Madras High Court
S.Babu vs The State Of Tamil Nadu
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 24.07.2019
PRONOUNCED ON: 28.08.2019
CORAM:
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.OP.Nos.9458 and 10039 of 2019
1. S.Babu Petitioner/A1-Crl.OP.9458/2019
2. K.Senthilkumar Petitioner/A2-Crl.OP.10039/2019
Vs
1. The State of Tamil Nadu, by the
Deputy Superintendent of Police,
Vigilance and Anti-corruption, Villupuram
2. B.Muthukumar Respondents/ Complainants
Prayer:- These Criminal Original Petitions are filed under Section 482 of Cr.PC
to call for the records in the First Information Report in Crime No.18/AC/2018,
dated 10.09.2018, on the file of the 1st Respondent, the Deputy Superintendent
of Police, Vigilance and Anti Corruption, Villupuram and to the quash the same.
For Petitioners : Mr.Singaravelan, SC for Ms.S.Sujatha
For Respondents : Mr.K.Prabakar-APP-R1
COMMON ORDER
1. These Criminal Original Petitions have been filed, seeking to quash the First Information Report in Crime No.18/AC/2018, dated 10.09.2018, on the file of the 1st Respondent, the Deputy Superintendent of Police, Vigilance and Anti- Corruption, Villupuram.
2. The facts, leading to filing of these Criminal Original Petitions, are as follows:-
http://www.judis.nic.in 2
a) There are two accused persons in this case, namely, the Petitioners/A1 and A2. The Petitioner/A1 is the Motor Vehicle Inspector Grade I. The Petitioner/A2 herein is an Astrologer, by profession and a family friend of the Petitioner/A1. The 1st Respondent had registered the impugned First Information Report in Crime No.18/AC/2018, 10.09.2018, against the Petitioners/A1 and A2, for the offence under Section 7 of the Prevention of Corruption Act, 1988, with regard to demand and acceptance of illegal gratification of a sum of Rs.25,000/-, by the Petitioners/A1 and A2, to issue the Renewal of the Fitness Certificate, for the Maxi Cab Vehicle, bearing Registration No.TN-31-AY-0678.
b) It is alleged in the impugned First Information Report that on 10.09.2018 at about 14.00 hours, when the Deputy Superintendent of Police, Vigilance and Anti-Corruption, Villupuram was in his Office, the 2nd Respondent herein/ defacto complainant, had given a computer typed complaint, stating that he has been running a Driving School, in the name of ''Vallimurugan Driving School'' and he has been rendering services to the people to get Driving License, after giving them necessary training in driving or to renew the Driving License or renew the Fitness Certificate and that on 07.09.2018, one Ramesh of Koothakudi Village, had approached him to get the Renewal of the Fitness Certificate, for his own Vehicle Maxi Cab, bearing Registration No.TN-
31-AY-0678, for the year 2018-2019 and the 2nd Respondent had approached the Petitioner/A1, Motor Vehicle Inspector Grade I, seeking renewal of FC and the Petitioner/A1 had demanded a sum of Rs.25,000/- http://www.judis.nic.in 3 towards illegal gratification and that the 2nd Respondent stated that after arranging the money from Ramesh, he will come back to the Petitioner/A1 and that the 2nd Respondent told Ramesh, about the demanding of money by the Petitioner/A1. It is further alleged in the First Information Report that Ramesh told that since he was not willing to give the said amount, a complaint can be given to the 1st Respondent. On the basis of the above said complaint, dated 10.09.2018, received at 14.00 hours, the above FIR in Crime No.18/AC/2018, dated 10.09.2018, was registered at 20.00 hours, for the offence under Section 7 of the Prevention of Corruption Act, 1988. In the trap proceedings, on 11.09.2018, the Petitioners/A1 and A2 were arrested and remanded to judicial custody. Hence, these Criminal Original Petitions have been filed, seeking the reliefs as stated above.
3. Apart from the above facts, leading to filing of these Criminal Original Petitions, in order to thrash out the impugned First Information Report, the Petitioners/A1 and A2 has raised the following averments and grounds, in the affidavits filed in support of these Criminal Original Petitions:-
a) There was unexplained delay in preferring the complaint by the defacto complainant and registering the First Information Report as well. Though it was alleged that the Petitioner/A1 had demanded the money on 07.09.2018, the complaint had been preferred, after a delay of three days, on 10.09.2018 at 14.00 hours and the First Information Report was registered at 20.00 hours. Such a delay had occurred only because of the deliberations the complainant had with the Trap Team, by http://www.judis.nic.in 4 collusion, due to previous animosity.
b) The impugned complaint is bereft of exact facts and the facts stated in the complaint are factually incorrect, as the Vehicle in question, namely, Maxi Cab, bearing Registration No.TN-31-AY-0678 is not owned by Ramesh, who was termed in the complaint and in the First Information Report, as owner of the Vehicle in question. The Vehicle in question is actually owned by some other person, P.Subramanian.
c) As on the date of the alleged occurrence on 07.09.2018, on which date, the said Ramesh had approached the defacto complainant, to arrange for renewal of the Fitness Certificate and as on the date of the computer typed complaint given by B.Muthukumar and the First Information Report, dated 10.09.2019, there was no application for renewal of Fitness Certificate in the name of Ramesh, received or pending on the file of the Office of the Petitioner/A1. Hence, it is incorrect to say that the Petitioner/A1 demanded money for renewal of the Fitness Certificate in the name of Ramesh, in the absence of any such application being filed in the name of Ramesh.
