Madhya Pradesh High Court
Ramesh Singh Bhadoria vs The State Of Madhya Pradesh on 11 May, 2020
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
-( 1 )- MCRC No. 51221/2019
MCRC No. 3049/2020
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: SHEEL NAGU
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Misc. Cri. Case No. 51221/2019
Ramesh Singh Bhadoriya
Versus
State of MP & Another
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Shri V.K.Saxena and Shri K.S.Tomar, learned senior counsel for
the Petitioner.
Shri Rohit Mishra, learned counsel for the Respondent No.1.
Shri S.S.Bhadoriya, learned counsel for the Respondent No.2.
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AND
Misc. Cri. Case No. 3049/2020
Ramesh Singh Bhadoriya
Versus
Lokayukta Sangthan
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Shri V.D.Sharma, learned counsel for the Petitioner.
Shri Rohit Mishra, learned counsel for the Respondent.
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ORDER
(11. 05.2020) Per Rajeev Kumar Shrivastava,J.:
This judgment shall govern the disposal of Misc. Cri. Case No. 51221/2019 (Ramesh Singh Bhadoriya vs. State of MP & Another) and Misc. Cri. Case No. 51221/2019 (Ramesh Singh Bhadoriya vs. Lokayukta Sangthan), as both the cases are arising out of registration of FIR No. 0402/2016 by Special Police Establishment, Lokayukta, Bhopal.
2. Misc. Cri. Case No. 51221/2019 has been preferred under -( 2 )- MCRC No. 51221/2019 MCRC No. 3049/2020 Section 482 of CrPC for quashing the FIR registered as Crime No. 0402 of 2016 by Special Police Establishment, Lokayukta, Bhopal, where as Misc. Cri. Case No. 3049/2020 has been preferred under Section 482 of CrPC for setting aside the order dated 31.12.2019 passed by Special Judge (Prevention of Corruption Act), Bhind in Special Case No. 4/2019 (Police Lokayukta Gwalior vs. Ramesh Singh Bhadoriya), whereby the application filed by the prosecution under Sections 63, 65 of Indian Evidence Act, for granting permission to submit the proposed documents as secondary evidence, has been allowed.
3. Misc. Cri. Case No. 51221/2019 :
Brief facts of the case are that SHO, Special Police Establishment Bhopal received 'Dehati Nalish' from Special Police Establishment, Lokayukta Office, Gwalior, therein it was stated that on 29.12.2016 Ramgovind (respondent No.2 herein) filed a complaint to SHO stating therein that the petitioner demanded commission/bribe of Rs. 13000/- for payment of bills of Shantidham of village Khokipura. Thereafter, the complainant was given a voice recorder. The conversation between the petitioner and complainant was recorded. It was further pleaded that the complainant was not in favour of giving bribe, therefore, he approached the Lokayukta and prayed that the petitioner be caught red handed. It was further pleaded that all the original documents of the case which were kept in Government almirah were taken by unknown thieves by breaking the lock of almirah of Lokayukta S.P. Office, Gwalior, hence the matter was again investigated. Thereafter, repeat FIR was written and all documents were subsequently prepared.-( 3 )- MCRC No. 51221/2019 MCRC No. 3049/2020
4. The grounds urged by learned senior counsel are that the FIR is against the facts and deserves to be quashed. After registering FIR raid was conducted and as per prosecution story, the petitioner was caught red handed but phenolphthalein test was not found positive against the petitioner. There is no paper on record to show that the raid was conducted and there is lack of sufficient evidence against the present petitioner. It was further pleaded that it appears that the documents were prepared only on the memory of the Investigating Officer. There is no original CD in which conversation was recorded. The sanction is not in accordance with the provisions of Section 19 of the Prevention of Corruption Act. The bills which were claimed to be issued were already approved and forwarded to the Assistant Engineer on the same day, thereafter the Asstt. Engineer also forwarded the bills to the concerned Gram Panchayat for payment on the very date. The enquiry conducted was not fair. There is no prima facie evidence against the petitioner. Hence, prayed for quashing of FIR registered against the petitioner.
5. Per Contra, learned counsel for the respondents opposed the submissions and prayed for dismissing the petition under Section 482 CrPC.
6. We have heard learned counsel for the rival parties and perused the documents filed on record.
7. In the case of Colgate Palmolive India Ltd. vs. Satish Rohra, 2005 (4) MPLJ 380, it has been held thus:-
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and -( 4 )- MCRC No. 51221/2019 MCRC No. 3049/2020 the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered."
8. It has been observed by the Hon'ble Apex Court in Madhu Limaye V. State of Maharashtra, [(1977) 4 SCC 551] as under:-
"The High Court possessed and possess the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone Courts exist.
At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions:
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law -( 5 )- MCRC No. 51221/2019 MCRC No. 3049/2020 engrafted in any other provision of the Code The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code."
9. The question is whether at this stage this Court can examine the documents and conduct a mini trial simultaneously. This aspect is no more res integra. The Apex Court in Amit Kapoor vs. Ramesh Chander [(2012) 9 SCC 460], has held that where the factual foundation for an offence has been laid, the courts 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. In the said case, the Apex Court laid down the relevant parameters, on the strength of which interference under Section 482 CrPC can be made. The said principles are as under:-
"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.
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.
3. The High Court should not unduly interfere. No -( 6 )- MCRC No. 51221/2019 MCRC No. 3049/2020 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.
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.
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 bar is intended to provide specific protection to an accused.
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.
7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
8. 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. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.
9. 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 -( 7 )- MCRC No. 51221/2019 MCRC No. 3049/2020 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.
