Allahabad High Court
Vivek D Wakechaure vs State Of U.P. And Another on 16 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:65959 AFR Reserved on : 08.04.2024 Delivered on : 16.04.2024 Court No. - 91 Case :- APPLICATION U/S 482 No. - 103 of 2016 Applicant :- Vivek D Wakechaure Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vikas Budhwar,Vaibhav Tripathi Counsel for Opposite Party :- G.A. Hon'ble Prashant Kumar,J.
1. Heard Shri Vaibhav Tripathi, learned counsel for the applicant, Shri Shashi Dhar P andey, learned A.G.A. appearing for the State and perused the records.
2. The instant application under Section 482 Cr.P.C. has been filed for quashing of the charge sheet no.06 of 2015 including entire proceeding emanating therefrom being Case No.1789 of 2015 (State Vs. Vivek D Wakechaure) (Case Crime No.44/2014) u/s 418, 420, 427, 465, 467, 471, 472, 474 IPC, P.S.- Chiragon, District- Jhansi pending before A.C.J.M.- Ist, Jhansi.
3. Learned counsel for the applicant submits that the applicant is a 'Senior Mobile Lab Officer' in Hindustan Petroleum Corporation Ltd. and he was assigned the job of checking the dispensing units of distributors (petrol pump herein) as well as quality check of petroleum products being sold from the petrol pumps pertaining to Agra Region. On 12.09.2009, the applicant along with his team, inspected a petrol pump in District- Jhansi (Agra Region) i.e. M/s Bhagwan & Company, and it was found that the dispensing unit of the first informant's petrol pump are malfunctioning from the nozzle and quality of the diesel was also found malfunctioning. The same was sent to the lab for further investigation. A random inspection report dated 12.09.2009 was prepared by the applicant mentioning therein "HSD DU Short delivering 70 ml per strike short". Thereafter, the sales and supplies of the petrol pump of the first informant was suspended. The recovered articles were sent to the respective labs immediately and as per report of the Quality Control Lab of the Corporation at Mathura, vide dated 17.09.2009 (as per marketing discipline guidelines), it was found that the sample does not meet the specification as per IS-1460-2005 (latest version) in Sulphur content and it was found that the FBP is 360o C and the total recovery is 96%.
4. Thereafter, show cause notice was issued to the first informant, and after giving full opportunity of hearing to him, the dealership agreement was terminated by the Senior Regional Manager, Hindustan Petroleum Corporation vide order dated 08.12.2010.
5. Though, in the dealership agreement dated 19.12.1982, it was clearly mentioned that in case of any dispute, the matter would be referred back to the sole arbitrator under the Arbitration and Conciliation Act, 1996 for adjudication and this arbitration clause was also mentioned in the termination letter. The informant instead of availing the arbitration, after three years of passing of termination order, made an appeal on 02.04.2013 before the Executive Director- Retail and Appellate Authority, Hindustan Petroleum Corporation. During pendency of the aforesaid appeal, the first informant filed an application under Section 156(3) CrPC dated 13.08.2013 before the Judicial Magistrate, Jhansi, in which, it was alleged that the dealership was allotted to the opposite party no. 2 in the year 1982 in the category of SC/ST. Since then, the officials of the corporation had been harassing him to get any partnership with a general category person. Due to this harassment, they came to the petrol pump of the applicant and as a part of the harassment, the applicant had investigated the petrol pump and initiated proceedings against him. The counsel for the applicant further submits that the applicant had carried out his duty in the official capacity and no FIR could have been lodged against the person for carrying on his official duty. This was treated as a complaint by the court below vide order dated 06.09.2013. After that, the statement of first informant was recorded under Section 200 CrPC. Though the court has treated as a complaint, still the opposite party no. 2 chose to file an application under Section 482 CrPC in this Court being Application U/S 482 No. 34147 of 2013 (Bhagwan Das v. State of UP & Ors.), in which, it is held as under :
"I deem it proper to observe that the applicant shall have the right to move before the concerned Magistrate to direct investigation even after taking cognizance in the matter as a complaint case, the Criminal Procedure Code confers that power on the Magistrate. It is hoped that the concerned Magistrate shall consider the prayer of the applicant if the facts of the case need for such investigation.
Considering the submissions of learned counsel for the parties, I am of the opinion that the impugned order does not suffer from any illegality or infirmity nor is there any abuse of the courts' process. Hence, no interference is called for by this Court in the present application moved under Section 482 Cr.P.C.
The present 482 Cr.P.C. application lacks merit. It is, accordingly, dismissed."
6. After the order, the opposite party no. 2 again approached the court below. The counsel for the applicant further submits that the trial court has issued re-investigation order by misreading the order passed by this Hon'ble Court. Thereafter, the police of Chirgaon Police Station, District- Jhansi proceeded and registered the matter as Crime No. 44 of 2014 under Sections 120-B, 418, 420, 427, 465, 467, 468, 471 & 474 IPC.
7. During the pendency of the investigation, an appeal filed by the opposite party no. 2 with the Executive Director- Retail and Appellate Authority, Hindustan Petroleum Corporation which was dismissed vide order dated 07.02.2014. The applicant challenged the FIR by filing a Criminal Misc. Writ Petition No. 9464 of 2014 (Vivek D Wakchaure & 04 Ors. v. State of UP & Ors.), in which, this court had protected the applicants from arrest vide order dated 02.06.2014.
8. The counsel for the applicant further submits that the police without investigating the matter properly, filed a charge-sheet in a very cursory manner under Sections 418, 420, 427, 465, 467, 468, 471 & 474 IPC. Thereafter, the learned Magistrate without applying its judicial mind taken cognizance vide order dated 07.01.2016 in a printed profarma. He further submits that a bare perusal of the summoning order shows that the name of the parties and the date were filled on a printed profarma and the same was passed without application of mind.