d) Though Ramesh is the person, who was the cause for the complaint, the complaint has not been filed by him. The complaint had been filed by B.Muthukumar, who is in no way connected with the Vehicle in question. The averment in the complaint and in the First Information Report that said B.Muthukumar had told to Ramesh that if you give the money to the Petitioner/A1, he would not accept, itself, would go to show the nexus between the Petitioner and B.Muthukumar, in the business transactions, http://www.judis.nic.in 5 in which there was a previous enmity arisen between them, due to which, the complaint had been foisted falsely.
e) The actual owner of the Vehicle in question is one P.Subramanian. Only after the arrest of the Petitioner on 11.09.2018, in the Trap Proceedings, the necessary fee was paid for FC of TN-31-AY-0678, owned by P.Subramanian and only on 27.09.2018, the application for renewal of FC was given and on the same date, FC was given, which is unbelievable.
f) The Report, dated 13.12.2018 obtained under the Right to Information Act, revealed that the permit was not at all alive and the necessary insurance was also not renewed for the vehicle in question. Hence, the story of the complainant that the Petitioner/A1 had demanded bribe for a Vehicle, which has no tax, permit and insurance, is a concocted one. There was also non application of mind on the part of the Respondent in not considering those aspects and in not verifying the actual facts, particularly, as to who is the owner of the Vehicle, for which, renewal of Fitness Certificate was sought for.
g) In the trap proceedings, on 11.09.2018, B.Muthukumar, gave a cover to the Petitioner/A1 and the Petitioner/A1 opened it and after finding that currency notes to the extent of Rs.2000/- were found inside, he had given back the cover. When the cover was again given back to B.Muthukumar, he had thrown the cover near the seat of the Petitioner/A1 and the currency notes inside the cover were got spilled over the floor and the Petitioner/A2, family friend and astrologer, who http://www.judis.nic.in 6 came to see the Petitioner/A1, picked those currencies.
h) Without even verifying the fact that the Vehicle was not owned by Ramesh and was owned only by some other person, P.Subramanian and whether there was any such application, pending in the name of Ramesh, the Prosecution had lodged the First Information Report.
i) As as on the date of filing of this Criminal Original Petition, no final report was filed nor any investigation was conducted nor any witness was examined nor any mahazar was prepared nor any statement was recorded from any witness. For the best reasons best known to the Respondent, without progressing any further in the matter, they are protracting the matter in order to harass the Petitioner.
j) Except the Petitioner/A1 herein, no other person is named in the complaint or in the First Information Report. The name of the Petitioner/A2 is not all mentioned either in the complaint or in the First Information Report. The Petitioner/A2 is not a Government Servant to attract Section 7 of the Prevention of Corruption Act, 1988. In the absence of any allegation made against the Petitioner/A2, the arrest of the Petitioner/A2 is illegal.
k) In respect of the Vehicle in question, from 01.09.2018 to 10.09.2018, in the Office of the Motor Vehicles Inspector, Kallakurichi, there was no application for renewal of Fitness Certificate, received or pending in the name of Ramesh, Koothakudi Village, Kallakurichi Taluk. In respect of the Vehicle in question,, from 01.09.2018 to 10.09.2018, in the Office of the Motor Vehicles Inspector, Kallakurichi, there was an application, http://www.judis.nic.in 7 dated 27.09.2018, by some other person, by name, P.Subramanian, made to the Motor Vehicle Inspector, V.Sathya, and renewal for Fitness Certificate was given for the said Vehicle. In respect of the Vehicle in question, there was no permit alive as on 10.09.2018, as per the proceedings, dated 27.09.2018. Insurance Policy was also not alive for the said Vehicle.According to the CFRA (Application for Renewal of Certificate of Fitness), in respect of Vehicle in question, P.Subramanian had signed in the said application and P.Subramanian is the owner and on 27.09.2018, the Renewal of Fitness Certificate was issued in respect of the Vehicle in question.
l) Only after arrest of the Petitioner on 11.9.2018, necessary fee was paid for renewal of Fitness Certificate for the Vehicle in question. It is unbelievable that on the day of applying itself, the Renewal of Fitness Certificate was issued in respect of the Vehicle in question. That is to say, the application was made on 27.09.2018 and by proceedings dated 27.09.2018, the Vehicle in question was issued with the renewal of Fitness Certificate.
m) A Person, who is running a Driving School, cannot apply for renewal of Fitness Certificate in respect of a Vehicle belonging to some other person. Since it came to light that the complainant was receiving amounts for renewal of Fitness Certificate from the other vehicle owners, it was warned by the Petitioner and hence, having grudge over the Petitioner/A1, the complaint has been lodged, with non existent facts and incorrect facts, that too for a Vehicle, not having permit, tax and http://www.judis.nic.in 8 insurance. If the First Information Report is on the basis of any non existent (or) incorrect facts, it cannot be proved (or) developed or altered later and on that ground also, the First Information Report is liable to be quashed. If the FIR is not quashed, the Petitioner will be put to irreparable loss and grave hardship.
4. On behalf of the 1st Respondent, in these Criminal Original Petitions, separate counters, refuting the grounds raised in the affidavits filed in support of these Criminal Original Petitions, have been filed. In the counters, the following grounds and averments have been made:-
a) The 2nd Respondent/ the defacto complainant is running a Driving School in the name of Valliammal Driving School at Kallakurichi. One Ramesh, brother-in-law of the defacto complainant, had purchased a Mahindra Maxi Cab Vehicle, having Regn.No.TN-31-AY-0678, during July 2018 from one Subramanian through a Financier, at Vridhachalam.
