Madhya Pradesh High Court
Abhinav Shukla vs The State Of Madhya Pradesh on 28 May, 2018
9
M.Cr.C.No.9710/2017
High Court of Madhya Pradesh: Bench at Indore
Single Bench: Hon'ble Shri Justice S.K. Awasthi
M.Cr.C. No. 9710/2017
Abhinav Shukla
vs.
State of Madhya Pradesh
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Shri A.K. Saraswat learned counsel for the applicant.
Shri Pankaj Wadhwani, learned Public Prosecutor for the State.
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ORDER
(Passed on 28/05/2018 ) The applicant has invoked the extra ordinary jurisdiction of this Court under Section 482 of Code of Criminal Procedure Code, 1973 ( For brevity " Cr.P.C.) for quashing the FIR dated 10.10.2015 bearing crime No.672/2015 registered at Police Station- Palasiya District Indore against the applicant for offence under Section 25 and 27 of the Arms Act, 1959 and also the Criminal Case No. 46360/2015 pending before Additional Chief Judicial Magistrate, Indore.
(2) The relevant facts in nutshell for the disposal of the case are that on 10.10.2015, the Station House Officer, Palasiya Shivpal Singh Kushwaha received an information from an informant that some arms/weapons were going to be sold/traded near Jain Temple, Tilak Nagar, Indore. As soon as Station House Officr, Shivpal Singh Kushwaha reached Jain Temple, Tilak Nagar, Indore, he was told by D.S.P (ATS) Ajay Kaithwas that the applicant-Abhinav Shukla had brought some illegal weapons from Mandsour which were to be sold to co-accused Vinod Namdev and 9 M.Cr.C.No.9710/2017 Shailendra, who were traveling from Mandsour to Indore in white Maruti Ciaz car bearing registration No. MP-14-CC-104 and the car would halt near Jain Temple, Tilak Nagar, Indore. On this information Station House Officer, Shivpal Singh Kushwaha reached the aforesaid place. When the car stopped at Jain Temple, Tilak Nagar, Indore and the applicant-Abhinav Shukla supposedly sat in the car, he was nabbed by the police force from ATS and police Station, Palasiya. A search operation was done on the occupants of the car. During search a country made pistol with two cartridge were seized from the applicant - Abhinav Shukla and whereas 8-6 cartridge were seized from Vinod and Shailendra resptively, which they were possessed without having any license. The entire operation was witnessed by Omprakash and Manoj Gausar . After that a search and seizure was also done in house No. 37, Vandna Nagar, Indore from where from two more pistols, a country made pistol and altogether 69 cartridge were recovered. The accused persons were apprehended and case under Section 25 and 27 of the Arms Act bearing crime 672/2015 was registered against them at police Station, Palasiya District Indore. After completion of the investigation, charge-sheet has been filed before the competent court, which is pending as criminal case No 46360/2015 before the court of Additional Chief Judicial Magistrate, Indore for the offence under Section 25 and 27 of Arms Act, 1959.
(3) Learned counsel for the applicant submitted that being aggrieved by the said action, the applicant has preferred an application under Section 482 of Cr.P.C. bearing M.Cr.C. No 9 M.Cr.C.No.9710/2017 9490/2016 before this Court which was disposed of vide order dated 24.10.2016 with a direction to the Trial Court to call entries in the daily diary of the relevant dates of the concerning police Station and copy may be supplied to the counsel for the applicant and after hearing and considering the entries in the daily diary, a speaking order may be passed before framing of charges. Despite of issuance of aforesaid direction, the learned trial court has passed cryptic order and has not considered the impact of the entries in daily diary and passed the impugned order by which the charges were framed against the applicant for the offence under Section 25 (1) (B) (A) of Arms Act.
(4) Learned counsel for the applicant further submitted that from the first information report, it is evident that a search and seizure were made between 04:30 to 5:30 PM at Tilak Nagar and, from 5:35 to 6:30 PM at 37, Vandna Nagar, Indore by police force comprising of T.I. Shivpal Singh Kushwaha, S.I. Dilip Singh Gour S.I. Preeti Katare, ASI Rekha Yadav and Constable Pradeep. However, as per Rojnamacha entries No.50 on 10.10.2015 at 15:58 PM depicts that inspector Shivpal Singh Kushwaha, Sub Inspector- Dilip Singh Gour, Sub Inspector Preeti Katare, ASI Balaram Sisodiya, Constable Harinarayan and Pradeep had departed for mock drill at 15 battalion SAF Indore and as per entry No. 60 they returned after mock drill at 06:15 PM. Thus, it is clearly indicates that the prosecution story is contrived and fabricated because aforesaid police forces allegedly done search and seizure between 4:30 PM to 06:30 PM on 10.10.2015 at Tilak Nagar and 37, Vandna Nagar, Indore, which is the time where police forces were 9 M.Cr.C.No.9710/2017 participating in mock drill at 15 Battalion, SAF, Indore and returned 06:15 PM.