10. 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.
11. 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.
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 acquittal. The court has to consider the record and documents annexed with by the prosecution.
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.
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.
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 -( 8 )- MCRC No. 51221/2019 MCRC No. 3049/2020 do real and substantial justice for administration of which alone, the courts exist."
10. As per the provision of law which flows from the judgment in Amit Kapoor (supra), it is clear that at the stage, at which the present case is, the court should not examine the facts, evidence and material on record to determine whether there is sufficient material, which may end in a conviction. The court is only concerned with the allegations taken as a whole whether they will constitute an offence. Similarly, under section 482 CrPC the court cannot take into consideration external materials given by an accused for arriving to a conclusion that no offence was disclosed or there was possibility of his acquittal. Whether mens rea behind the PC Act of forgery is present or not cannot be decided at this early stage and is best to be left to be adjudicated by the Trial Court after marshalling of evidence.
11. In the present case, it is pleaded and submitted before the Court that earlier the record as well as FIR which was registered at Gwalior were stolen from the Lokayukta Office, thereafter again FIR was registered and matter was re-investigated and all the documents were prepared only on the basis of the memory of Investigating Officer. It is also pleaded that there is lack of original record as well as CD in which conversation in respect of demand was recorded.
12. On perusal of the record submitted by the petitioner it is apparent that only one FIR is registered against the petitioner, i.e., in Crime No. 0402/2016, no other FIR as stated by the petitioner has been filed before this Court. Therefore, this Court cannot presume that two FIRs were registered for the same incident against the petitioner. There is no bar to re-investigate the matter. Therefore, the plea taken by the petitioner with regard to re- investigation of the matter will not adversely affect the case of the -( 9 )- MCRC No. 51221/2019 MCRC No. 3049/2020 prosecution. The sanction granted is appropriate or not is matter of evidence. Similarly other facts submitted with regard to non- availability of prosecution evidence against the petitioner cannot be considered at this stage by this Court. The phenolphthalein test is only a corroborative piece of evidence and its result can only be considered after recording of complete prosecution evidence.
13. In view of the aforesaid discussion, looking to the offences charged against the petitioner, we are of the considered view that no ground is made out for quashing the FIR. The petition under Section 482 of CrPC sans substance and is hereby dismissed.
14. Misc. Cri. Case No.3049/2020 :
This petition has been preferred under Section 482 of CrPC for setting aside the order dated 31.12.2019 passed by Special Judge (Prevention of Corruption Act), Bhind in Special Case No. 4/2019 (Police Lokayukta Gwalior vs. Ramesh Singh Bhadoriya), whereby the application filed by the prosecution under Sections 63, 65 of Indian Evidence Act, for granting permission to submit the proposed documents as secondary evidence, has been allowed.
15. Learned counsel for the petitioner has submitted that the court below has committed error in allowing the application under Sections 63, 65 of the Indian Evidence Act. The court below has ignored the fact that with regard to theft of the documents crime No. 146/2018 was registered under Section 457, 380 of IPC, wherein final report has yet not been submitted and the matter is still under investigation. It is further pleaded that on 6.12.2019 charges under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act -( 10 )- MCRC No. 51221/2019 MCRC No. 3049/2020 were framed against the petitioner in absence of the original documents and only photocopies whereof were available on record, in respect of which no order was passed to accept the same as secondary evidence. In these circumstances, the order framing charge against the petitioner on 6.12.2019 is without jurisdiction. It is also pleaded that the complainant has not supported the prosecution case before the Court and he was declared hostile. It was lastly contended that the impugned order is against the principles of law settled by the Apex Court. Hence, prayed for setting aside the order impugned. In support of his submissions, learned counsel for the petitioner has placed reliance on the judgments in Ashok Dulichand vs. Madahavlal Dube and others [AIR 1975 SC 1748] and J. Yashoda vs. K. Shobha Rani [(2007) 3 SCC (Cri) 9].
16. Per Contra, learned counsel for the respondent opposed the submissions and submitted that no error is committed by the Court below in passing the impugned order and hence, prayed for dismissing the petition under Section 482 CrPC.
17. Before adverting to the fact situation in the case, it would be appropriate to a take look at the relevant provisions of Evidence Act with regard to admissibility of secondary evidence. The relevant part of Section 65 (c) of the Evidence Act reads as hereunder:
"65. Cases in which secondary evidence relating to documents may be given Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) *
(b) *
(c) when the original has been destroyed or -( 11 )- MCRC No. 51221/2019 MCRC No. 3049/2020 lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) *
(e) *
(f) *
(g) * In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible."
18. A careful reading of section 65(c) of the Evidence Act reveals that only condition that is required to be fulfilled before secondary evidence may be adduced is that it has to be established that original has been destroyed or lost.
19. In the case at hand, from the impugned order itself it is apparent that in the midnight of 19 th March and 20th March of 2008, a theft took place in the Lokayukta Office Gwalior by breaking the lock of Government almirah of Investigating Officer and all the original documents in relation to the present case were stolen and an FIR in this regard had been lodged in Police Station Padav, Gwalior at Crime No. 146/2018 for the offences punishable under Section 457, 380 of IPC. Therefore, the prosecution is seeking to adduce secondary evidence on the ground that original documents are not available being stolen and the Court below has rightly allowed the applicaion. No interference is warranted in the impugned order.
20. In the light of aforesaid discussion, Misc. Cri. Case No. 3049/2020 is hereby dismissed being devoid of merit.
Let a copy of this order be sent to the Court below for information.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
(yog) Judge Judge
YOGESH VERMA
2020.05.12
09:54:31 +05'30'
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'