Punjab-Haryana High Court
Baljinder Singh vs State Of Punjab on 8 January, 2013
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRM M-19487 of 2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM M-19487 of 2012 (O&M)
Date of Decision: January 8, 2013
Baljinder Singh
.....Petitioner
Vs.
State of Punjab
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. K.S. Dadwal, Advocate
for the petitioner.
Mr. Ankur Jain, AAG, Punjab,
-.-
M.M.S. BEDI, J.
The present case is a glaring example of misuse of official authority by police to harass and unnecessarily trapping a Non Resident Indian in a criminal case by abusing the process of law. The petitioner has filed this petition invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. for seeking quashing of FIR No. 59 dated May 2, 1999 under Sections 489 A, 489B, 489 C IPC registered at Police Station, Payal, CRM M-19487 of 2012 [2] District Police Khanna and the subsequent proceedings besides challenging the order dated December 18, 1999 declaring the petitioner a proclaimed offender in contravention to provisions of Section 82 Cr.P.C. The FIR was registered in the present case on the basis of secret information. The allegations in the FIR registered at the instance of Balbir Singh, SI are that he, alongwith police party and a private witness Shamsher Singh was on his way towards Rajwant Hospital, Doraha with DSP Payal Balraj Singh Sidhu in search of the vehicles when during search of a vehicle, a secret information was received from a special informer that near the road of village Kaddon near Kulbir Palace, two young persons out of whom one was Sikh person Pritpal Singh son of Balbir Singh, Jat resident of Mona Kalan and other Hindu gentleman whose name and address was Baljinder Singh son of Sh. Pargat Singh, Caste Jat, resident of Mona Kalan, Police Station Mehtiana, District Hoshiarpur, had kept with them a huge quantity i.e. 10 Canadian dollars in de-nomination of 50 dollars each in Contessa Car bearing registration No. DL-1CF-2305 and that they were indulging in the business of counterfeit foreign as well as Indian currency and that they were standing near Kulbir Palace. In case, a raid was conducted they could be apprehended with counterfeit currency. On receipt of information, the police party and Shamsher Singh who was an independent witness reached at the disclosed place where a Sikh person was standing on the side of Contessa Car. On inquiry, he disclosed his name as Pritpal Singh son of Balvir Singh, Jat, R/o Village Mona Kalan, PS Mehtiana, District CRM M-19487 of 2012 [3] Hoshiarpur and when the SI was interrogating him the other person who was sitting on the Driver seat of Contessa Car bearing registration No.DL- 1CF-2305 swiftly started the car and sped away. The person who was nabbed i.e. Pritpal Singh, disclosed the name and other person as Baljinder Singh, the petitioner. Pritpal Singh was searched. 10 Canadian dollars in the denomination of 50 dollars each with same numbers FHN9367918 printed on them were recovered. The recovered currency Canadian dollars were taken in custody by recovery memo. The said accused did not have any permission, therefore forming an opinion that counterfeit foreign Canadian Currency had been possessed for getting the same converted into Indian Currency. Offence under Sections 489 A, 489B and 489C IPC had been committed. An intimation was sent through Gurdial Singh, Constable No. 305 to Police Station against Pritpal Singh and Baljinder Singh. On the basis of said information, the FIR was registered against Pritpal Singh and the petitioner. It is not out of place to observe here that Pritpal Singh faced trial and was convicted under Section 489 C IPC vide judgment dated December 11, 2009 for having been found in possession of forged and counterfeited Canadian Dollars. The petitioner was declared a proclaimed offender as such he was not tried.
