Madhya Pradesh High Court
Kapil Agnihotri vs The State Of Madhya Pradesh on 20 November, 2019
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1 M.Cr.C.No.24768/2019
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Single Bench : Hon'ble Shri Rajeev Kumar Dubey, J.
Misc. Criminal Case No.24768/2019
Kapil Agnihotri
vs.
State of M.P. and Anr.
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Shri A.S. Baghel, learned counsel for the applicant.
Shri Shivam Hazari, learned Panel Lawyer for the respondent No.1/State.
None for the respondent No.2/complainant though served.
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ORDER
Reserved on : 13/11/2019 Delivered on : 20/11/2019 This petition has been filed under Section 482 of Cr.P.C. for quashing the proceeding of S.T.No.56/2014 pending before 3rd Additional Judge to the Court of First Additional Sessions Judge Sidhi, District Sidhi.
Brief facts for the case which are relevant to the disposal of this petition are that complainant/respondent no.2 Shrikumar Pandey filed a private complaint before Judicial Magistrate First Class, Sidhi averring that in the year 2001 Madhya Pradesh Government sanctioned Rs.2,00,000/- for repairing work of Sidhi Dam and Canal and Collector directed to applicant Kapil Agnihotri, Executive Engineer, Water Resources Department, Sidhi to conduct said repairing work. That work of repairing was done by the co- accused H.S. Gupta, the then Sub-Divisional Officer, Water Resources Department, Sub-Division, Sidhi and co-accused Kapil Agnihotri. It was alleged that they prepared seven forged muster-roll Nos.(i) 03790/8, (ii) 03808/4, (iii) 03808/10, (iv) 03808/12, (v) 03808/15, (vi) B3808/16, (vii) Digitally signed by VARSHA SINGH Date: 2019.11.26 10:51:26 +05'30' 2 M.Cr.C.No.24768/2019 03790/29, in which the name of some persons who employed in other departments and some persons who died two years ago were mentioned and they withdrew the payment in the name of these persons mentioning that they also did job in the repairing work of Dam and Canal and embezzled that amount, so action be taken against them. On that learned JMFC recorded the statements of complainant/respondent No.2 Shrikumar Pandey and his witnesses, thereafter, took cognizance against the applicant and co-accused for the offence punishable under Sections 167, 466B, 468, 471 & 120-B of the IPC and registered the Criminal Case No.1434/2008 and vide order dated 17/2/2014 learned JMFC committed the case to the Court of Sessions. On that, S.T. No.56/2014 was registered which is pending before 3 rd ASJ, Sidhi. Being aggrieved from that order, the applicant filed this revision.
Learned counsel for the applicant submitted that there is no evidence on record to show that the applicant prepared any fake muster roll or took any payment from the department showing the name of the dead persons in the muster roll. The task of preparing the muster roll and filling up the attendance of the workers engaged in the work was of the timekeeper and Sarpanch The applicant had no role to play in that work. So even if it is assumed that the name of some person is wrongly mentioned in the muster roll applicant is not liable for that. Likewise, according to the provisions of Section 37 & 39 of the Adhiniyam, no Court can take cognizance of the offence punishable under the Adhiniyam, without prior permission of the Commissioner, while in this case learned trial Court without sanction of Commissioner took cognizance against the applicant for the offence punishable under Section 6 of the Adhiniyam and wrongly framed charges against the applicant for the offences punishable under Section 420/34, 467/34, 468/34, 471/34 of IPC and Section 6 of the Adhiniyam. In this regard learned counsel of the applicant also placed reliance on this Court judgement passed in the case of Murlidhar Agrawal Vs. State of Madhya Pradesh reported in 2011 (3) MPLJ 152, S.P. Kori Vs. State of M.P. (2001) 2 MPLJ 702 and Division Bench judgement passed in M.Cr.C.No.4076/2014 dated 16/7/2014.
Digitally signed by VARSHA SINGH Date: 2019.11.26 10:51:45 +05'30' 3 M.Cr.C.No.24768/2019Learned counsel for the respondent/State opposed the prayer and submitted that from the evidence of complainant and his witnesses prima- facie it appears that the applicant who was posted as Executive Engineer, Water Respirces Department, Sidhi in connivance with co-accused H.S. Gupta, the then Sub-Divisional Officer, Water Resources Department, Sub- Division, Sidhi prepared forged muster-roll, in which the name of some persons who were employed in other departments and some persons who have died two years ago, were mentioned, withdrew the payment in the name of these persons mentioning that they also did job in the repairing work of Dam and Canal and embezzled that amount. So, the petition be dismissed.
This Court has gone through the record and arguments advanced by the learned counsel for the parties. The Apex Court in the case of Gian Singh V/s. State of Punjab and another reported in (2012) 10 SCC 303, in which Apex Court held that, "The power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 Cr.P.C. Cases where power to quash criminal proceedings may be exercised where the parties have settled their dispute, held, depends on facts and circumstances of each case. Before exercise of inherent quashment power under Section 482, High Court must have due regard to nature and gravity of the crime and its societal impact. Offences arising from commercial, financial, mercantile, civil, partnership or like transactions or offences arising out of matrimony relating to dowry etc. or family disputes where the wrong is basically private or personal in nature and parties have resolved their entire dispute, High Court may quash criminal proceedings."