However, he has not got the ownership of the said vehicle, by transfer from the said Subramanian, but got his signature in a TO Form. The FC was due on 03.08.2018 and Ramesh had approached the defacto complainant, who is a close relative to assist him in getting the FC renewal and handed over the vehicle and all necessary papers to him. On 07.09.2018 at about 11.00 hours, at MVI Unit Office, Kallakurichi, when the defacto complainant approached the Petitioner/A1, he had instructed the defacto complainant to pay all the pending fees and also demanded an undue advantage of Rs.25,000/- from him for doing his part in the said work and instructed to bring the said amount at the time http://www.judis.nic.in 9 of submitting the CFRA Form.
b) After consulting with the vehicle owner on 09.09.2018, the defacto complainant had lodged a complaint at about 14.00 hours on 10.09.2018 and after making a quick preliminary verification, an FIR in Cr.No.18 of 2018 under Section 7 of the Prevention of Corruption (Amendment) Act, 2018 was registered at about 08.00 p.m. on 10.09.2018. On 11.09.2018, after completion of formalities of pre-trap procedures, including drawing of an entrustment mahazar, the trap team arrived in the vicinity of the office of the accused and the defacto complainant accompanied by the shadow witness went to meet the accused at about 11.10 am. Between 11.20 am and 11.40 am, when the defacto complainant along with the shadow witness met the accused, the accused after receipt of application, demanded and obtained Rs.25,000/- as undue advantage and handed over the said illegal gratification to one Senthilkumar, the Petitioner/A2, an unofficial Assistant, who was present there. The Petitioner/A2 received the illegal gratification and after counting it using his both hands, placed it in his back side pant pocket.
c) On noticing the pre-arranged signal, the Trap Laying Officer enquired both the defacto complainant and the shadow witness and conducted the phenolphthalein test to the right hand of the the Petitioner/A1 and both hands of the Petitioner/A2 and pant pocket of A2 and collected the washes and tainted money and completed all formalities including drawing up of a seizure mahazar. On enquiry, the Petitioner/A1 admitted http://www.judis.nic.in 10 the obtainment of illegal gratification and the Petitioner/A2 admitted that he received the illegal gratification from the Petitioner/A1 and that he has been working as an unofficial Assistant to the Petitioner/A1.
d) When a house search was made in the house of the Petitioner/A1, an unaccounted wealth of cash of Rs.30,17,000/-, gold jewelry weighing 12970.500gms, silver weighing 32128.020 gms, property documents and other valuables were found. In the house of the Petitioner/A2, a fake ID Card, showing as if A2 has been working as an Assistant to A1. But, on investigation, A2 was not officially employed. When the washes of the hands of the accused and pant pocket were subjected to analysis by forensic lab, it showed positive result for phenolphthalein and investigation is going on. There are no legal grounds raised by the Petitioners/A1 and A2 to quash.
e) The delay in lodging the complaint alone cannot be a ground to quash the impugned First Information Report. The complaint was followed by a successful trap and recovery of tainted money. It is obvious that the FIR cannot be an encyclopaedia. The statement of the de-facto complainant recorded under Section 161 of Cr.PC, which was despatched well before filing of the petition would show a clear picture. Ramesh had purchased a vehicle in July 2018 through a Financier from Virudhachalam and got the signature of the said Subramainan in T.O. Form. So there is no change of name in the records of MVI Office. These details would be revealed only during trial.
f) There must be some evidence which may appear at any stage of http://www.judis.nic.in 11 investigation that prima facie shows that the Petitioner/A2 committed cognizable offence and it is enough to brand him as an accused. There is nothing in Law, which make the pendency of the application for the discharge of any official duty as precondition for the commission of the offence. Section 7(a) makes it clear that if the public servant attempt to obtain the undue advantage with the intention to perform the public duty, then it is enough to constitute an offence. There is not even iota of evidence for the animosity portrayed by the petitioner and hence, it is absolutely false.
g) The de-facto complainant, being the owner of the driving school, he used to help people in getting Driving Licence, FC and further he is the close relative of the said Ramesh. The perusal of complaint and the statement of de-facto complainant recorded under Section 161 of Cr.PC. reveal all these things.
h) Well before date of occurrence i.e. in the month of July itself, Ramesh had purchased the vehicle and got the signature in T.O. Form. The statement of the de-facto complainant recorded u/s 161 Cr.P.C shows that he paid the fees before the trap and submitted the application, but the application was seized by the TLO during trap proceedings and the transport department had processed the said application only after the trap. When both the accused were examined by the Investigating Officer, they merely denied their part and unable to explain completely the cause for the positive result of phenolphthalein tests.
i) Above all, the fake ID card seized from the house search of A2's house http://www.judis.nic.in 12 showing apparently as though he was working as an assistant to A1 is the last nail upon the coffin of the defence theory. The house search made at the A1's residence followed by his trap proceedings exposed a huge seizure of 12970.500 gms of Gold, 32128.020 gms of Silver, hot cash of Rs.30,17,000/-, bank deposits of Rs.51,62,113.67 lakhs in 21 number of bank accounts and 40 number of Insurance Policies. Based on the above outcome, separate proposal for taking action for possession of Disproportionate Assets was initiated and the process is going on.
