Allahabad High Court
Smt. Reeta Gupta vs State Of U.P. Thru. Prin. Secy. Home And ... on 9 January, 2018
Bench: Devendra Kumar Upadhyaya, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 05.01.2018 Delivered on 09-01-2018 Court No. - 9 Case :- MISC. BENCH No. - 32150 of 2017 Petitioner :- Smt. Reeta Gupta Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others Counsel for Petitioner :- Laltaprasad Misra,Sharad Pathak Counsel for Respondent :- Govt. Advocate Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Dinesh Kumar Singh,J.
(Delivered by Hon'ble Dinesh Kumar Singh,J.)
1. This writ petition has been filed for quashing of the First Information Report arising out of Case Crime No.349 of 2017, under Sections 265, 267, 420, 467, 468, 471, 484 IPC, Section 3/7 Essential Commodities Act and Sections 12, 26, 30 Legal Metrology Act, Police Station Chinhat, District Lucknow.
2. In the year 1998, dealership of petrol pump in the name of M/s Saket Filing Centre was given to Mr. L.C. Gupta, the husband of the petitioner by the IBP Company Limited which has now got merged with Indian Oil Corporation. The dealership has been carried on in the name and style of M/s Saket Filling Centre. It is averred in the writ petition that in the month of June 1991, husband of the petitioner developed serious heart ailment and was operated upon. The petitioner got inducted into the business of the dealership as a sleeping partner and a partnership deed dated 1.4.1992 was executed in which the husband of the petitioner and the petitioner are two partners.
3. The important clauses of the partnership deed dated 1.4.1992 between the petitioner and her husband are extracted herein below:-
"6. That the capital of the Firm shall be contributed as may be required by each parties as may mutually agreed upon from time to time. The Second Party shall also contribute her piece of Land situated at village Anaura which is valued at Rs.25,000/- in addition to her Cr. Balance to the loan amount of the firm as on 31.03.91.
7. That all the partners shall be working partner and shall be entitled to draw salary in their profit sharing ratio to the extent of the net profit as may be permitted as allowable expenditure to the firm under the provisions of the Income Tax Act and Rules.
8. That the remaining Profit and Losses of the firm shall be divided amongst the parties as under:-
First Party - 55% Second Party-45%
9. Regular books of account shall be maintained to record day to day businesses transaction of the firm and the same shall be open to inspection of the parties at all times. Books of accounts shall be closed on 31st of March each year.
10. The bank account of the Firm shall be opened in any Scheduled Bank or Banks under the signature of any partners and the same shall be operated by any person authorised by the partners.
11. As has been mutually agreed between the present parties that they shall be entitled to get interest at such rate per annum on their credit balance of capital as may be permitted under the provisions of the Income Tax & Rules.
12. The partnership Firm may borrow money from time to time from persons, Firms, Companies or Banks, Such monies may be required for the purpose of business as deposits or loans at an agreed rate of interest.
13. That in the event of death of any parties to this Deed, the entire rights and privileges enjoyed by such party shall be automatically be vested with his/her legal heirs as the case may be.
14. Any of the parties of the firm shall be entitled to do any or all of following acts of Deed which are necessary to be done in connection with the execution of the contract or Contracts:-
a) To obtain tender forms and sign the same for and on behalf of th Firm.
b) To prepare and submit bill and also to sign the same for and on behalf of the Firm.
c) To collect dues including cheques etc. from the contracting party (Departments) and to grant receipts therefore and on behalf of the Firm.
d) To receive, correspondence from the contracting parties and to send replied thereto for and on behalf of th Firm, and
e) To deals such things which are necessary and incidental to the carrying on of the business of the Firm.
15. All disputes and differences whatsoever which shall either during the partnership or after the termination thereof, arises between the partner or their respective representatives or between any partner(s) touching these presents or the construction or application thereof, or any clauses or thing herein contained or any account, valuation division, debits or liability be made hereunder or as to any act, deed or omission of any duties of the partners or as to any matter in or the rights, duties/liabilities of any person under these presents, shall be referred to arbitration of the arbitrators one to be appointed by each party to the difference, in accordance with the subject the provisions of the Indian Arbitration Act, 1949 or any Statutory modification of re-enactment thereof for the time being in force and the award of such arbitrators of the Umpire, as the case may be, shall be binding on all the parties to the said disputes."
