Madhya Pradesh High Court
Gyanesh Sharma vs State Of M.P. on 7 August, 2015
1 M.Cr.C. No.374/2010
Gyanesh Sharma Vs. State of M.P.
07/08/2015 :-
Shri Yogesh Chaturvedi, learned counsel for the
petitioner.
Shri B.P.S. Chouhan, learned Government Advocate for
the respondent/State.
Heard finally with the consent of the parties.
ORDER
This petition has been filed under Section 482 of Cr.P.C. for quashing the FIR registered at Crime No.229/2009 at P.S.-Maharajpura and the consequent proceedings pending before the Court.
2. Brief facts of the case are that on 02/10/2009 Food Inspector complained and District Administration had inspected the Hind Dairy Food Products situated at Industrial Area, Maharajpura. During investigation in the Hind Dairy Food Products it was found closed. On 30/10/2009 again the aforesaid Dairy Food Products was inspected and one Brajesh Dubey was found and he has shown the documents of ownership. One Gyanesh Sharma was shown as owner of the property and premises has been given on rent for 11 months which was came to an end in the month of July, 2009. During investigation the samples of cartoons of 200 Agmark Amol 2 M.Cr.C. No.374/2010 Pure Ghee and Gwala Ghee has been found and several cartoons and pouches has been found. The aforesaid brand Ghee was also obtained. It is further found that they also used the Agmark and no document has been shown, thus, manufacture of Ghee and use of Agmark is violation of order of Government. The aforesaid complaint has been submitted by the Food Inspector Dharmendra Soni. Upon which crime No.229/2009 under Section 420, 188 of IPC has been registered against the petitioner, Naresh Nigam and Brajesh Dubey.
3. It is submitted by the learned counsel that petitioner is owner of premises and the same has been taken by Brajesh Dubey and Naresh Nigam and they were in possession and they were doing the business of manufacturing Ghee in the name and style of Hind Dairy Food Products. Petitioner has no concern with the act as alleged in the FIR. It is submitted that on the basis of aforesaid District Magistrate, Gwalior invoked the provisions of Section 3 (2) of National Security Act. The petitioner has challenged the order of detention by preferring W.P. No.5181/2009, this Court has stayed the arrest of the petitioner. It is submitted that during pendency of writ petition detention order has been revoked by the Central Government vide order Annexure-P/3. It is submitted that similarly in detention order which was challenged by Banshilal Agrawal by 3 M.Cr.C. No.374/2010 preferring W.P. No.12532/2009, this Court has held that prima facie no offence is made out punishable under Section 420 of IPC.
4. In view of the aforesaid, the prosecution of the petitioner would be abuse of process of Court, hence prayed for quashing the FIR as well as the proceedings.
5. Learned Government Advocate for the respondent/State submits that after due investigation the charge- sheet has been filed and the matter is pending before JMFC, Gwalior.
6. I have considered the submissions of learned counsel for the parties and also carefully gone through the judgment passed by this Court in W.P. No.5781/2009 (Gyanesh Sharma Vs. State of M.P. and others) as well as in W.P. No.11729/2009 (Smt. Meera Agrawal Vs. The Union of India and others).
7. I have perused the case-diary. As per the FIR Food Inspector alongwith other Officers inspected Hind Dairy Food Products situated at Industrial Area, Maharajpur and found that Agmark of Anmol Desi Ghee and Gwala Ghee was stored in huge quantity while as per the order of Government aforesaid brands were banned. During investigation Brajesh Dubey presented a rent note wherein the petitioner was stated to be a landlord. It appears that after due investigation the charge-sheet has been filed against 4 M.Cr.C. No.374/2010 the present petitioner and co-accused persons before the Competent Court and the criminal case No.1103/2007 is pending in the Court of JMFC, Gwalior.
8. In the matter of R. Kalyani Vs. Janak C. Mehta and others, reported in (2009) 1 SCC 516, the Hon'ble Apex Court after examining the catena of cases laid down following propositions of law with regard to exercise of extraordinary powers under Section 482 of the Code of Criminal Procedure :-
"15. Propositions of law which emerge from the said decisions are :
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court 5 M.Cr.C. No.374/2010 shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
9. The Hon'ble Apex Court in the matter of State of Bihar and another Vs. P.P.Sharma and another , reported in 1992 Supp (1) SCC 222, has observed in para 33 as under :-
"We are of the considered view that at a stage when the police report under Section 173 of Cr.P.C. has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at the stage in exercise of its inherent jurisdiction."
10. In R.P.Kapur Vs. State of Punjab, reported in AIR 1960 SC 866, M.L. Sethi has lodged FIR against R.P. Kapur alleging that he and his mother-in-law has committed offences under Sections 420/109, 114 and 120-B of IPC, R.P. Kapur moved 6 M.Cr.C. No.374/2010 the Punjab High Court under Section 561-A of Cr.P.C. for quashing the proceedings initiated by the FIR. When the petition of R.P.Kapur was pending in the High Court, the police report was submitted under Section 173 Cr.P.C. and the High Court held that no case had been made out for quashing the proceedings under Section 561-A of Cr.P.C. and dismissed the petition. R.P.Kapur carried an appeal by way of special leave to Apex Court while dismissing the appeal Apex Court observed as under ;-
"6. ..... In the present case the Magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage."
11. Recently, in the matter of Dhamatma Singh Vs. 7 M.Cr.C. No.374/2010 Harminder Singh and others (2011) 6 SCC 102 , the aforesaid view has been reiterated.
12. In the instant case, after due investigation the charge- sheet has been filed against the petitioner. FIR discloses the commission of cognizable offence, hence in view of the aforesaid legal position, I find that at this stage the FIR and the proceedings cannot be quashed. Petitioner is at liberty to raise all the pleadings before the trial Court at appropriate stage. Consequently, M.Cr.C. No.374/2010 stands dismissed.
(D.K. Paliwal) Judge Aiyer*