j) Only after approval from the Superior Officer and only after obtaining sanction, the final report could be filed. The trap proceedings was successfully conducted and the investigation revealed that there is a clinching evidence for a prima facie case. A2 is none other than an unofficial aide of A1 and the same was proved by the positive result of Phenolphthalein test and recovery of fake ID card.
k) The information obtained by the Petitioners by means of an RTI application and narrated as (I) to (V) of ground (r) are in no way affect the prosecution case. Even before the trap proceedings and before the receipt of application and tainted money by the accused, the de-facto complainant had paid the necessary fees, but owing to Internet problem, he was unable to get receipt, but later he got the receipt and all these facts are revealed in the statement of the de-facto complainant.
l) The de-facto complainant with an intent to help the owner of the vehicle, Ramesh, approached the 1st accused and he did not apply for renewal, http://www.judis.nic.in 13 but only on the request of the said Ramesh, he had done everything as he is a close relative. The de-facto complainant knows the details of the ownership of the vehicle. The First Information Report is based upon real facts which is proved by subsequent successful trap and investigation. The FIR disclose cognizable offences.
m) In view of the grounds narrated supra supported by the relevant law, it is submitted that these Criminal Original Petitions are liable to be dismissed.
5. This court heard the submissions of the learned counsel on either side.
6. The learned counsel for the Petitioners, vehemently assailing the impugned First Information Report, has raised the following grounds to quash the same:-
(a) The first and foremost ground is the delay in preferring the complaint and registering the First Information Report as well, inasmuch as though the Petitioner/A1 had demanded the money on 07.09.2018, the complaint had been preferred, after a delay of three days, on 10.09.2018 at 14.00 hours and the First Information Report was registered at 20.00 hours.
There is no explanation for such a delay, which occurred only because of the deliberations between the complainant and the Trap Team. Even in the First Information Report, it is stated that the delay was due to the complainant.
(b) The impugned complaint made by the 1st Respondent/ defacto complainant Mr.B.Muthukumar is bereft of exact facts and the facts stated in the complaint are factually incorrect, as the Vehicle in question, http://www.judis.nic.in 14 namely, Maxi Cab, bearing Registration No.TN-31-AY-0678 is not owned by Ramesh, who was termed in the complaint and in the First Information Report, as owner of the Vehicle in question. The Vehicle in question is actually owned by some other person, P.Subramanian, S/o.Perumal. Hence, the First Information Report itself is tainted with mala fides.
(c) Except the Petitioner/A2 herein, no other person is named in the complaint or in the First Information Report. The allegations made in the FIR or complaint are inherently improbable.
(d) As on the date of the alleged occurrence on 07.09.2018, on which date, the said Ramesh had approached the said B.Muthukumar, to arrange for renewal of the Fitness Certificate and as on the date of the computer typed complaint given by B.Muthukumar and the First Information Report, dated 10.09.2019, there was no application for renewal of Fitness Certificate in the name of Ramesh, received or pending on the file of the Office of the Petitioner/A1 and hence, the Petitioner could not have demanded money
(e) There might be a previous enmity between the Petitioner and the complainant, since there was a nexus between the business of the complainant, namely, the Driving School and the Petitioner/A1, who was the Motor Vehicles Inspector. Though Ramesh is the person, who was the cause for the person, the complaint has not been filed by him. The complaint had been filed by the 2nd Respondent/B.Muthukumar.
(f) The averment in the complaint and in the First Information Report that said B.Muthukumar had told to Ramesh that if you give the money to the http://www.judis.nic.in 15 Petitioner/A1, he would not accept, itself, would go to show the nexus between the Petitioner/A1 and B.Muthukumar, in the business transactions, in which there was a previous enmity arisen between them.
(g) The actual owner of the Vehicle in question, bearing Reg.No. TN-31-AY- 0678 is one P.Subramanian. Only after the arrest of the Petitioner on 11.09.2018, in the Trap Proceedings, the necessary fee was paid for FC of TN-31-AY-0678, owned by P.Subramanian and only on 27.09.2018, the application for renewal of FC was given and on the same date, FC was given, which is unbelievable.
(h) Admittedly, no application for the renewal of FC for the Maxi Cab TN-31- AY-0678 owned by Ramesh was received or pending, on the file of the Office of the Petitioner/A1, as on the date of the complaint and the First Information Report, both dated, 10.09.2018.
(i) As per the Motor Vehicles Rules, before applying for renewal of FC, for a particular Vehicle, the permit, tax and insurance should have been cleared and should be alive as on the date of filing the application for the renewal of FC. In the absence of any existing permit, tax and insurance, no application could have been entertained for renewal of FC and it would be rejected. In this regard, the Report, dated 13.12.2018 obtained under the Right to Information Act, revealed that the permit was not at all alive and the necessary insurance was also not renewed for the vehicle in question. Even assuming that if any such application would have been preferred or pending, in the absence of necessary permit, tax and insurance, the application would have been rejected by the Authorities http://www.judis.nic.in 16 concerned. Hence, the story of the complainant that the Petitioner had demanded for a Vehicle, which has no tax, permit and insurance, is a concocted one, on an imaginary application. There was also non application of mind on the part of the Respondent in not considering those aspects and in not verifying the actual facts, particularly, as to who is the owner of the Vehicle, for which, renewal of Fitness Certificate was sought for.
