Madhya Pradesh High Court
Shyam Sunder Shrotriya vs The State Of Madhya Pradesh on 27 August, 2019
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
-( 1 )- MCRC No. 7859/2019
(Shyam Sunder Shrotriya Vs.State of MP)
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
Misc. Criminal Case No. 7859/2019
Shyam Sunder Shrotriya ..... Petitioner
Versus
State of MP ..... Respondent
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri Arun Katare, learned counsel for the petitioner.
Shri Aditya Sharma, learned Panel Lawyer for the
respondent/State.
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Whether approved for Reporting : No
Reserved on :
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ORDER
(Passed on 27th August, 2019) This petition under Section 482 of the Code of Criminal Procedure has been preferred by the petitioner praying for -( 2 )- MCRC No. 7859/2019 (Shyam Sunder Shrotriya Vs.State of MP) quashment of FIR dated 5.9.2017 registered under Section 33 of Indian Forest Act, 1927 and other consequential proceedings against the petitioner.
2. The facts leading to filing of present application are that the petitioner is a Proprietor of M/s Shrotriya Company and work of the petitioner is to take contracts from various departments. Copy of the registration of the firm is Anneure P-2. The M.P. Rural Road Development Authority Project Implementation Unit, Gwalior issued tender of construction/upgradation of Rural Road under Pradhan Mantri Gram Sadak including maintenance for five years after construction package. Learned counsel for the petitioner submitted that the above project was completed three months prior to the alleged incident. Copy of the letter is Annexure P-3.
3. It is further submitted that copy of the completion certificate issued by the then General Manager, MP Rural Road Development Authority, Project Implementation Unit, Gwalior is annexed as Annexure P-4, wherein it is found that the project work was completed within three months prior to the date of incident, hence it is submitted that the petitioner has no concern with the charges levelled in the FIR. The petitioner further submitted that he has not committed any offence, hence requested to quash the FIR -( 3 )- MCRC No. 7859/2019 (Shyam Sunder Shrotriya Vs.State of MP) (complaint).
4. Learned Public Prosecutor has opposed the same and submitted that previously one case of similar nature was registered against the present petitioner. The present complaint is registered under Section 33 of the Indian Forest Act. Previously by Annexure P-4 the work was assigned to be completed for construction of road from Khureri Jiganiya Road to Kripalpur, Khureri Jiganiya Road to Ganpatpura and from Khureri Jiganiya Road to Bhavanpura and on the date of incident, the petitioner was found constructing the road by using murram. There is ample evidence against the present petitioner, hence requested to reject the petition.
5. Heard learned counsel for the parties and perused the material available on record.
6. On perusal of the record, it is apparent that vide Annexure P-3 the construction work was allotted to petitioner's construction company. Annexure P-4 is the completion report, but in the present case the petitioner was using forest article, ie., murram for the assigned project work.
7. It is trite law that appreciation of evidence, probability of allegations made in the FIR and the defence raised by the persons accused of the offence -( 4 )- MCRC No. 7859/2019 (Shyam Sunder Shrotriya Vs.State of MP) cannot be gone into by this Court in a proceeding under Section 482 of CrPC.
8. In Amit Kapoor Vs. Ramesh Chander and Anr. (2012) 8 SCC 460, the Hon. Apex Court has observed as under:-
27.1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2 The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3 The High Court should not unduly interfere.
No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any of the provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a -( 5 )- MCRC No. 7859/2019 (Shyam Sunder Shrotriya Vs.State of MP) bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his -( 6 )- MCRC No. 7859/2019 (Shyam Sunder Shrotriya Vs.State of MP) acquittal. The court has to consider the record and documents annexed with by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2)CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) are to be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the Court should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
9. It has been held by the Apex Court in the case of State of Haryana and others Vs. CH. Bhajanlal [AIR 1992 SC 604] that when allegations in complaint clearly constitute cognizable offence, then quashing of FIR is not justified. Similarly, in the case of State of Orissa -( 7 )- MCRC No. 7859/2019 (Shyam Sunder Shrotriya Vs.State of MP) and another vs. Saroj Kumar Sahoo [(2006) 2 SCC 272], it has been observed that inherent powers are to be exercised sparingly and that too in the rarest of rare cases and the High Courts should not embark upon an inquiry as to reliability of evidence to sustain the allegations, which is the function of the trial Court.
10. Truthfulness or falsehood of allegations made by the complainant in his complaint is to be established by evidence to be produced before the trial Court and only looking to the FIR it cannot be inferred that prima facie no case is made out against the present petitioner. Therefore, in the case in hand, there is no question of invoking inherent powers vested in this Court under Section 482 of Cr.P.C. for quashing of FIR.
11. In view of the aforesaid discussion, looking to the offence charged against the petitioner, I am of the view that no ground is made out for quashing the FIR. The petition under Section 482 of Cr.P.C. sans substance and is hereby dismissed being devoid of merit.
(Rajeev Kumar Shrivastava)
vv Judge
VALSALA
VASUDEVAN
2019.08.29
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
16:28:00
-07'00'