Madhya Pradesh High Court
Phool Singh vs The State Of Madhya Pradesh Thr on 1 August, 2017
Bench: Sanjay Yadav, S.K.Awasthi
(1) MCRC 7202/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K.AWASTHI
MISC. CRI. CASE NO. 7202 OF 2017
Phool Singh
Vs.
State of MP and another
For the applicant : Shri T.C.Singhal, Advocate
For respondents : Shri R.S.Yadav, Public
Prosecutor.
ORDER
(01/08/2017) Per Justice S. K. Awasthi:
The applicant has invoked the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (for brevity, the 'CrPC') for quashing the First Information Report (FIR) dated 28.5.2011 registered at Crime No. 255/2011 by Police Station Gola Ka Mandir, District Gwalior for the offences under Section 420 of Indian Penal Code (IPC), Section 3(1)(2)(4) of the MP Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam 2000, sections 45S/58B and 5-A of the Reserve Bank of India Act, 1934, and also for quashing of charge sheet of Sessions Trial No.02/2013 pending before the Special Judge (Sessions Judge), Gwalior. As per the prosecution case, the applicant is the Director of Parivar Dairies and Allied Limited Company, Gola Ka mandir, District Gwalior having registered under the Companies Act, 1956.
2. As per the applicant, the Company was incorporated (2) MCRC 7202/2017 on 31.10.2002 and is in the business of purchase of cattle and their stock. The Company is not involved in the business of money-lending, neither it has received any deposit from the depositors. The applicant was appointed as Additional Director of the Company on 11.7.2008 and he has resigned from the directorship on 7.7.2009 and necessary information vide Form No.32 was registered by the Office of the Registrar of Companies, Madhya Pradesh. There is no direct or indirect evidence against the applicant to show that he was involved in the alleged crime in any manner. Only ambiguous allegations are made against the applicant. The applicant is a government teacher and he was on duty since 21.4.2010 to 23.9.2016 at Dolaria ansd Mehra Goan schools, respectively. The FIR registered against the applicant is illegal and arbitrary and deserves to be quashed. In support of his contention, learned counsel for the applicant placed reliance on the judgments in the cases of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and another (2005) 9 SCC 59; K.P.G. Nair vs. M/s Jindal Menthol India Ltd., 2001 (2) Crimes 132 (SC); Everest Advertising Pvt.Ltd. vs. State & others, 2005 (3) JCC (NI) 227; and, Securities and Exchange Board of India vs. Gaurav Varshney and another etc. (Criminal Appeal Nos. 827-830 of 2012, decided by Supreme Court on 15th July, 2016).
3. From perusal of the charge sheet, it reflects that a letter No. Q/ADM/NBFC/SHIKA/7/10/14133 dated 8.12.2010 was received by the SHO, Police Station Gola Ka Mandir, from the Collector Gwalior, mentioning therein that Parivar Dairies and Allied Limited, 302, Ganesh Plaza, Gola Ka Mandir, Gwalior is collecting money in different manner from the general public without obtaining the registration from the Reserve Bank of India. On the basis of this letter, the police has registered the case against the applicant and 17 other Directors/Additional Directors of the Company, for commission of the offences under Section 420 of Indian (3) MCRC 7202/2017 Penal Code (IPC), Section section 3(1)(2)(4) of the MP Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam 2000, and sections 45S/58B and 5-A of the Reserve Bank of India Act, 1934. After due investigation, police filed the charge sheet against the applicant and other accused persons before the Special Court.
4. From the aforesaid facts, the applicant has taken the defence that he was appointed as Additional Director of the Company on 11.7.2008 and he has resigned from the directorship on 7.7.2009 and as such he remained as Additional Director for a period of about one year only and no specific averment is made against the applicant herein in the entire FIR and charge sheet that at the relevant time when the applicant was Director, any offence took place at the hands of the applicant and, only ambiguous averments are made that the alleged offence took place between the period from 31.10.2011 to 5.5.2011.
5. From the perusal of the documents filed along with the charge sheet, it reflects that the collections were made by the Company during the period from the month of September, 2008 to April, 2009 and at that time the applicant was working as Additional Director in the Company and during investigation the applicant was found to be involved and also the Company in which the applicant is associated has committed the offence. The charge sheet has already been filed against the applicant and the trial Court has also framed the charge.
6. This Court in the case of Colgate Palmolive India Ltd. vs. Satish Rohra, 2005 (4) MPLJ 380, has held in the following manner:-
"6. I have heard the learned Counsel of both the parties and carefully perused the evidence and 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 (4) MCRC 7202/2017 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."
7. It is trite law that FIR cannot be an encyclopedia of the entire incident, which must disclose all facts and details relating to the offence reported. The Apex Court in (2003) 6 SCC 175 (Superintendent of Police, CBI and others vs. Tapan Kumar Singh), has held that mentioning of a section in the FIR is not by itself conclusive, as it is for the Court to frame charges having regard to the material on record. In (2009) 9 SCC 719 (Jarnail Singh and others vs. State of Punjab), the Apex Court has held that if minimum/brief facts for initiating action are available in FIR, it is sufficient for the prosecution to proceed further.
8. The question is whether at this stage this Court can examine the said documents and conduct a mini trial simultaneously. This aspect is no more res integra. The Apex Court in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander), 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:-
(5) MCRC 7202/2017"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 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 (6) MCRC 7202/2017 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 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 (7) MCRC 7202/2017 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 do real and substantial justice for administration of which alone, the courts exist."
A combined reading of clauses 11 and 13 of said judgment makes it clear that at this stage, 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.
9. In the matter of Taramani Parakh vs. State of M.P. and Ors., 2015 Cr.L.J. (SC) 2031 , it is held by Supreme Court that:
"27.1. Though there are no limits of the power of this Court under Section 482 of the Code 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 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of the 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.(8) MCRC 7202/2017
27.3. 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."
10. In the present case, there is no admitted material between the parties. The trial Court is best suited to examine the defence documents at appropriate stage. At this stage, no interference on the basis of defence documents can be made. The judgments relied upon by learned counsel for the applicant in the cases of S.M.S. Pharmaceuticals Ltd., K.P.G. Nair, Everest Advertising Pvt.Ltd. (supra) are not applicable to the facts of the present case, as the same were relating to the offence under Section 138 of the Negotiable Instruments Act and in the case of Securities and Exchange Board of India (supra) the offence was committed after resignation of the Director, but in the present case the offence is committed during the period when the applicant was working as Director/Additional Director.
11. In view of the aforesaid discussion, looking to the offences charged against the applicant, 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. We, however, make it clear that we have not expressed any opinion on the merits of the matter. Any observation which has been divulged with touching the merits of the matter has to be ignored by the trial Court. There shall be no cost.
(Sanjay Yadav) (S. K. Awasthi)
Judge Judge
(yog)