Madhya Pradesh High Court
Amar Singh vs The State Of Madhya Pradesh on 27 January, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.12172/2020
Amar Singh vs. State of M.P. & Ors.
Through video conferencing
Gwalior, Dated : 27/01/2022
Shri RVS Ghuraiya, Counsel for the applicant.
Shri A.K. Nirankari, Counsel for respondents/State.
This application under Section 482 of Cr.P.C. has been filed against the order dated 13.7.2019 as well as for quashment of the FIR in Crime No.346/2019 registered at Police Station Ambah, District Morena for offence under Section 409 of IPC.
It is submitted by the counsel for the applicant that one criminal trial was going on and in the said trial it was found that the gold ornaments seized by the police were missing and accordingly, the SHO, Police Station Sihoniya, District Morena was directed to file his reply and by order dated 11.6.2019 a show cause was also issued that in case if no reply is filed by the SHO, Police Station Sihoniya, District Morena, then why the proceedings under Sections 174, 175 of IPC be not initiated. Thereafter, on 27.6.2019, neither the SHO, Police Station Sihoniya, District Morena appeared before the Trial Court nor submitted his explanation. Accordingly, last opportunity was given and a letter dated 1.7.2019 was also forwarded to the Inspector General of Police, Chambal Range, Morena. Thereafter, on 13.7.2019, the applicant did not appear before the Trial Court and, accordingly, the Trial Court observed that it is a fit case for proceeding against the applicant under Sections 174, 175 of IPC. Accordingly, it was directed 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.12172/2020 Amar Singh vs. State of M.P. & Ors.
that a complaint be made to the Court of JMFC, Ambah in this regard. Furthermore, the Trial Court also came to a conclusion that since the gold ornaments which were kept in the police station have been misappropriated and the SHO of the concerned police station is responsible for the same and in spite of various opportunities if the SHO, Police Station Sihoniya, District Morena has not responded, then it can be presumed that misappropriation of gold ornament was with his consent and, accordingly, SHO, Police Station Ambah, District Morena was directed to register an offence against the applicant under Section 409 of IPC.
It is submitted by the counsel for the applicant that the applicant was posted as SHO, Police Station Sihoniya, District Morena on 13.8.2018 and was transferred on 28.6.2019 and he also tried to convince this Court that in fact the Head Constable No.206 Nihal Singh Yadav is primarily responsible for misappropriation of the gold ornaments but counsel for the applicant could not point out any good reason for not appearing before the Trial Court and for not filing any reply in spite of repeated directions. However, the counsel for the applicant submitted that the applicant has filed an affidavit before this Court as Document No.23011/2021 in which he has mentioned that he had appeared before the Court and had also verbally informed the Court about the same. It is also mentioned that on 12.6.2017 also the applicant has informed the JMFC, Ambah about the situation. 3
THE HIGH COURT OF MADHYA PRADESH MCRC No.12172/2020 Amar Singh vs. State of M.P. & Ors.
Per contra, the counsel for the State has supported the order passed by the Court below.
Heard the learned counsel for the parties.
The applicant has not challenged the filing of complaint for offence under Sections 174, 175 of IPC, therefore, this order will be confined to the FIR in Crime No.346/2019 registered for offence under Section 409 of IPC only. The only reason assigned by the Court below for lodging the FIR under Section 409 of IPC is that the applicant has neither responded nor appeared before the Trial Court to explain the situation with regard to misappropriation of gold ornaments which were seized in another offence. The conduct of the applicant in not appearing before the Trial Court as well as not responding to its order is highly objectionable and cannot be appreciated. The most unfortunate part is that even Inspector General of Police, Chambal Range, Morena also did not take note of the different communications made by the Trial Court. Even the affidavit of applicant that he had appeared before the Trial Court is false as it is not reflected from the order sheets.
Be that whatever it may.
It is true that misappropriation of gold ornaments which were seized by the police in another offence is serious situation which cannot be taken up in a light manner but at the same time this Court cannot lose sight of the fact that the direction to lodge the FIR has 4 THE HIGH COURT OF MADHYA PRADESH MCRC No.12172/2020 Amar Singh vs. State of M.P. & Ors.
been given only on the basis of presumptions.
Under these circumstances, this Court is of the considered opinion that one more opportunity can be given to the applicant to appear before the Trial Court and to give his explanation with regard to misappropriation of gold ornaments.
Since the order under challenge was not passed on merits but it was passed for the simple reason that the applicant was not responding to the directions given by the Trial Court, therefore, in the considered opinion of this Court the bar as contained under Section 362 of Cr.P.C. would not come in the way of reconsideration of the case and if the matter is remanded back for giving an opportunity to appear and explain the misappropriation of gold ornaments, then the law laid down by the Supreme Court in the case of Adalat Prasad vs. Rooplal Jindal & Ors. reported in (2004) 7 SCC 338 would not come in the way. However, looking to the contemptuous attitude of the applicant towards judiciary, no sympathetic view can be adopted unless and until a heavy cost is imposed on the applicant.
Accordingly, order dated 13.7.2019 passed in Criminal Case No.610/2017 by JMFC, Ambah, District Morena is partially modified. While maintaining the direction to file complaint for offence under Sections 174, 175 of IPC, it is directed that in case if the applicant appears before the Trial Court on 16.2.2022 and submits his explanation regarding missing ornaments, then the said submission 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.12172/2020 Amar Singh vs. State of M.P. & Ors.
shall be taken into consideration and a fresh order shall be passed in accordance with law.
Accordingly, this application is allowed subject to payment of cost of Rs.50,000/- in the Registry of this Court payable within a period of seven days from today which shall be utilized for upgrading the Civil Dispensary functioning within the Court premises for fighting against Covid-19 pandemic.
It is made clear that in case if the cost is not deposited within a period of seven days from today, then this order shall automatically lose its effect and the order dated 13.7.2019 so far as it relates to registration of offence against the applicant under Section 409 of IPC is concerned, it shall automatically got revived.
This Court is consciously not quashing the FIR in Crime No.346/2019 registered at Police Station Ambah, District Morena because the gold ornaments which were seized by the police in another case are alleged to be misappropriated and thus even if the Trial Court comes to a conclusion that the applicant is not responsible for misappropriation but still the police would be under obligation to investigate the matter and file the charge sheet against the guilty persons.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2022.01.28 10:31:15 +05'30'