4. From perusal of the terms of the deed of partnership, the petitioner cannot be described to be a sleeping partner inasmuch she has rights and liabilities in equal share with her husband including the profit and loss at the rate of 45% from the business of the dealership. The bank account of the firm was to be opened under the signatures of the partners and business was to be conducted jointly. From the deed of the partnership, it is very clear and evident that she is an active business partner of the firm which runs the aforesaid dealership of a Government Oil Company. The petitioner cannot be equated and clothed with the status of a sleeping partner as contented by the learned counsel for the petitioner.
5. Concerned enforcement authorities got information that there was tampering with the dispensing units at several petrol pumps in State of Uttar Pradesh by installing devices at dispensing units which were controlled by remote controllers and, therefore, the dispensing units were not dispensing the exact quantity but less quantity for the payment received from the consumers. Therefore, the authorities undertook to check the dispensing units at petrol pumps and it was discovered that at several petrol pumps computer chips have been installed in dispensing units and the petrol and diesel was given to the consumers in less quantity than which ought to have been given for the payment received. First Information Reports got lodged against each and every petrol pump owners, managers and employees where such commission of crime was discovered by the authorities.
6. In continuance of the drive to check the petrol pumps, a raid team conducted the raid at Saket Filling Centre run by the petitioner and her husband on 27.04.2017 at 8:00 PM. During the raid, the manager of the petrol pump fled away. During search 6 remote electronic devices were seized and one Matadeen, an employee at the petrol pump told the raiding team that using these devices, the petrol and diesel was given in less quantity than what ought to have been given for the payment received. The raiding party checked the dispensing units and found that the dispensing units were mechanically tampered with and there was short supply of petrol and diesel to the extent of 260-290 ml in every 5 litres of petrol/diesel.
7. It is further alleged in the impugned FIR that the workmen present at the petrol pump accepted that on the instructions of the proprietor and manager and on their behest, chips were installed in the dispensing units and through remote control short supply of the diesel and petrol was made to the consumers. On the basis of these allegations, the impugned FIR has been registered.
8. During the course of hearing of the writ petition, an additional affidavit dated 3.1.2018 has been handed over in the Court on behalf of the petitioner annexing there with the copy of the charge-sheet forwarded to the Court on 25.07.2017 including statement of witnesses under Section 161 Cr.P.C. recorded by the investigating officer during the course of investigation against accused Matadeen and Rajendra who are in jail in connection with the aforesaid case crime.
9. Heard Shri L. P. Mishra and Shri Sharad Pathak, Advocates for the petitioner and Sri R.K. Diwedi, learned AGA for the State.
10. It is submitted on behalf the petitioner that she is not named in the FIR. But mere absence of her name in the FIR itself does not give any immunity to her or absolve her of the crime if during the course of Investigation some credible evidence against her is found relating to her involvement in the crime. Learned counsel for the petitioner submits that the petitioner is a household lady and she never participated in running business of the petrol pump. She was never actively involved in managing the day today affairs of the petrol pump and she was merely a sleeping partner and, therefore she cannot be held liable for the offences alleged to have been committed by the other accused.
11. To buttress the aforesaid argument learned counsel for the petitioner has placed reliance on an authorisation letter executed by the partners of the firm i.e. the petitioner and her husband in favour of the co-accused Aniruddha Kumar Mishra, alleged to be the manager of the petrol pump. This authorisation letter is annexed as Annexure-4 to the writ petition. Relying on the contents of the aforesaid letter it is contended that it was the responsibility of the said manager only for any illegality or commission or omission of any act against law and, therefore, when the manager was specifically authorised in terms of the aforesaid authorisation letter, the petitioner cannot be said to be involved in running the affairs of the petrol pump and, therefore offence cannot be said to have been committed by her. She is not involved in any manner with the commission of alleged offences.
12. This authorisation letter is undated. On specific query from the Court that whether this authorisation letter was given to the oil company and if it was given when was it given, the counsel for the petitioner said that he has no instructions to the effect that whether this authorisation letter was given to the oil company. The Court further asked the question to the learned counsel for the petitiioner as to whether in terms of dealership agreement with the oil company such a letter could have been issued in front of the alleged manager. The learned counsel said that he could not examine the said aspect.