9. The counsel for the applicant further submits that the opposite party no. 2 has not given any explanation for the delay in filing the application under Section 156(3) CrPC after four and a half years.
10. He further submits that the initiation of criminal proceeding against the applicant who is an employee of the Hindustan Petroleum Corporation Ltd. is nothing but an outburst of the action which the applicant had taken in the course of his duty. The entire criminal proceeding initiated against the applicant is nothing but a vendetta for raiding the petrol pump and unearthing the illegal activities carried out by the opposite party no. 2 and initiated proceeding against him which resulted in termination of his dealership.
11. In spite of notice by this Court, the opposite party no. 2 has not put in appearance nor has come forward to the case. He further submits that the Hon'ble Supreme Court in a catena of judgements has held that civil dispute cannot be given colour of criminal offence and the criminal proceedings should not become weapons of harassment. The aforesaid view has been reiterated and affirmed by the Hon'ble Apex Court in the case of Randheer Singh v. State of UP & Ors., LL 2021 SC 574.
12. He further submits that the first informant had misused the legal system by lodging false and frivolous complaint with non-disclosure of necessary facts. It is apposite to state that dealing with a similar type of matter, the Hon'ble Apex Court recently in the case of Dinesh Gupta v. State of U.P. and Ors. 2024 LiveLaw (SC) 33 has held that :
"Unscrupulous litigants should not be allowed to go scot-free. They should be put to strict terms S.L.P. (Crl.) No. 3343 of 2022 etc. Page 2 of 33 and conditions including costs. It is time to check with firmness such litigation initiated and laced with concealment, falsehood, and forum hunting. Even State actions or conduct of government servants being party to such malicious litigation should be seriously reprimanded. In the instant case, we find initiation of criminal proceedings before a forum which had no territorial jurisdiction by submitting incorrect facts and giving frivolous reasons to entertain such complaints. A closer look at the respondent's actions reveals more than just an inappropriate use of jurisdiction. The core issue of the dispute, which involves financial transactions and agreements, clearly places it in the realm of civil and commercial law. Yet, the respondent chose to pursue criminal charges in a quest to abuse the S.L.P. (Crl.) No. 3343 of 2022 etc. Page 3 of 33 criminal justice system with a motive to seek personal vengeance rather than seeking true justice. This unnecessary turning of a civil matter into a criminal case not only overburdens the criminal justice system but also violates the principles of fairness and right conduct in legal matters. The apparent misuse of criminal proceedings in this case not only damages trust in our legal system but also sets a harmful precedent if not addressed."
13. He further submits that the Hon'ble Supreme Court in a catena of judgments have deprecated the tactics of issuing summons in a printed profarma without application of mind.
14. To buttress his arguments, he is placing reliance in the matter of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors, (1998) 5 SCC 749.
15. Per contra, Shri Shashi Dhar Pandey, learned AGA appearing for the State vociferously opposes the present application.
16. Heard learned counsel for the parties and perused the records.
17. From perusal of the summoning order issued on 06.10.2015 clearly shows that it is a printed profarma and on that printed profarma, the court concerned had filled up by hand the case number, parties name, sections, crime number, date of issuance and the next date of hearing. The order clearly shows that the same has passed without any application of mind. The instant matter is squarely covered by the judgement passed by the Hon'ble Supreme Court in the matter of Suneel Bharti Mittal v. CBI, AIR 2015 SC 923.
18. The Hon'ble Supreme Court in the matter of Mehmood Ul Rehman v. Khazir Mohammad Tunda and others, [AIR 2015 SC 2195], has followed the earlier judgments passed by the Hon'ble Supreme Court and the same was also affirmed by the Hon'ble Supreme Court in Birla Corporation Ltd. vs Adventz Investments And Holdings Ltd., AIR 2019 SC (Criminal) 1025.
19. The Hon'ble Supreme Court in the matter of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors, AIR 1998 SC 128, has clearly stated that no court will pass a summoning order without application of mind or in a printed profarma. The summon issued by the court below is completely contrary to the law laid down in catena of judgements by the Hon'ble Supreme Court.
20. As far as the delay is concerned, there is no reason given by the opposite party no. 2 in the complaint justifying the delay of four years in moving an application under Section 156(3) CrPC. The application moved is hopelessly barred. The Hon'ble Supreme Court in the matter of Sekaran v. The State of Tamil Nadu, 2023 INSC 1062 has observed that "if the delay is not satisfactory explained and it appears to the Court that cause for the delay had been necessitated to frame anyone as an accused, there is no reason as to why the delay should not be considered as fatal forming past of several factors to vitiate the conviction."
21. A plain reading of the complaint clearly shows that prima facie no case is said to have been made out against the applicant even taking the complaint as a gospel truth.
22. The instant case is squarely falls under the guidelines passed in the matter of State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335, in which, the inherent power under Section 482 Cr.P.C could be exercised. Para 102 of the judgement reads as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunicated 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 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 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 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 Act concerned (under which a criminal proceeding and/or where there is a specific provision in the Code or the Act concerned, 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 motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
23. In view of the aforesaid facts and circumstances, the FIR lodged by the opposite party no. 2 is nothing but a pure abuse of process of law and has been filed only to went on the vendetta as the applicant has carried out the inspection in the official capacity and because of his inspection, his illegal activity was unearthed which resulted into termination of his dealership.
24. Accordingly, the instant application is allowed and the entire proceedings arises out of the same are hereby quashed.
Order Date :- 16.04.2024 Rama Kant