(j) In the trap proceedings, on 11.09.2018, the 1st Respondent, gave a cover to the Petitioner and the Petitioner/A1 opened it and after finding that currency notes to the extent of Rs.2000/- were found inside, he had given back the cover. When the cover was again given back to B.Muthukumar, he had thrown the cover near the seat of the Petitioner/A1 and the currency notes inside the cover were got spilled over the floor and the Petitioner/A2, who is an astrologer, who came to see the Petitioner, picked those currencies. At that time, the Trap Team and officials of the Respondent entered into the scene of occurrence and arrested both of them.
(k) The investigation was not at all done by the Respondent in a proper manner, by following the procedures contemplated. As as on the date of filing of this Criminal Original Petition, no final report was filed nor any investigation was conducted nor any witness was examined nor any mahazar was prepared nor any statement was recorded from any witness. For the best reasons best known to the Respondent, without progressing any further in the matter, they are protracting the matter in http://www.judis.nic.in 17 order to harass the Petitioners, which is not permissible under Law.
(l) Further, the Petitioner/A2, whose name is not at all mentioned in the First Information Report, was also arrested, in the absence of any such allegation made against him in the complaint.
(m) The Petitioner/A2, is not a Government Servant at all and hence, the provisions of Section 7 of the Prevention of Corruption Act, 1988 would not get attracted against him.
(n) As per the Report, dated 13.12.2018, obtained under the Right To Information Act, in respect of the Vehicle in question, bearing Reg.No.TN-31-AY-0678 MAXI CAB, from 01.09.2018 to 10.09.2018, in the Office of the Motor Vehicles Inspector, Kallakurichi, there was no application for renewal of Fitness Certificate, received or pending in the name of Ramesh, Koothakudi Village, Kallakurichi Taluk, but there was an application, dated 27.09.2018, by some other person, by name, P.Subramanian, made to the Motor Vehicle Inspector, V.Sathya, and renewal for Fitness Certificate was given for the said Vehicle. There was no permit alive as on 10.09.2018, as per the proceedings, dated 27.09.2018 and the Insurance Policy was also not alive for the said Vehicle. Only P.Subramanian had signed in the said application and P.Subramanian, Son of Perumal, No.131, Kaachakudi, Kallakurichi Taluk, is the owner and on 27.09.2018, the Renewal of Fitness Certificate was issued in respect of the Vehicle in question.
(o) Only after arrest of the Petitioner on 11.9.2018, necessary fee was paid for renewal of Fitness Certificate for the Vehicle in question. The http://www.judis.nic.in 18 application was made on 27.09.2018 and by proceedings dated 27.09.2018, the Vehicle in question was issued with the renewal of Fitness Certificate. Hence, it is unbelievable that on the day of applying itself, the Renewal of Fitness Certificate was issued in respect of the Vehicle in question.
(p) In order to renew the Fitness Certificate, the permit, tax and insurance and pollution certificate should have been alive and necessary fee should also have been paid and only on satisfying the said conditions, the Vehicle could be renewed or otherwise it should be rejected. But, the Vehicle in question did not have permit, tax and insurance, at the relevant point of time. For such Vehicle, not having permit, tax and insurance, the Petitioner/A1 could have demanded money for renewal of FC and hence, the complaint is a false one.
(q) As per the Motor Vehicles Rules, a Person, who is running a Driving School, cannot apply for renewal of Fitness Certificate in respect of a Vehicle belonging to some other person. Since it came to light that the complainant was receiving amounts for renewal of Fitness Certificate from the other vehicle owners, it was warned by the Petitioner/A1 and hence, having grudge over the Petitioner/A1, the complaint has been lodged, with non existent facts and incorrect facts. Without knowing the details of the owner of the Vehicle in question, the complaint has been filed mechanically and without application of mind, which would amount to abuse of process of court and mockery of justice. If the First Information Report is on the basis of any non existent (or) incorrect http://www.judis.nic.in 19 facts, it cannot be proved (or) developed or altered later.
(r) In support of his contentions, the learned counsel for the Petitioner would rely on the following decisions:-
1. 2006 2 SCC 250 (Om Prakash v. State of Haryana),
2. 2012 (1) MWN (Cr.) 448, (R.Venkatraj v. State)
3. AIR-2007-SC-3234 (Dilawar Singh Vs. State of Delhi)
4. 2017 9 SCC 641 (Parbatbhai Aahir V. State of Gujarat)
5. AIR (1992) SC 604 (State of Haryana Vs. Bhajan Lal)
6. 2005 Crl.LJ 4653 (M.Kulkarni Vs. State of Maharashtra)
7. 2006 2 SCC 250 (Om Prakash v. State of Haryana)
8. Thulia Kali Vs. The State of Tamil Nadu (AIR-1973-SC-501)
9. Ram Jag and others Vs. The State of UP (AIR-1974-SC-606)
10. 2005 Crl.LJ 4653 (M.Kulkarni Vs. State of Maharashtra)
11. K.Ramakrishnan Vs. State of Bihar (2000-8-SCC-547)
12. State of Karnataka v. L. Muniswamy, MANU/SC/0143/1977 : (1977) 2 SCC 699
13. 1960-SC-866 (R.P.Kapur Vs. State of Punjab)
14. State of Karnataka Vs. Munusamy (1977-2-SCC-699)
15. (1977) 4 SCC 358 Basavva Kom Dyamangouda Patil Vs. State of Mysore
16. AIR 2003 SC 638 Sundarbhai Ambalal Desai Vs. State of Gujarat
17. 2017 9 SCC 641 (Parbatbhai Aahir V. State of Gujarat)
18. AIR (1992) SC 604 (State of Haryana Vs. Bhajan Lal)
19. Rashmi Chopra and Ors. vs. The State of Uttar Pradesh and Ors. (30.04.2019 - SC) : MANU/SC/0625/2019
20. 2005 Crl.LJ 4653 (M.Kulkarni Vs. State of Maharashtra
21. Vineet Kumar and Others vs. State of Uttar Pradesh and Another, (2017) 13 SCC 369
22. Rajiv Thapar and Ors. v. Madan Lal Kapoor MANU/SC/0053/2013 :
(2013) 3 SCC 330
23. AIR 2019 SC 535 (Suresh Kumar Goyel Vs. State of UP)
7. The learned counsel for the Petitioners would ultimately and vehemently contend that in view of the above law laid down by the Honourable Supreme Court, grounds and infirmities and since the criminal proceedings, based on non-existent and incorrect details, initiated against the Petitioners is tainted with mala fides and is maliciously instituted, the impugned First Information Report has no legs to stand and hence, it is liable to be quashed.