13. The next submission of the learned counsel for the petitioner is that the Principle of Vicarious Liability of a partner for acts of commission or omission of other partners of firm as in the case of civil liability cannot be invoked in a criminal case. To bring a charge home against a partner, the individual partner's culpability and involvement in the commission of crime is the only relevant consideration and the concept of vicarious liability is not at all applicable in a criminal case.
14. He further submits that in the present case there is no allegation that the petitioner was involved in tampering with the dispensing units at the petrol pump from which the less quantity of the diesel/petrol was given to the consumers than it ought to have been given for the consideration received and, therefore, in absence of specific allegation regarding the involvement of the petitioner in the commission of alleged crime, she cannot be held responsible for alleged offences and prosecuted. He submits that the impugned FIR is liable to be quashed against her.
15. Learned counsel for the petitioner further contends that while deciding a criminal case, parity cannot be a ground. Each case has to be decided on its own facts and merit. Judgments/orders rendered in other cases with respect to the petrol pump matters have no bearing inasmuch as the facts and circumstances of the present case are different than those cases and, therefore, the Court should not place reliance on the earlier orders/judgments passed in similar cases of petrol pumps by this Court while deciding the present writ petition.
16. Next submission of the learned counsel for the petitioner is that under section 51 of the Legal Metrology Act, 2009, there is a specific bar for invoking the provisions of IPC in so far as offence related to weight and measures are concerned.
17. Section 51 of the Legal Metrology Act reads as under:-
"51. Provisions of Indian Penal Code and Code of Criminal Procedure not to apply. The provisions of the Indian Penal Code (45 of 1860) and the Code of Criminal Procedure, 1973 (2 of 1974), in so far as such provisions relate to offences with regard to weight or measure, shall not apply to any offence which is punishable under this Act."
18. Relying on the provisions of Section 51 of the Legal Metrology Act, 2009, learned counsel for the petitioner submits that in the present case, offence relates to the weight and measure and, therefore, the provisions of IPC could not have been invoked for commission of the alleged offence. He submits that on this ground alone impugned FIR is liable to be quashed.
19. Lastly, it is submitted that the petitioner is a lady and she was not present at the time of commission of offence. She was in USA and she was not keeping in good health therefore, the protection should be granted to her till the chargesheet is filed in the Court.
20. To buttress the aforesaid submissions, learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in the case of Municipal Corporation of Delhi versus Ram Kishan Rohtagi and others: (1983) 1 SCC 1. In paras 10 to 16 of this judgment it has been held as under:-
"10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting any thing, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code.
11. In the instant cases the argument of the appellant before us is that taking the complaint as a whole, it cannot be said that no offence is made out or that the facts mentioned in the complaint do not constitute any offence against the respondents or some of them. On the other hand, the counsel for the respondents submitted that even taking the allegations of the complaint ex facie no case for trial has been made out at all.
12. Before going to the complaint, we might state that it is common ground that the complaint clearly contains the allegations regarding the visit of the Inspector to the shop of respondent No. 6 (Madan Lal) and that the sample taken by him, which was sent to the Public Analyst, was manufactured by Upper Ganges Sugar Mills, Daryagang, Delhi having its registered office at Calcutta and that the Public Analyst found the samples to be adulterated. There is no dispute regarding these facts. The only point on which the contro- versy centres is as to whether or not on the allegations, the Manager as also the other respondents I to 5 committed any offence. The main clause of the complaint which is the subject matter of the dispute is clause No. S which may be extracted thus:
"5. That the accused No. 3 is the Manager, of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of a sampling."
13. According to this clause, accused No. 3 (Ram Kishan) who is respondent No. I in this appeal and accused Nos. 4-7 who are respondent Nos. 2 to 4, were the Directors of the company, respondent No. 5. So far as the Manager, respondent No. 1, is concerned it was not and could not be reasonably argued that no case is made out against him because from the very nature of his duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample. It was, however, contended that there is no allegation whatsoever against the Directors, respondent Nos. 2 to 4.
14. Reliance has been placed on the words 'as such' in order to argue that because the complaint does not attribute any criminal responsibility to accused Nos. 4 to 7 except that they were incharge of and responsible for the conduct of the business of the company. It is true that there is no clear-averment of the fact that the Directors were really incharge of the manufacture and responsible for the conduct of business but the words 'as such' indicate that the complainant has merely presumed that the Directors of the company must be guilty because they are holding a particular office. This argument found favour with the High Court which quashed the proceedings against the Directors as also against the Manager, respondent No. 1.