Petitioner through the instant petition under Section 482 Cr.P.C. has claimed that he had been involved in the above said FIR falsely and that even if the allegations in the FIR are presumed to be true, no offence is made out against the petitioner. It was claimed by the petitioner CRM M-19487 of 2012 [4] that he has been involved in the case on account of personal enmity, taking advantage of the fact that he was in India on the alleged day of recovery. Petitioner claimed that he is a permanent resident of Canada and had gone back to Canada in the last week of May 1999. He is not aware of any proclamation issued against him. It had been urged that the order dated December 18, 1999 annexure P-2 declaring petitioner as a proclaimed offender shows that during the course of Sessions trial against Pritpal Singh,- said order was passed mentioning that the petitioner was abroad. It was urged by counsel for the petitioner that the petitioner cannot be declared a proclaimed offender under the provisions of Section 82 (4) of Cr.P.C. as the offence under Section 489 A, 489 B and 489 C IPC is not mentioned in sub-sections of Section 84 (2) Cr.P.C. which was added vide notification dated June 21, 2006 by Act No.25 of 2005.
I do not find any force in the contention of learned counsel for the petitioner that a person accused of offence under Section 489, A, B and C IPC cannot be declared a proclaimed offender in view of judgment rendered by this Court in Diksha Puri Vs. State of Haryana and others, CRM M-359 of 2012 wherein the scope of Section 82 (4) Cr.P.C. in context to provisions of Section 174 A IPC has been considered holding that harmonious constructions of provisions of Section 82 (4) Cr.P.C. with other provisions of Cr.P.C. and Section 174 A IPC does not provide immunity to proclaimed person accused of offence mentioned in Section 82 (4) Cr.P.C.from being declared a proclaimed offender. In view of said CRM M-19487 of 2012 [5] circumstances the petitioner was directed to appear before CJM, Ludhiana on September 12, 2012 providing him interim protection that in case of his doing so, he shall be released on interim bail to the satisfaction of said Court. The petitioner has complied with the directions of this Court and has returned from Canada to join the stream of process of law. On October 9, 2012, State counsel was required to inform the Court whether the prosecution agency intended to present a supplementary challan against the petitioner in the case of recovery of 10 Canadian dollars from another person Pritpal Singh. A direction was also given to SSP, Khanna, whether in the circumstances of the present case presentation of supplementary challan against the petitioner was warranted. On November 27, 2012, a report of the DSP was received to the effect that the prosecution agency intended to prosecute the petitioner by presenting supplementary challan against him. It is pertinent to observe here that the petitioner having surrendered before the CJM, Ludhiana in September 2012 has not returned back and has been appearing before this Court as well as before the Area Magistrate.
Learned counsel for the petitioner has submitted that the petitioner being an NRI, having returned from Canada and surrendered in the Court pursuant to the interim orders passed by this Court is being unnecessarily harassed for extraneous considerations despite the fact that no offence is made out against the petitioner. It was vehemently urged that the petitioner was neither found in actual physical possession of the alleged CRM M-19487 of 2012 [6] counterfeit 10 Canadian Dollars of denomination of 50 dollars each nor there is any proof collected by the prosecution agency that the Canadian Dollars were counterfeited currency notes.
Learned State counsel opposed the petition for quashing of FIR contending that the petitioner requires to be arrested and inquiry is to be conducted regarding the mode and manner in which the Canadian Dollars recovered from Pritpal Singh, his co-accused had been prepared and forged in the year 1999.
After hearing counsel for the parties, in order to satisfy the judicious conscious of this Court, a query was made regarding the status of the trial of Pritpal Singh. It was informed that Pritpal Singh, after having been convicted for offence under Section 489 C IPC had field a criminal appeal before this Court which is still pending as CRA No. S-2997-SB of 2009. In order to find out whether counterfeit currency recovered from co- accused Pritpal Singh, was as a matter of fact, actually forged or counterfeited, record of the trial Court in criminal appeal of Pritpal Singh was summoned. Without expression of any opinion on merits of the said appeal, it is interesting to note that recovery memo Ex.PA had been produced regarding recovery of the fake dollars. From the judgment, it appears that the fake dollars had been exhibited as Documents Ex.P.1 to Ex.P.10. In order to have a first hand knowledge about the counterfeited Canadian dollars, the original lower Court record was perused but surprisingly Exs. P.1 to P.10 were not found on the record of the lower CRM M-19487 of 2012 [7] Court. Even telephonic message was sent to the trial Court and a direction was given to the concerned criminal branch to check up the record to ensure that lower Court record contained all the exhibits. But Exs.P.1 to P.10 were not found in the lower Court record.
