Madhya Pradesh High Court
Sushil @ Shushili Shrivastav vs The State Of Madhya Pradesh on 7 January, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
NEUTRAL CITATION NO. 2025:MPHC-IND:261
1 MCRC-12634-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 7 th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 12634 of 2020
SUSHIL @ SHUSHILI SHRIVASTAV
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Abhinav Dhanodkar, Advocate for the petitioner.
Shri Rajesh Joshi, Govt. Advocate for the respondent/State.
________________________________________________________________________
Reserved on : 29.08.2024
Pronounced on : 07.01.2025
________________________________________________________________________
ORDER
This miscellaneous criminal case having been heard and reserved for orders, coming on for pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced the following:
This petition under Section 482 of the Code of Criminal Procedure is filed requesting for quashment of FIR registered at Crime No.851/2019 at Police Station Rajendra Nagar, Indore.
2. It is stated in the petition that FIR at Crime No.851/2019 was registered on the basis of a complaint that the petitioner alongwith Rajbahadur has developed a colony called Raj Rani Colony without Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 2 MCRC-12634-2020 diversion and permission of the Town and Country Planning department in the year 1989 and sold the plots. The FIR was registered on the basis of letter dated 30.12.2019 of the Zonal Officer, Indore Municipal Corporation. The colony in question has been developed thirty years ago in the year 1989. The present petitioner is neither the Coloniser nor the builder or developer of the colony. The colony was developed by Raj Bahadur Raghuvanshi. The petitioner was arrested. He was granted bail vide order dated 13.01.2020, passed in M.Cr.C. No.373/2020. The petitioner seeks quashment of the impugned FIR on following grounds :-
(1) It is alleged that the offence punishable under Section 292(C) of the M.P. Municipal Corporation Act, 1956 has been committed by the petitioner on 30.12.1989. It is alleged that the petitioner has undertaken to develop the colony on 30.12.1989.
(2) The provisions contained in 292(A) to 292(F) have been inserted by M.P. Amendment Act, 18 of 1997 and these provisions came into force w.e.f. 21.04.1997. Therefore, the offence punishable under Section 292(C) of the M.P. Municipal Corporation Act, 1956 was not in existence on 30.12.1989.
(3) No ingredients of the offence punishable under Sections 420, 467, 468 and 471 of IPC are made out against the petitioner. There is a delay of 30 years in lodging the FIR. The FIR is illegal and without jurisdiction.
3. On these grounds, it is prayed that FIR at Crime No.851/2019 be quashed.
4. Learned counsel for the petitioner in addition to the grounds Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 3 MCRC-12634-2020 mentioned in the petition contends that in view of the later amendment in the M.P. Municipal Corporation Act, the offence punishable under Section 293(C) of the Act is not made out. Learned counsel further submits that there was no intention to defraud or cheat by the petitioner as he has not entered into any transaction with regard to development of colony. The petitioner has not executed any document nor he has applied for development of colony, therefore, the FIR deserves to be quashed.
5. Per contra, learned counsel for the State referring to the statement of witnesses recorded under Section 161 of the Code of Criminal Procedure Code submits that involvement of the petitioner in the alleged offence is writ large. He has induced many persons for purchase of plot in the Raj Rani Colony. He has executed and participated in execution of the alleged notarized allotment of plot alongwith other accused Rajbahadur. Therefore, the alleged offence is clearly made out against the petitioner. The petition is merit-less.
6. Heard learned counsel for both the parties and perused the record.
7. The Supreme Court in case of State of Haryana vs. Ch. Bhajan Lal, reported in AIR 1992 SC 604 after an elaborate consideration of the matter and after referring to its various earlier decisions, has observed in para 108 as under:-
''108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 4 MCRC-12634-2020 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 channelized 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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 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 F.I.R. do not constitute a cognizable offence but constitute only a noncognizable 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 malafide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'' Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 5 MCRC-12634-2020
8. In the case of Neeharika Infrastructure Vs State of Maharashtra reported in 2021 SCC Online SC 315, a Three Judge Bench of the Supreme Court reiterated the principles laid down in the case of Bhajanlal (supra) and held that while the Courts ought to be cautious in exercising powers under Section 482, they do have the power to quash the proceedings. The test is whether or not, the allegations in the FIR disclose the commission of a cognizable offence. The Court should not enter into merits of the allegations or trench upon the power of Investigating Agency to investigate into the allegations involving commission of a cognizable offence.