The Apex Court in the case of State of Haryana v. Bhajan Lal (supra) relied by the learned counsel of the applicant held as under:-
Digitally signed by VARSHA SINGH Date: 2019.11.26 10:53:20 +05'30' 4 M.Cr.C.No.24768/2019"The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the 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 formulae 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 Sections 156(1) 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 absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that 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 mala fide and/or where the proceeding is maliciously instituted with an ulterior Digitally signed by VARSHA SINGH Date: 2019.11.26 10:53:42 +05'30' 5 M.Cr.C.No.24768/2019 motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
It transpired from the above pronouncement of the apex court that High Court may exercise inherent powers to quash an FIR when the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused and/or Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence. The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.
If we examine the instant case, in the light of the above pronouncement of the Apex Court from the complaint it is apparent that at the time of incident applicant was posted as Executive Engineer, Water Resources Department, Sidhi. In the complaint and in the statement of the complainant it is mentioned that the applicant in connivance with co-accused H.S. Gupta prepared forged muster roll and withdrew the payment in the name of the person who worked in other department and some have died, showing that they worked in Dam repairing work. At this stage, this court cannot ascertain the veracity of the statements of these witnesses by evaluating the statement of these witnesses on merits, because it requires evidence to decide. The task of preparing the muster roll and to filling up the attendance of the workers engaged in the work was of the timekeeper. Applicant had no role in that work. Co-accused prepared forged muster roll without the knowledge of the applicant is the defence of the applicant which also requires evidence to decide. So that also can not be considered at this stage. So, looking to the averment of the complaint, in the considered opinion of this Court learned trial Court did not commit any mistake in Digitally signed by VARSHA SINGH Date: 2019.11.26 10:56:00 +05'30' 6 M.Cr.C.No.24768/2019 framing the charge for the offences punishable under Sections 420/34, 467/34, 468/34, 471/34 of IPC .and Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam against the applicant.
Section 39 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam reads as thus;
"39. Cognizance of offences.- All offences under this Act shall be cognizable :
[Provided that the Police Officer shall not investigate an offence under this Act except on a direction of the prescribed authority, not below the rank of Commissioner of Division on a report admitted by him to such authority].
[Provided further that the State Government may, at any time for the purpose of satisfying itself as to the propriety of any order passed by the Commissioner of the Division as prescribed authority either on its own motion or on reference made by the prescribed authority, shall call for and examine the record of any case pending before or disposed by such authority and may pass such order in reference thereto as it thinks fit.] Which clearly shows that Section 39, of the Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, provides for the permission of a police officer to investigate the crime under the Adhiniyam and not in relation to cognition of crime. While in this case, the police did not investigate the matter. Complainant/ respondent No.2 filed the private complaint, before JMFC. Even learned trial court also took cognizance against the applicant for the offence punishable under Sections 420/34, 467/34, 468/34, 471/34 of the IPC and for taking cognizance for those offences no sanction of Commissioner is required.
Even applicant earlier also had filed application under section 197 of Cr.P.C. before trial Court which was rejected by the trial Court, against which applicant filed Criminal Revision No.2741/2015 which was dismissed by the Coordinate Bench of this Court vide order dated 16/11/2015 observing that "present revision is hereby dismissed as withdrawn with the Digitally signed by VARSHA SINGH Date: 2019.11.26 11:02:20 +05'30' 7 M.Cr.C.No.24768/2019 liberty that all such objections of merits can be raised before the trial Court at the time of framing of charges but objection under Section 197 of CrPC cannot be raised again" while applicant by way of this petition again raised objection regarding cognizance.
The facts of the cases Murlidhar Agrawal Vs. State of Madhya Pradesh (Supra), S.P. Kori Vs. State of M.P. (supra) and Jaynaryan Para Vs. State of Madhya Pradesh and another (supra) as relied upon by the learned counsel of the applicant do not match with the present case. In the first case charge-sheet was filed by the police after investigation of crime while in this case a private complaint was filed by the respondent. In that case co-ordinate bench of this court acquitted the accused for the charge punishable under Section 6 on the ground that mens rea is not proved from the statement of prosecution witnesses. While in this case trial is going on and at this stage, this court is no right to evaluate all the prosecution evidence on the merits. In the second case, police filed charge sheet against the accused on that coordinate Bench of this court held that police has no right to file charge sheet for the offences punishable under the Adhiniyam without taking permission from the officer below the rank of commissioner. In that case, also co-ordinate bench of this Court directed to the trial court to proceed further in the case for the commission of an offence punishable under Section 409/34 of the IPC. In this case also apart from section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam trial court also framed charge against the applicant for the offence punishable under Section 420/34, 467/34, 468/34, 471/34 of the IPC so only on the basis that the charge of Section 6 of Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam is not made out against the applicant, Applicant can not be discharged for all the charges. In third case a Division Bench of this Court set aside the proceeding of criminal case on the ground that Magistrate has no right to send the complaint under Section 156 (3) of Cr.P.C. for investigation to Special Police Establishment, Lokayukta, while in this case Magistrate did not send the complaint to Special Police Establishment, Lokayukta, so that judgements do not assist the applicant.Digitally signed by VARSHA SINGH Date: 2019.11.26 11:02:34 +05'30' 8 M.Cr.C.No.24768/2019
Learned counsel of the applicant also admitted that the statement of only one prosecution witnesses remains to be recorded. Which shows that the trial is almost completed. In these circumstances, there is no need to interfere in the impugned order of the trial court. Hence the petition is dismissed with the liberty to the applicant that the applicant is free to raise all his objection before the trial Court at the appropriate stage, which shall be decided by the learned trial Court according to law at an appropriate stage without being influenced by the impugned order or observation made by this Court in this petition.
Certified copy as per rules.
(Rajeev Kumar Dubey) Judge vs Digitally signed by VARSHA SINGH Date: 2019.11.26 11:02:54 +05'30'