In order to satisfy my judicious conscious, the record of the police including police Register No.19 of Police Station concerned was called for. Ultimately from the police Malkhana 10 Red coloured notes purported to be Canadian dollars recovered in FIR No. 59 of 1999 were produced. All the ten red coloured notes appeared to be coloured Xeroxed copies of one note with number FMH 9367918. It does not stand explained by any one as to how the case property in a criminal decided case, without any exhibit or mark on it, went back in police malkhana.
Be that as it may, the sole question which is required to be determined is whether the prosecution agency, during the course of investigation, has been able to establish that dollars which were recovered from Pritpal Singh, were actually counterfeited currency notes. A statement of Gurvinderpal Singh, Senior Manager, Punjab National Bank CBOTF, Faridabad who appeared as PW 4 in the case State Vs. Pritpal Singh was carefully perused. The said witness had allegedly given a report that Canadian dollars were counterfeited dollars. The said witness refused to own any report alleged to have been taken by ASI Jaswant Singh from him. It is also important to note that no report had been placed by the Investigating officer on the case file. PW4 Gurvinderpal Singh was CRM M-19487 of 2012 [8] declared a hostile witness and was cross-examined. He refused to acknowledge the fact that statement mark A shown to him as Manager Foreign Exchange contained his signatures or that he had produced the said report before ASI Jaswant Singh. The statement of Gurvinderpal Singh, Senior Manager of Punjab National Bank recorded on December 1, 2009, in the Court is reproduced as under:--
"On 11.4.2000 I was posted as Manager, PNB, Foreign Exchange, International Banking Branch, Ludhiana. I do not remember if ASI Jaswant Singh produced before me 10 Canadian Dollars bearing No. FMH 9367918 in the denomination of 50 dollar. I also do not remember if any report was given by me in respect of said Canadian Dollars. No record is available in Punjab National Bank, Ludhiana in this respect. Such type of miscellaneous record is maintained only for the period of 8 years and after expiry of this stipulated period such record is destroyed. As such the office copy of said test report given by me in respect of the aforesaid dollars, if any cannot be produced in the court at this time by me. I also do not remember if ASI Jaswant Singh had recorded my statement in this case.
At this stage Ld. Addl. PP for State requested that the prosecution may be given time to bring on record the CRM M-19487 of 2012 [9] test report taken by ASI Jaswant Singh on 11.4.2000 from this witness.
Heard. Since neither the witness is owning any report alleged to have been taken by ASI Jaswant Singh from him nor such report has been placed by the IO on the case file of this case and further a fact that no such record is available in the bank. The request is not required to be allowed and as such its stands declined.
Ld. Addl. PP for State further, requested that since the witness has resiled from his statement recorded u/s 161 Cr.P.C. and suppressing the real facts of case as such he be declared hostile to the prosecution and prosecution be permitted to put such question as can only be put in the cross-examination. Request allowed.
Xxxx by Addl. PP for State.
I do not remember that statement Mark A was suffered by me in this case to ASI Jaswant Singh on 11.4.2000. It is wrong to suggest that I wrongly stated this fact that I do not remember that statement Mark A was suffered by me. I do not remember that I stated in my statement Mark A that on 11.4.2000 ASI Jaswant Singh produced before me 10 Canadian Dollars N. FHM- 9367918 recovered in this case or that I opined that the CRM M-19487 of 2012 [10] papers of these dollars were different and the same were found counterfeit. Attention of witness is drawn towards portion A to A1 of Statement Mark A where it is so recorded. I also do not remember that I stated in statement Mark A that at that time I was working as Manager Foreign Exchange for the last six years or that I was having an enough experience in dealing of foreign currency or that I had given a separate written report in this regard and the report was in my hand and bears my signatures or that report was produced by me before ASI Jaswant Singh. Attention of witness is drawn towards portion B to B1 of statement Mark A where it is so recorded. It is wrong to suggest that I intentionally and deliberated misstated the facts of this case."