http://www.judis.nic.in 20
8. On the other hand, the learned Additional Public Prosecutor for the 1st Respondent, reiterating the facts and grounds, as stated in the counter affidavits, would submit that the grounds raised by the Petitioners/ accused are relating to disputed question of facts and that though the vehicle in question is in the name of P.Subramanian, it had been purchased by Ramesh. He would further submit that based on the complaint given by the 2nd Respondent, the defacto complainant, the trap was laid and pursuant to the trap, the Petitioners were caught red handed and arrested, while accepting the bribe amount and the phenolphthalein tests had also turned positive in respect of the Petitioners/ accused. He would further submit that pursuant to the trap, a house search was conducted and during the house search, unaccounted huge money and jewels were recovered and the investigation is pending and that at this stage, it would not be proper for this Court to interfere and quash the impugned First Information Report.
9. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgement of conviction.
10.Before adverting to analyse the grounds raised by the learned counsel on either side, it is relevant to refer to provision of law. Section 482 of Cr.PC reads as follows;-
“482.Saving of inherent powers of High Court.—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
11.Section 7 of the Prevention of Corruption Act, 1988 reads as follows:-
http://www.judis.nic.in 21 “7. Offence relating to public servant being bribed:- Any public servant who,
(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue advantage, from any person as a reward for the improper and dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or
(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall be not less than three years but which may extend to seven years and shall also be liable to fine.”
12.The Honourable Supreme Court, in a catena of decisions, has laid down the scope and ambit of the High Court's power under Section 482 of Cr.PC. The power under Section 482 of Cr.PC is wide, but has to be exercised with great care and caution. The interference must be on sound principle and the inherent power should not be exercised to stifle the legitimate Prosecution. Inherent power under Section 482 of Cr.PC though wide has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this Section itself. The authority of the Court exists for advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers in the absence of specific provisions in the Statute.
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13.The principles, relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by the Honourable Supreme Court in its several decisions. A few of them are Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre (1988 (1) SCC 692), State of Haryana vs. Bhajanlal (1992 Supp (1) SCC 335), Rupan Deol Bajaj vs. Kanwar Pal Singh Gill (1995 (6) SCC 194), Central Bureau of Investigation v. Duncans Agro Industries Ltd., (1996 (5) SCC 591), State of Bihar vs. Rajendra Agrawalla (1996 (8) SCC 164), Rajesh Bajaj v. State NCT of Delhi, (1999 (3) SCC 259), Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. (2000 (3) SCC 269), Hridaya Ranjan Prasad Verma v. State of Bihar (2000 (4) SCC 168), M. Krishnan vs Vijay Kumar (2001 (8) SCC 645), and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005 (1) SCC 122). The principles, relevant to this purpose are:-
i. A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
ii. A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
iii. The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and http://www.judis.nic.in 23 with abundant caution.
iv. The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
v. (v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”
14.In the case on hand, the allegation against the Petitioners/A1 and A2 is under Section 7 of the Prevention of Corruption Act, 1988, viz. demand and acceptance of illegal gratification other than legal remuneration in respect of an official act.
