. When a prayer
for quashing the FIR is made by the alleged accused, the Court when
it exercises the power under Section 482 CrPC, only has to consider
whether or not the allegations in the FIR disclose the commission of
a cognizable offence and is not required to consider on merits
whether the allegations make out a cognizable offence or not and the
court has to permit the investigating agency/police to investigate the
allegations in the FIR.”
9. Thus, it is clear that this Court can quash the F.I.R. only if
uncontroverted allegations do not make out an offence and this Court cannot
conduct a mini trial or roving inquiry to decide the correctness of the
allegations.
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Signed by: ANAND KUMAR
Signing time: 20-Dec-24
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10. So far as, the question of plea of alibi of applicant No.3 Prince is
concerned, the applicants have filed some photographs to show that Prince
was at a distance 40 to 50 Kilometrs away from the spot. Just by looking at
photographs, this Court cannot draw any inference with regard to absence of
Prince from the spot. Furthermore, plea of alibi is to be proved by leading
and cogent evidence.
11. Plea of alibi is a highly disputed question of fact which has to be
proved by accused by leading cogent evidence. The Supreme Court in the
case of Vijay Pal v. State (Govt. of NCT of Delhi) , reported in (2015) 4
SCC 749 has held as under :
25. At this juncture, we think it apt to deal with the plea of alibi that
has been put forth by the appellant. As is demonstrable, the trial
court has discarded the plea of alibi. When a plea of alibi is taken
by an accused, burden is upon him to establish the same by positive
evidence after onus as regards presence on the spot is established
by the prosecution. In this context, we may profitably reproduce a
few paragraphs from Binay Kumar Singh v. State of Bihar : (SCC p.
293, paras 22-23)
“22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Penal Code, 1860 or any other law. It
is only a rule of evidence recognised in Section 11 of the Evidence
Act that facts which are inconsistent with the fact in issue are
relevant. Illustration (a) given under the provision is worth
reproducing in this context:
‘(a) The question is whether A committed a crime at Calcutta on a
certain day. The fact that, on that date, A was at Lahore is relevant.’
23. The Latin word alibi means ‘elsewhere’ and that word is used
for convenience when an accused takes recourse to a defence line
that when the occurrence took place he was so far away from the
place of occurrence that it is extremely improbable that he would
have participated in the crime. It is a basic law that in a criminal
case, in which the accused is alleged to have inflicted physical
injury to another person, the burden is on the prosecution to prove
that the accused was present at the scene and has participated in theSignature Not Verified
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NEUTRAL CITATION NO. 2024:MPHC-GWL:231917 MCRC-52314-2024
crime. The burden would not be lessened by the mere fact that the
accused has adopted the defence of alibi. The plea of the accused in
such cases need be considered only when the burden has been
discharged by the prosecution satisfactorily. But once the
prosecution succeeds in discharging the burden it is incumbent on
the accused, who adopts the plea of alibi, to prove it with absolute
certainty so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the scene of
occurrence has been established satisfactorily by the prosecution
through reliable evidence, normally the court would be slow to
believe any counter-evidence to the effect that he was elsewhere
when the occurrence happened. But if the evidence adduced by the
accused is of such a quality and of such a standard that the court
may entertain some reasonable doubt regarding his presence at the
scene when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt. For that
purpose, it would be a sound proposition to be laid down that, in
such circumstances, the burden on the accused is rather heavy. It
follows, therefore, that strict proof is required for establishing the
plea of alibi.”
(emphasis supplied)
The said principle has been reiterated in Gurpreet Singh v. State of
Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar v.
State of Haryana.
12. The Supreme Court in the case of S.K.Sattar v. State of Maharashtra,
reported in (2010) 8 SCC 430 has held as under :
35. Undoubtedly, the burden of establishing the plea of alibi lay
upon the appellant. The appellant herein has miserably failed to
bring on record any facts or circumstances which would make the
plea of his absence even probable, let alone, being proved beyond
reasonable doubt. The plea of alibi had to be proved with absolute
certainty so as to completely exclude the possibility of the presence
of the appellant in the rented premises at the relevant time. When a
plea of alibi is raised by an accused it is for the accused to establish
the said plea by positive evidence which has not been led in the
present case. We may also notice here at this stage the proposition
of law laid down in Gurpreet Singh v. State of Haryana as follows:
(SCC p. 27, para 20)
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NEUTRAL CITATION NO. 2024:MPHC-GWL:231918 MCRC-52314-2024
“20. … This plea of alibi stands disbelieved by both the courts and
since the plea of alibi is a question of fact and since both the courts
concurrently found that fact against the appellant, the accused, this
Court in our view, cannot on an appeal by special leave go behind
the abovenoted concurrent finding of fact.”