A perusal of the abovesaid statement indicates that the prosecution agency has miserably failed to procure any evidence regarding counterfeited currency having been recovered from Pritpal Singh. There is absolutely no evidence available on the record of lower Court in case of Pritpal Singh that he had any connivance with the petitioner or that it was the petitioner who indulged in possession, user or tampering of the foreign currency. In order to determine whether the FIR against the petitioner and the criminal proceedings against him warrant quashing, has to be determined by a reference to the parameters laid down by the Apex Court in CRM M-19487 of 2012 [11] State of Haryana Vs. Bhajan Lal, AIR 1994 SC 604, wherein it has been laid down that in following categories of cases, High Court may in exercise of powers under Article 226 or under Section 482 Cr.P.C. may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases:-
"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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.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 non-
CRM M-19487 of 2012 [12] cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.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 motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The Apex Court in Central Bureau of Investigation Vs. Ravi Shanker Srivastava, IAS and another, 2006 (7) SCC 188, had observed as follows:-
CRM M-19487 of 2012 [13] "While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist.
In exercise of the powers the Court would be justified to quash any proceeding if it finds that initiation/ continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a compliant is sought to be quashed, it is permissible to look into the material to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. It is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal CRM M-19487 of 2012 [14] evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge."
Subsequently in Preeti Gupta and another Vs. State of Jharkhand and another, JT 2010 (8) SC 410, the Apex Court had again observed that the powers possessed by High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court's failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy. It was finally held in the said case that no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
In view of various authorities under Section 482 Cr.P.C., I am of the considered opinion that the extraordinary power under Section 482 Cr.P.C. can be exercised in following circumstances:-
CRM M-19487 of 2012 [15]
i) to prevent the abuse of process of Court;
ii) to otherwise secure the ends of justice;
iii) to give effect to an order under the criminal procedure code;
Applying the parameters of Bhajan Lal's case (supra) and the other cautions laid down by Apex Court, this Court is of the opinion that the FIR and the criminal proceedings against the petitioner are apparently an abuse of the process of the Court and in order to secure the ends of justice, the criminal proceedings deserves to be quashed, for the following grounds:-
i) The allegations in the FIR even if taken at its face value and accepted in entirety, do not prima facie constitute any offence or make out a case against the petitioner;
ii) The material collected during investigation and presented before the trial Court qua the co-accused of the petitioner does not disclose any cognizable offence having been committed by the petitioner justifying an investigation or prosecution of the petitioner;
iii) Uncontroverted allegations and the material collected during investigation does not disclose the commission of any offence by the petitioner.
CRM M-19487 of 2012 [16] The allegations in the FIR appear to be absurd and inherently improbable and insufficient for proceeding against the petitioner, criminal proceedings are apparently attended with malafide against the petitioner who is an NRI and has come to India all the way from Canada to surrender before the authorities of law.
In order to elaborate the abovesaid conclusions it will be relevant to refer to the allegations against the petitioner in the FIR;
i) As per the allegations in the FIR, the petitioner was not found in possession 10 Canadian dollars of denomination of 50 dollars each;
ii) The possession of alleged counterfeited currency
cannot be presumed to be in petitioner's
possession within the meaning of IPC, Section 27 of IPC reads as follows:-
"When property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of this Code.
Explanation: --A person employed temporarily or on a particular occasion in the capacity of a clerk CRM M-19487 of 2012 [17] or servant, is a clerk or servant within the meaning of this section.