15.The averments in the impugned First Information Report are as follows:-
“On 10.09.2018 at about 14.00 hours, while I was in my Office, one Tr.B.Muthukumar, S/o.Balasubramanian, a resident of 1/127, Main Road, Koothagudi Village and Post, Kallakurichi Taluk, Villupuram District approached my detachment office and lodged a computer typed complaint, which reads as follows:-
@mDg;g[eh; B.Kj;JFkhh;. taJ 39-18. j-bg/ G.ghyRg;gpukzpad;. be/1-
127. bkapd; nuhL. Tj;jFo fpuhkk; & m";ry;. fs;sf;Fwpr;rp tl;lk;. tpGg;g[uk;
khtl;lk; bgWeh; fhty; Jizf; fz;fhzpg;ghsh; mth;fs;. CHy; jLg;g[ kw;Wk; fz;fhzpg;g[ gphpt[. tpGg;g[uk;. ma;ah ehd; nkw;fz;l Kfthpapy; trpj;J tUfpnwd;/ fs;sf;Fwpr;rp jpahfJUfk; rhiyapy; ts[;sp KUfd; oiutp'; !;Ty; vd;w Xl;Leh; gapw;rp gs;sp elj;jp tUfpnwd;/ vdJ gapw;rp ikak; rhh;ghf bghJ kf;fSf;F thfdk; Xl;l gapw;rp tH';Fjy; Xl;Leh; chpkk; bgw;W ju cjt[jy;. thfdk; http://www.judis.nic.in 24 jFjpr;rhd;W g[Jg;gpj;J ju cjt[jy; nghd;w gzpfis bra;J tUfpnwd;/ mJ nghd;W Tj;jFo fpuhkj;ijr; nrh;e;j unkc&; vd;gtUf;F brhe;jkhd TN 31 AY 0678 vd;w vz;Qqs;s MAXI CAB thfdj;ij 2018=2019 Mk; Mz;ow;fhd jFjpr;rhd;W g[Jg;gpj;J ju ntz;o fle;j 07/09/2018e; njjp vd;id mDfpdh;/ mjd;go ehd; md;nw nkw;go thfdk; g[Jg;gpj;jy; jFjpr;rhd;W rk;ke;jkhf ehd; fs;sf;Fwpr;rp nkhl;lhh; thfd Ma;thsh; mYtyfj;jpw;F brd;W m';fpUe;j nkhl;lhh; thfd Ma;thsh; jpU/ghg[ mth;fsplk; nfl;lnghJ U:gha; 25.000-= y”;rkhf bfhLj;jhy;jhd; thfdj;ij jFjpr;rhd;W g[Jg;gpj;J tH';fKoa[k; vd fwhuhf Twpdhh;/ mjw;F ehd; mthplk; thfd chpikahshplk; tptuj;ij Twp gzj;ij buo bra;J bfhz;L tUtjhf Twptpl;L gapw;rp gs;spf;F te;Jtpl;nld;/ mjd; gpwF thfd chpikahsh; unkc&; mth;fsplk; thfdk; jFjpr;rhd;W g[Jg;gpj;J tH';f nkhl;lhh; thfd Ma;thsh; y”;rk; nfl;Fk; tptuj;ij brhd;ndd;/ mjw;F mth; y”;rk; bfhLf;f tpUg;gkpy;iy vd bjhptpj;J y”;r xHpg;g[ Jiwapy; g[fhh; bfhLf;fyhk; vd;W Twpdhh;/ mjw;F ehd; eP';fs; gzk; bfhLj;jhy; nkhl;lhh; thfd Ms;thsh; th';fkhl;lhh; vd unkc&plk; Twpajw;F ntz;Lbkd;why; vdf;fhf jh';fns y”;r xHpg;g[j;Jiwapy; g[fhh; bfhL';fs; vd;Wk; nkhl;lhh; thfd Ma;thsh; nfl;Fk; y”;rj;bjhifia ehd; bfhLf;fpd;nwd; vd Twpdhh;/ mjw;F ehd; rk;kjk; bjhptpj;J thfdk; jFjpr;rhd;W g[Jg;gpj;J tH';f U:/25.000-= y”;rk; nfl;Fk; nkhl;lhh; thfd Ma;thsh; jpU/ghg[ kPJ chpa eltof;if nkw;bfhs;s ntz;Lkha; gzpt[ld; nfl;Lf;bfhs;fpnwd;/ xg;gk; ( B.Kj;JFkhh;) ,lk; tpGg;g[uk; ehs; 10/09/2018@/
16.A criminal proceedings for offence, which fall in category of heinous and serious offences and had a serious impact on society, could not be quashed in exercise of powers under Section 482 of Cr.PC. Definitely the offence of demand and acceptance of bribe is heinous and serious offence and will have a serious impact on Society.
17.A bare perusal of Section 482 CrPC makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of court and to secure ends of justice. There are no hard-and-fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straitjacket formula nor defined parameters to enable a court to invoke http://www.judis.nic.in 25 or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The courts have to be very circumspect while exercising jurisdiction under Section 482 CrPC.
18. The grounds raised by the learned counsel for the Petitioners/A1 and A2 are that there was unexplained delay in preferring the complaint and registering the First Information Report. The impugned complaint made by the 1st Respondent/ defacto complainant is bereft of exact facts, regarding the ownership of the Vehicle in question. The Petitioner/A2 is not the named person and there is no complaint against him. There was no application for renewal of Fitness Certificate in the name of Ramesh, received or pending on the file of the Office of the Petitioner/A1. Though Ramesh is the person, who was the cause for the case, the complaint has not been filed by him. The actual owner of the Vehicle in question is one P.Subramanian. Only after the arrest of the Petitioner, the necessary fee was paid for renewal of FC. Only on 27.09.2018, the application for renewal of FC was given and on the same date, FC was given, which is unbelievable. In the trap proceedings, the 1st Respondent, gave a cover to the Petitioner/A1 and the Petitioner/A1 opened it and after finding that currency notes to the extent of Rs.2000/- were found inside, he had given back the cover. When the cover was again given back to B.Muthukumar, he had thrown the cover near the seat of the Petitioner/A1 and the currency notes inside the cover were got spilled over the floor and the Petitioner/A2, who is an astrologer, who came to see the Petitioner, picked those currencies. For the best reasons best known to the 1st Respondent, without progressing any further in the matter, they are http://www.judis.nic.in 26 protracting the matter in order to harass the Petitioners. The Petitioner/A2, is not a Government Servant at all and hence, the provisions of Section 7 of the Prevention of Corruption Act, 1988 would not get attracted against him.