36. But it is also correct that, even though the plea of alibi of the
appellant is not established, it was for the prosecution to prove the
case against the appellant. To this extent, the submission of the
learned counsel for the appellant was correct. The failure of the plea
of alibi would not necessarily lead to the success of the prosecution
case which has to be independently proved by the prosecution
beyond reasonable doubt. Being aware of the aforesaid principle of
law, the trial court as also the High Court examined the
circumstantial evidence to exclude the possibility of the innocence
of the appellant.
13. The Supreme Court in the case of Binay Kumar Singh v. State of
Bihar, reported in (1997) 1 SCC 283 has held as under:
22. We must bear in mind that an alibi is not an exception (special
or general) envisaged in the Indian Penal Code or any other law. It
is only a rule of evidence recognised in Section 11 of the Evidence
Act that facts which are inconsistent with the fact in issue are
relevant. Illustration (a) given under the provision is worth
reproducing in this context:
“The question is whether A committed a crime at Calcutta on a
certain date; the fact that on that date, A was at Lahore is relevant.”
23. The Latin word alibi means “elsewhere” and that word is used
for convenience when an accused takes recourse to a defence line
that when the occurrence took place he was so far away from the
place of occurrence that it is extremely improbable that he would
have participated in the crime. It is a basic law that in a criminal
case, in which the accused is alleged to have inflicted physical
injury to another person, the burden is on the prosecution to prove
that the accused was present at the scene and has participated in the
crime. The burden would not be lessened by the mere fact that the
accused has adopted the defence of alibi. The plea of the accused in
such cases need be considered only when the burden has been
discharged by the prosecution satisfactorily. But once the
prosecution succeeds in discharging the burden it is incumbent on
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23191
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the accused, who adopts the plea of alibi, to prove it with absolute
certainty so as to exclude the possibility of his presence at the place
of occurrence. When the presence of the accused at the scene of
occurrence has been established satisfactorily by the prosecution
through reliable evidence, normally the court would be slow to
believe any counter-evidence to the effect that he was elsewhere
when the occurrence happened. But if the evidence adduced by the
accused is of such a quality and of such a standard that the court
may entertain some reasonable doubt regarding his presence at the
scene when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of that reasonable doubt. For that
purpose, it would be a sound proposition to be laid down that, in
such circumstances, the burden on the accused is rather heavy. It
follows, therefore, that strict proof is required for establishing the
plea of alibi. This Court has observed so on earlier occasions (vide
Dudh Nath Pandey v. State of U.P. ; State of Maharashtra v.
Narsingrao Gangaram Pimple.”
14. So far as the correctness of allegations made in the impugned
F.I.R. is concerned, the applicants have also lodged an F.I.R. alleging an
incident on the very same day and at the same time. Some of the photographs
have also been placed on record which shows that two persons are fighting
with each other while two women are trying to intervene and one woman is
sitting on the platform, whereas one person is standing at a nearby place. It is
fairly conceded that in one of the photographs, applicant Ashu is seen
alongwith Shivkumar Baghel and both of them have caught hold of the
collars of each other. Thus, it is clear that the incident has taken place.
15. Whether the applicant was the aggressor or the respondent No.2
was aggressor cannot be adjudicated by this Court while exercising the
power under Section 482 of Cr.P.C./528 of BNSS. Even if the incident is
taken to be a free fight, then everybody would be liable for their own
independent Act. Merely because the F.I.R. was lodged by complainant party
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NEUTRAL CITATION NO. 2024:MPHC-GWL:23191
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at 14:58 hours and F.I.R. was lodged by the applicants at 10:49 hours, the
same cannot be a deciding factor to adjudicate as to who was the aggressor
party. Even otherwise, in F.I.R lodged by complainant/respondent No.2, it is
specifically mentioned that initially they rushed to the Police Station from
where they were sent to Hospital and brother-in-law of complainant was
hospitalized and only thereafter they came back and lodged F.I.R.
16. By no stretch of imagination it can be said that F.I.R. lodged by
respondent No.2 was by way of counter blast to F.I.R. lodged by the
applicants. Furthermore, applicants themselves have filed the photographs of
incident in which both the parties are visible.
17. Under these circumstances, this Court is of the considered opinion
that no case is made out warranting interference.
18. The application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AK/-
Signature Not Verified
Signed by: ANAND KUMAR
Signing time: 20-Dec-24
6:27:43 PM
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