(5) Learned counsel for the applicant also submitted that there is no evidence on record to show that search and seizure was made at the instance of the applicant at 37, Vandna Nagar, Indore and the seizure was made from the physical possession of the applicant. There is no documents on record to show that the house No.37, Vandna Nagar belongs to the applicant or he is residing therein. There is no independent witnesses casts unholy shadow on the entire operation which cannot withstand legal scrutiny, is illegal and vitiated and there is no record in seizure memo of the articles having been sealed. Seven mobiles phone were recovered and seizure of the same was made at 09:30 PM. The IMEI number of the mobiles phone were also on record. The scrutiny of the EMEI numbers and SIM card reveals that the mobiles are continuously reflecting tower No. 500440278 covering Saket square area between 02:00 PM to 07:00 PM, where the office of ATS is situated. Which also shows that the seizure are fabricated, contrived and concocted. However, the trial court ignored the aforesaid circumstances which shows the innocence of the applicant. Hence, he prayed for quashing of the FIR dated 10.10.2015 register bearing crime No 672/2015 at police Station, Palasiya and also charge sheet and all consequential proceedings. (6) On the other hand learned public prosecutor has supported the prosecution on the ground that the prima-facie allegation leveled against the applicant, are made out and the points raised by the applicant regarding his innocency cannot be considered at the 9 M.Cr.C.No.9710/2017 initial stage, hence, this application deserves to be dismissed. (7) I have considered the rival contentions raised on behalf of the applicant and perused the documents placed on record alongwith the present application.
(8) As per prosecution story on 10.10.2015 at about 16:30 PM during patrolling at Tilaknagar, Sub Inspector Dilip Singh Gour received an information from an informant that applicant - Abhinav Shukla brought some illegal weapons from Mandsour which will be traded to the co-accused Vinod Namdev and Shailendra, who were traveling from Mandsour by Maruti Ciaz car bearing registration No MP-14-CC-104. On this information police forces reached near Jain Temple, Tilak Nagar, Indore. As soon as the car stopped at Jain Temple, Tilak Nagar, Indore and the applicant - Abhinav Shukla sat in the car, he was nabbed by the police force and a search was done on the occupants of the car and during search a country made pistol and two cartridges were found in the possession of the applicant, which he was carrying without any license. During search 8-6 cartridge were also seized from co- accused Vinod Namdev and Shailendra respectively and after that police party raided house No. 37, Vanda Nagar wherein 3 pistols and 69 cartridge were recovered and the case was registered against the applicant and other co-accused persons for the offence under Section 25 and 27 of the Arms Act at crime No 672/2015 at police Station- Palasiya, District Indore.
(9) From the first information report and seizure memo, it is evident that police force of police station, Palasiya comprising Station House Officer Shivpal Singh Kushwaha, S.I. Dilip Singh 9 M.Cr.C.No.9710/2017 Gaur, S.I. Preeti Katare, ASI Rekha Yadav and Constable Pradeep had made search and arrested the applicant and other co-accused persons between 16:30 PM to 18:05 PM at Jain Temple, Tilak Nagar and 37 Vandna Nagar, Indore. However, from the Rojnamacha entry No. 50 and 60 dated 10.10.2015 it appears that about 15:58 PM, the Station House Officer Shivpal Singh Kushwaha, S.I. Dilip Singh Gour, S.I. Preeti Katare, ASI Balram Sishodiya, Constable Pradeep and Harinarayan had departed for mock drill at 15 Batallion, SAF Indore and they returned after mock drill at 18:15 PM. If these police officials were departed for mock drill at 15:58 PM and they returned back at 18:15 PM, then how they done search and seizure between 16:30 PM to 18:30 PM at Jain Temple, Tilak Nagar and 37, Vandna Nagar. (10) The police force has recovered 3 pistols and 69 cartridges from the house No. 37, Vandna Nagar alleged to be belongs to applicant Abhinav Shukla, but there is no disclosure statement is available on record to show that the aforesaid recovery has been made at the instance of the applicant. The seizure memo did not disclose that the recovery has been made from the physical possession of the applicant- Abhinav Shukla, the police has not obtain any signature of the applicant in the seizure memo, therefore, it casts doubt that the aforesaid recovery has been made from the possession of the applicant. There is no mention in the seizure memo that the articles having been sealed. (11) In the case of Rajiv Thapar vs. Madanlal Kapoor 2013(3) SCC 330, the Hon'ble Apex Court has held in the following manner regarding exercising the powers under 9 M.Cr.C.No.9710/2017 Section 482 of 'The Code' as under:
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
(12) Having carefully examined the law laid down by the Apex Court in the case of Rajiv Thapar (Supra), and on consideration of the material brought on record by the applicant, it is a fit case in which the inherent power of this Court under Section 482 of Cr.P.C. may be exercised. (13) On the basis of the aforesaid discussion, it would be apparent 9 M.Cr.C.No.9710/2017 by considering the entire facts and circumstances of the case, no offence is made out against the applicant, and it is fit case in which the inherent power of this court under Section 482 of the Cr.P.C.may be exercised.
(14) Consequently, application filed by the applicant under Section 482 of Cr.P.C. is hereby allowed and the FIR bearing crime No 672/2015 registered at police Station, Palasia, Indore against the applicant-Abhinav Shukla for offence under Section 25 and 27 of the Arms Act,1959 and all consequential proceedings flowing out of the said FIR also stand quashed.
Certified copy as per rules.
(S.K. Awasthi) Judge praveen Digitally signed by PRAVEEN KUMAR NAYAK PRAVEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=f4902b436d1d0dce8768c20036c3d2c8a26cffa2c ed3b40526964d4a385d75e5, KUMAR NAYAK 2.5.4.45=03210043216CF163764BB1153BD86524A8D83B 17A18941568872AA45E8BF9CEEF01A15, cn=PRAVEEN KUMAR NAYAK Date: 2018.05.28 19:10:42 +05'30'