19.Further grounds raised by the Petitioners/A1 and A2 are that for a Vehicle, not having permit, tax and insurance, the Petitioner/A1 could have demanded money for renewal of FC. As per the Motor Vehicles Rules, a Person, who is running a Driving School, cannot apply for renewal of Fitness Certificate in respect of a Vehicle belonging to some other person. Since it came to light that the complainant was receiving amounts for renewal of Fitness Certificate from the other vehicle owners, it was warned by the Petitioner/A1 and hence, having grudge over the Petitioner/A1, the complaint has been lodged, with non existent facts and incorrect facts. Without knowing the details of the owner of the Vehicle in question, the complaint has been filed mechanically and without application of mind, which would amount to abuse of process of court.
20.The grounds, raised by the Petitioners/ accused, are relating to disputed questions of fact. The Prosecution has come out with an explanation that though the vehicle is in the name of P.Subramanian, it had been purchased by Ramesh and transferred in his name. Further, in this case, a trap had been conducted and as per the Prosecution, the demand had been made by the Petitioner/A1, Motor Vehicles Inspector and based on the complaint given by the defacto complainant, the trap was laid and pursuant to the trap, the Petitioners/A1 and A2 were caught red handed and arrested, while accepting the bribe amount and the phenolphthalein test had also turned http://www.judis.nic.in 27 positive in respect of the Petitioners/ accused.
21.The case of the Prosecution is that A2 being the friend of A1 had abetted the Petitioner/A1 for committing the offence. Further, pursuant to the trap, house search was conducted and during the house search, huge quantum of unaccounted money and jewels were recovered and the investigation is pending. In such view of the matter, this Court is of the opinion that it would not be proper for this Court to interfere and quash the impugned First Information Report.
22.In 2019 SCC Online Cal 2071 (Dr.Subrata Nag Vs. State of West Bengal and another), it was held as under:-
“9. In the present case, the complaint as well as the investigation make out a prima facie case against the petitioner and the allegations involve disputed questions of fact which can be considered and assessed only in course of trial. Charge-sheet has been submitted against the petitioner under Section 354 of the Penal Code and it shall not be just or proper for the court to interdict the prosecution in the given facts and circumstances of the case. There is also no prima facie material to suggest any previous discord or hostility between the petitioner and the second opposite party which may have led to lodging of a false complaint with a view to harass and humiliate the petitioner. The case is ready for trial and the court should weigh the evidence on record in order to come to a conclusion as to whether the allegations made out against the petitioner has been substantiated beyond all reasonable doubt.
10. It is pertinent to mention here that the authority relied upon by opposite party no. 2 deals with an order framing charge against the accused person under Section 302 of the Penal Code and alternatively under Section 304B of the Penal Code and the High Court held that such framing of charge did not cause prejudice to the petitioner. The factual scenario of the present case can be distinguished from the ratio of the said judgement.
11. In the premise, quashing of the entire proceedings against the petitioner in the present case is not called for as the disputed questions of fact involved herein can be determined only in course of trial”.
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23.The Honourable Supreme Court had categorically observed in 2016 9 Scale (Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency), relying on the decision reported in 2015 11 SCC 776 (HMT Watches Limited Vs. Abida), thus:-
“...... the High Court should not have expressed it's view on the disputed questions of fact in a petition under Section 482 of the Code of Criminal Procedure to come to a conclusion that the offence is made out and that the High Court has erred in law in coming into factual aspects of the matter, which were not admitted between the parties. In other words, while exercising the jurisdiction under Section 482 of the Code of Criminal Procedure, all such factual aspects cannot be scrutinized meticulously so as to come to logical conclusion that the offence has not been made out by the complainant/opposite party against the present petitioner by filing such petition of complaint.
13. In the premises set forth above and in view of the settled principle of law I do not find any merit in quashing the petition of complaint in terms of the prayer of the petitioner. The parameters of the jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure has by this time well settled by very many decisions of the Hon'ble Supreme Court. The application appears to be premature, if not devoid of merit and accordingly the application under Section 482 of the Code of Criminal Procedure stands dismissed.”
24.Though serveral decisions of various Courts, including the Honourable Supreme Court, have been cited and relied on by the learned counsel for the Petitioners/A1 and A2, this Court feels it appropriate not to burden this order with those decisions, at this stage.
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25.The law is well settled that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. At this stage, this Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the impugned First Information Report.
26.This Court has carefully gone through the various averments made in these applications for quashing as also grounds relied upon. The grounds raised are purely disputed questions of fact and the defence of the accused merits no consideration. When the court is confronting with the question of quashing the First Information Report, it cannot be said that no offence are made out against the Petitioners/A1 and A2. The case is only at the stage of investigation.
27.In this case, the impugned complaint as well as the trap proceedings make out a prima facie case against the Petitioners/A1 and A2. As stated above, the allegations and counter allegations involve disputed questions of fact, which can be considered and assessed only in the course of trial, which shall weigh the evidence to be let in on record, in order to come to a conclusion as to whether the allegations made out against the Petitioner/A1 and A2 have A.D.JAGADISH CHANDIRA, J.
Srcm been substantiated beyond all reasonable doubts. Therefore, at this stage, quashing of the impugned First Information Report against the Petitioners/A1 http://www.judis.nic.in 30 and A2 in the present case, is not called for as the disputed questions of fact involved herein can be determined only in the course of trial.
28.In the result, these Criminal Original Petitions are dismissed.
28.08.2019 Index:Yes/No Web:Yes/No Speaking/Non Speaking Srcm To:
1. The Deputy Superintendent of Police, Vigilance and Anti-corruption, Villupuram
2. The Public Prosecutor, High Court, Madras Pre-Delivery Order in Crl.OP.Nos.9458 and 10039 of 2019 http://www.judis.nic.in