9. The Supreme Court in the case of Madhavrao Jiwaji Rao Scindia & Anr. Etc. Vs. Sambhajirao Chandrojirao Angre & Ors. reported in 1988(1) SCC 692 has held as under :-
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
10. The case diary reveals that various residents of Rajrani Nagar Colony, Indore submitted written complaints to SHO, PS- Rajendra Nagar, Indore against Raj Bahadur and Sushil Shivastava inter-alia Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 6 MCRC-12634-2020 alleging that Raj Bahadur and Sushil Shivastava have developed Rajrani Nagar Colony and sold the plots in the colony, but road and other development works have not been done. The complaint was inquired into. Relevant information was requisitioned from Municipal Corporation, Indore. Municipal Corporation, Indore informed that Rajrani Nagar Colony is an illegal colony. No permission was ever granted to builders Raj Bahaddur and Sushil Shrivastava for development of the said colony. The Building Officer, Zone no.- 13, Municipal Corporation, Indore submitted written complaint to SHO, PS-Rajendra Nagar, Indore dated 30.12.2019 requesting for registration of FIR and investigation into the alleged offence. Based on the inquiry, PS- Rajendra Nagar, Indore registered FIR at Crime no. 851/2019 for the offences punishable under section 292(C) of M.P. Municipal Corporation Act, 1956 and sections 420, 467, 468, 471, 34 of IPC against Raj Bahaddur and Sushil Shrivastava (petitioner). The investigation further revealed that Raj Bahadur and Sushil Shrivastava had promised to develop Rajrani Nagar Colony and transferred various plots on the basis of notarized documents to Babulal, Nehalsingh, Suresh Chouhan, Santosh Mujalda, Kaluram, Sitaram Soni, Subhash Tawade, Jagdish Kothe, Darshan Singh, Ramsingh Amaliyar, Dhulichand, Darshan Singh Devgan and received certain sums of money on promise of developing the colony. It was further revealed by investigation that Raj Bahadur and Sushil Shrivastava had executed these notarized documents to plot holders on the basis of power of attorney allegedly executed by Mathuralal Hardiya. The successors of Mathuralal alleged that the power of attorney is a forged Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 7 MCRC-12634-2020 document. Thus, it is alleged that Raj Bahadur and Sushil Shrivastava have executed notarized documents for transfer of plots without title on the land. They did not even apply for permission to develop the colony under Chaper-23-A of the M.P. Municipal Corporation Act, 1956 and Madhya Pradesh Nagar Palika (Colonizer ka Registrikaran, Nirbandhan Tatha Shartein) Niyam, 1998.
11. It is contended by learned counsel for the petitioner that Chapter- 3 of M.P. Municipal Corporation Act, 1956 was inserted by M.P. Amendment Act, 18 of 1997 and the provision came into force w.e.f 21.04.1997. The penal provision was not in existence at the time of development of Rajrani Nagar Colony. In view of the law laid down in the case of Dinabandhu Banerjee Versus Nandini Mukherjee reported in 1993 SCC OnLine Cal 183, the alleged offence cannot be treated as a continuing offence, therefore, the offence punishable under section 292(C) of M.P. Municipal Corporation Act, 1956 is not made out against the petitioner.
12. The statements of plot holders recorded during investigation reveal that they were handed over the plots on the basis of notarized documents by the petitioner and Raj Bahadur from year 1989 onwards till the year 2008. Thus, the petitioner was allegedly transferring the plots and receiving money on promise of development of the colony, even after coming into force of Chapter-3 of M.P. Municipal Corporation Act, 1956 and the Rules, 1998 without applying for permission to develop the colony. The alleged transfer of plots and receipt of money without clear title to the land, that too, on the basis of notarized documents, which is Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM NEUTRAL CITATION NO. 2025:MPHC-IND:261 8 MCRC-12634-2020 impermissible in law, goes to show the intention to defraud and cheat from the very inception. The FIR and the consequent investigation, prima-facie, make out cognizable offence of cheating, forgery and illegal colonization against the petitioner. The allegations cannot be said to be inherently improbable or manifestly attended with malafide. At this juncture, it cannot be said that the possibility of conviction is remote and bleak and continuation of criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him.
13. In view of afore-stated discussion, the quashment of FIR and consequent proceedings against the petitioner would itself be an abuse of process of Court, therefore, no case is made out for invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C.
14. Consequently, the present petition under Section 482 of CrPC is dismissed.
Certified copy as per rules.
(SANJEEV S KALGAONKAR) JUDGE pn Signature Not Verified Signed by: PREETHA HARI NAIR Signing time: 1/8/2025 11:29:59 AM