15. So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.
16. We, however, do not agree that even accused No. 3, respondent No. 1, who is Manager of the Company and therefore directly incharge of its affairs, could fall in the same category as the Directors. Hence, we would set aside that part of the judgment of the High Court which quashes the proceedings against the Manager, respondent No. I (Ram Kishan Rohtagi)."
21. The aforesaid judgment relied on by the learned counsel for the petitioner does not help the case of the petitioner. The facts of the aforesaid case (Supra) are totally different from the facts and circumstances of the present case.
22. In the aforesaid case cited by the learned counsel for the petitioner, the Court found that so far as the Directors of the Company were concerned, there was no evidence to show that there was any act committed by the Directors from which reasonable influence could have been drawn that they could be held vicariously liable for the acts of the Manager. However, in the present case as is evident from the allegations in the First Information Report, the mechanical devices were installed in the Petrol Pump dispensing units on the direction and behest of the owners and the Manager of the Petrol Pump. We are at the stage of quashing of the First Information Report and it is not the stage at where evidence can be looked into or evaluated. Therefore, the aforesaid judgment cited by the learned counsel for the petitioner has no relevance to the facts and circumstances of the present case and is of no help.
23. Learned counsel for the petitioner has also placed reliance on the judgment of the Supreme court in the case of Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others (1983) 1 SCC 1 to buttress the point that in case of a partnership, each of the partners is an agent as well as Principal and he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he is bound by the acts of their partners. However, in case of criminal liability, the penal provisions are required to be strictly construed and the Principle of Vicarious Liability in criminal law does not come into play unless statute specifically provides so.
24. This judgment also does not help the petitioner inasmuch as in the present case evidence stage has not yet come. Evidence is yet to be led. There is specific allegation in the First Information Report that the mechanical devices were installed at the dispensing units of the Petrol Pump concerned in which the petitioner is an active partner with the consent and connivance of the partners and the Manager. When there is direct allegation of active involvement of the petitioner in the commission of the Crime, the question of vicarious liability is not involved and therefore, this judgment has no bearing to the facts and circumstances of the present case.
25. The next judgment relied on by the learned counsel for the petitioner is the judgment of Delhi High Court in the case of Adarsh Marwah vs. Nehar Ranjan Bhhatacharya, 1990 (41) DLT 167 in support of his argument to say that when the petitioner was not involved in day to day affairs of running the Petrol Pump, she cannot be prosecuted for the offences alleged to have been committed by other co-accused.
26. We have already noticed the relevant Clauses of the Partnership deed in the preceding paragraphs. From the deed of partnership, it is clear that it cannot be said that the petitioner was not involved in running and managing the affairs of the petrol pump under partnership with the husband. We cannot examine the evidence at this stage. Prima facie, we are of the opinion that she was not a sleeping partner of the firm as sought to be contended.
27. In view of the aforesaid discussion, we do not find that any of the judgments relied on by the petitioner supports the case for quashing of the First Information Report and to record a finding that the petitioner has not been involved in the commission of crime particularly, when in the partnership deed, she is an active partner responsible for managing the affairs of the Petrol Pump and she is entitled to 45% shares in profit and loss in the business of the partnership running the petrol pump in question.
28. The next submission of the petitioner's counsel that under Section 51 of Legal Metrology Act, 2009 there is bar for invoking the provisions of IPC for offences relating to weight and measures has no force and is wholly misconceived, inasmuch as the offences alleged to have been committed are in addition to the offences committed under the provisions of Legal Metrology Act which is evident from the First Information Report itself. The offences alleged to have been committed are not with respect to weight and measures only as contended by learned counsel for the petitioner.
29. Shri R.K. Dwivedi, learned AGA appearing for the State has submitted that he has strong objection in filing the additional affidavit by the petitioner inasmuch as the accused could not have got the copy of the statement of the witnesses under Section 161 Cr.P.C. recorded by the Investigating Officer. He submits that the Supreme Court in the case of Naresh Kumar Yadav vs Ravindra Kumar and others (2008) (1) SCC 632 has held that even an accused who is inside jail is not entitled to have access to the copy of the statement of the witnesses recorded under Section 161 Cr.P.C. In the present case, the petitioner has not even surrendered before the Court despite warrant and therefore, it is highly improper and illegal for her to have the copies of the statement of the witnesses recorded under Section 161 Cr.P.C. He submits that the additional affidavit annexing the copy of the charge sheet and statement of witnesses under Section 161 Cr.P.C. cannot be taken on record.