It is not the case of the prosecution agency that Pritpal Singh, co-accused of the petitioner was employed by the petitioner and that the possession of any counterfeit currency with Pritpal Singh would be deemed to be the possession of petitioner.
There is no evidence gathered from the year 1999 till date regarding the 10 dollars recovered from Pritpal Singh of denomination of 50 each to be counterfeited. Section 489 A, 489 B and 489 C IPC is reproduced for ready reference:--
"Section 489A. Counterfeiting currency-notes or bank-notes:--Whoever counterfeits, or knowingly performs any part of the process of counterfeiting, any currency-note or bank-note, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation-For the purposes of this section and of sections 489B, [489C, 489D and 489E], the expression "bank-note" means a promissory note or engagement for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or under CRM M-19487 of 2012 [18] the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money.
Section 489 B:- Using as genuine, forged or counterfeit currency-notes or bank-notes:- Whoever sells to, or buys or receives from, any other person, or otherwise traffics in or uses as genuine, any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine Section 489C. Possession of forged or counterfeit currency-notes or bank-notes:- Whoever has in his possession any forged or counterfeit currency-note or bank-note, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
CRM M-19487 of 2012 [19] It is not out of place to refer to the provisions of Section 28 IPC which defies counterfeit. Section 28 IPC is reproduced as under:-
"Section 28. Counterfeit:- A person is said to "counterfeit" who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practiced.
Explanation 1. -It is not essential to counterfeiting that the imitation should be exact.
Explanation 2: -When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived thereby, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended by means of that resemblance to practice deception or knew it to be likely that deception would thereby be practiced."
It is neither the allegation of the prosecution that the petitioner indulged in counterfeited currency notes or he knowingly performed any part in the process of counterfeiting the Canadian dollars. No offence under Section 489 A IPC is thus made out. The petitioner had neither sold, bought or received from any person any counterfeit currency. He is also not alleged CRM M-19487 of 2012 [20] to have trafficking in used as genuine any currency note which was forged or counterfeited. No offence under Section 489 B IPC is thus made out. For attracting offence under Section 489 C IPC, following necessary ingredients are required to be proved:-
i) That the currency note was forged or
counterfeited;
ii) The accused was in actual physical possession of
the same;
iii) Accused at the time of his possession knew or had
reason to believe that it was forged or
counterfeited;
iv) The accused intended to use the counterfeited
currency as genuine or that it might be used as genuine;
In the present case, the recovery which was effected from Pritpal Singh has not been proved to be that of counterfeited Canadian dollars, as neither any report regarding currency notes being counterfeited has been procured nor the concerned expert i.e. officials of the bank has proved that the currency notes were counterfeited. In this respect, the statement of PW4 reproduced hereinabove during the trial in case of Pritpal Singh can be referred to.
Admittedly, the petitioner was not in possession of the alleged counterfeited currency notes. There is not even an allegation against the CRM M-19487 of 2012 [21] petitioner that he, in any manner, intended to use it as genuine or that it could have been used as genuine in India.
In view of above discussion, I am satisfied that the FIR does not disclose commission of any offence by the petitioner. If all the allegations against the petitioner are presumed to be correct, the only part which can be attributed to the petitioner that he escaped on seeing the police. State counsel has not been able to show that such an act would constitute an offence.
Taking into consideration the above said circumstances, I deem it appropriate to exercise inherent jurisdiction in the present case to prevent the abuse of process of the Court and to secure the ends of justice by quashing the FIR and criminal proceedings against the petitioner besides setting aside the order declaring him proclaimed offender which has become infructuous by petitioner having already put in appearance before the trial Court. The petitioner, if not involved in any criminal case, is permitted to leave India. He is absolved of the liabilities of the interim bail bonds furnished by him pursuant to the interim orders passed by this Court.
Disposed of.
January 8, 2013 (M.M.S.BEDI) sanjay JUDGE