30. Learned AGA has placed reliance on paras 11, 12, 13 and 14 of the aforesaid judgment to say that the petitioner could not have access to the case diary and the Court should take serious note when the accused refers to the contents of the case diary to buttress her stand. The para Nos. 11 to 14 of the aforesaid judgment referred to by the learned counsel by the respondent-State are extracted herein below:-
"11. Before we part with the case, we feel it necessary to indicate that both the accused and the informant referred to several portions in the case diary.
12. Sections 207 and 208 of the Code deal with documents which are commonly known as police papers, which are to be supplied to the accused. The said sections read as follows:
"Section 207- Supply to the accused of copy of police report and other documents: In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under Section 154;
(iii) the statements recorded under sub- section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
Section 208- Supply of copies of statements and documents to accused in other cases triable by Court of Session- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the statements recorded under Section 200 or Section 202, or all persons examined by the Magistrate;
(ii) the statements and confessions, if any, recorded under Section 161 or Section 164;
(iii) any documents produced before the Magistrate on which the prosecution proposes to rely:
Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court."
13. The documents in terms of Sections 207 and 208 are supplied to make the accused aware of the materials which are sought to be utilized against him. The object is to enable the accused to defend himself properly. The idea behind the supply of copies is to put him on notice of what he has to meet at the trial. The effect of non-supply of copies has been considered by this Court in Noor Khan v. State of Rajasthan (AIR 1964 SC 286) and Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble and Anr. (2003 (7) SCC 749). It was held that non-supply is not necessarily prejudicial to the accused. The Court has to give a definite finding about the prejudice or otherwise. Even the supervision notes cannot be utilized by the prosecution as a piece of material or evidence against the accused. If any reference is made before any court to the supervision notes, as has noted above they are not to be taken note of by the concerned court. As many instances have come to light when the parties, as in the present case, make reference to the supervision notes, the inevitable conclusion is that they have unauthorized access to the official records.
14. Further, it is baffling to note that the accused and informant referred to particular portions of case diary. At the stage the bail applications were heard by the High Court, legally they could not have been in a position to have access to the same. The papers which are to be supplied to the accused have been statutorily prescribed. The Courts should take serious note when the accused or the informant refers to the case diary to buttress a stand."
31. Learned counsel for the petitioner however, submits that he has obtained the copy of the entire charge sheet including the case diary from the accused who has been arrested and therefore, there is no illegality in filing the present additional affidavit containing charge sheet and statement of witnesses recorded by the Investigating Officer under Section 161 Cr.P.C. during the course of investigation.
32. We do not agree with the contention of the learned counsel for the petitioner. In view of the judgment of the Supreme Court (Supra), under the statutory prescription in Cr.P.C., even the accused inside the jail is not entitled to have the copies of the statement of the witnesses before framing of the charges. We therefore, do not think it proper to refer to the statement of the witnesses recorded under Section 161 Cr.P.C. and the additional affidavit filed by the petitioner cannot be taken on record. We cannot refer to the statement of the witnesses recorded under Section 161 Cr.P.C. at this stage to decide whether a prima facie offence is made out against the petitioner or not. We are at the stage of quashing of the First Information Report and, therefore, the additional affidavit containing the statement of the witnesses under Section 161 Cr.P.C. is not taken on record.
33. Shri Dwivedi has further submitted that this Court in several judgments relating to Petrol Pump matters where similar devices were installed and First Information Reports have been lodged, has declined any relief to the petitioners including to one where plea was taken that accused was a lady and sleeping partner in the firm running the petrol pump.
34. Learned counsel for the State in support of his submission has placed reliance on the judgment of this Court in the case of Writ Petition No.9552 (M/B) of 2017 Bijendra Nath Shukla vs. State of U.P. and others decided on 3.5.2017.
Paras 7 to 11 of the aforesaid judgment read as under:
"7. Considering the allegations made in the impugned First Information Report it prima facie becomes evident that the machinery involved in delivering fuel had been tampered with. For every litre of fuel purchased by consumer, the consumer was cheated of some quantity. Consequently a large number of consumers have been cheated by way of intentional acts of the accused. It was a premeditated scheme of the accused for monetary gain to themselves. The accused were short measuring the fuel sold. Evidently remote control which was being used for activating machine has been recovered from one of the operators. Evidence is available on record to prima facie indicate commission of offence.
8. We have taken into account the fact that investigation is at inceptive stage, the crime having been registered on 28.04.2017. Any order passed in writ jurisdiction is likely to interfere in the investigation process. Thorough and aggressive investigation in the matter is required so that the truth can be culled out, and all involved in committing the offence are exposed and brought to book.
9. We have taken note of the fact that the fuel dispensing machine were tampered with with the aid of the gadgets, operated by the operators of the petrol pump. Even scientific and qualitative investigation in the matter is required.
10. It is also required to be considered, as to under what circumstances, such offences were being committed in the past by a large number of petrol pumps, however, no action was taken. Involvement of officials of various agencies involved in checking petrol pumps cannot be ruled out and therefore their conduct is also required to be investigated.
11. Considering totality of facts and circumstances of the case, we are of the opinion that evidences can not be taken by way of affidavits and counter affidavits to record a finding that the machine had not been tampered with by the operators of the petrol pump. No such material has been placed on record which can be translated into legal evidence so as to disprove the allegations made in the First Information Report."
35. Similar order has been passed in Writ Petition No.29424 of 2017, Smt. Jameel Ara Faeooqui vs. State of U.P. and others decided on 6.12.2017. Paras 2 to 7 of this order read as under:
"2. Gist of the allegations appears to be that M/s. Lucknow Filling Station is being run by a partnership concern. In para 7 of the petition, it has been admitted by the petitioner that the petitioner is one of the partners. In the course of raid by the raiding party, it was found that three dispensing units were mechanically tampered with. One of the units was short supplying 150 ml out of every five litres of fuel. The other unit was short supplying 220ml and the third unit was short supplying 240ml out of every five litres of fuel.
It has come in evidence that the mechanical tampering had been going on for the last about one year. Remote controls have been recovered.
3. Contention of learned counsel for the petitioner is that the petitioner is a lady and had nothing to do with the tampering.
4. We have considered the contention of learned counsel. The petitioner being a partner, surely is a beneficiary of the illegal activities conducted by the Manager and others. At this point in time, a presumption cannot be drawn that the petitioner has not benefitted from commission of the offence or was not in the know of the fact that the machines installed at her petrol pump have been tampered with.
5. We have taken serious note of the fact that during the raid, mechanical devices have been recovered and statement of the co-accused was recorded indicating prima facie that offence has been committed.
6. We are of the considered opinion that every consumer who took petrol/diesel from the three tampered dispensing units has been cheated.
7. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that the offence has not been committed. No such material has been placed on record which would disprove the allegations made in the First Information Report."
36. There are several other judgments and orders where the similar relief as prayed in the present writ petition has been denied by this Court in exercise of its powers under Article 226 of the Constitution of India.
37. The Supreme Court in the case of State of Haryana and others vs. Ch. Bhajan Lal and others, (1992) Supp. (1) SCC 335, has laid down certain conditions under which the court may consider quashing of proceedings in exerciser of its powers under Article 226 of the Constitution of India or under Section 482 Cr.P.C. in the following terms:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
38. It would be apt to note the judgment on the issue rendered by the Supreme Court of India in Rajiv Thappar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. In Rajiv Thappar's case (supra), the following (relevant portion) has been held:-
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:
30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
(Emphasised by us) 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
39. Considering the submissions, material and pleadings relied on by the learned counsel for the petitioner, assertions/allegations in the First Information Report cannot be ruled out. The material produced is not of sterling and impeccable quality to persuade this Court that the accusation in the First Information Report are false and unfounded.
40. The investigation is at an inceptive stage, the evidence cannot be considered on the affidavit/counter affidavits of the parties and, therefore, under the facts and circumstances of the case, we do not find any ground to interfere with the impugned First Information Report in exercise of the extra-ordinary jurisdiction under Article 226 of the Constitution of India to quash the impugned First Information Report.
41. The writ petition is thus, dismissed.
Order Date :- 09.01.2018 prateek/Pks