Madhya Pradesh High Court
Irfan Malik vs The State Of Madhya Pradesh on 22 May, 2020
Equivalent citations: AIRONLINE 2020 MP 1681
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
HIGH COURT OF MADHYA PRADESH : JABALPUR.
S.B : HON'BLE SHRI JUSTICE RAJENDRA KUMAR SRIVASTAVA
M.CR.C. NO.34010/2019
Irfan Malik.
Vs.
State of Madhya Pradesh & another.
PRESENT :
Shri Manish Datt Senior Advocate with Shri T.P. Jaiswal, learned
counsel for the petitioner.
Shri Gulab Singh, Panel Lawyer for the respondent
No.1.
Shri Manoj Kumar Sharma, Advocate and Shri Quazi Fakhruddin,
Advocate for the respondent No.2-State.
ORDER
( .5.2020) Accused/petitioner has filed the instant petition under Section 482 of the Cr.P.C. (in short ''the Code'') to quash the FIR No.541/2019, under Section 420 of Indian Penal Code and Section 3(1)(dha) of SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the Act for short) registered at Police Station Dindori (MP).
2: Briefly stated facts of the case are that complainant/ respondent No.2 is a member of Scheduled Tribe and accused/petitioner is not a member of Scheduled Caste/ Scheduled Tribe. In the year 2018, the election of Legislative Assembly, Madhya Pradesh, was held. Complainant/ respondent No.2 is resident of Village Ganeshpur, District Dindori. He wanted to contest the election of said assembly as a member of Indian National Congress Party. Accused/petitioner promised him to get a 2 ticket of Member of Legislative Assembly, but he cheated him and received some amount during the period from 10.9.2017 to 29.7.2019. Complainant/ respondent No.2 had given Rs.20,000/-, 30,000/-, 35,000/-, 40,000/-, 2000/-, 3000/-, 4000/-, 5000/-, 10,000/-, 14,000/- and 15,000/- respectively to the accused/petitioner in order to get the ticket of Member of Legislative Assembly. Complainant/ respondent No.2 had also booked his train ticket on 18.1.2018. Complainant/respondent No.2 had also transferred Rs.10,000/- in the SBI account of accused/ petitioner, but the complainant/respondent No.2 did not get any ticket from the Indian National Congress Party. Thereafter, he enquired the matter. It came to his knowledge that accused/petitioner did not give any proposal for his ticket to the office of Indian National Congress Party, then complainant/respondent No.2 demanded his amount. The accused/petitioner only returned Rs.18,000/- on 29.7.2019. Complainant/ respondent No.2 again demanded his amount, then accused/petitioner abused him by the name of his caste and told him that he will never return the balance amount i.e. Rs.3,65,000/- to the complainant/respondent No.2. Thereafter, complainant/respondent No.2 lodged FIR in Police Station Dindori, which was registered as Crime No.0541/2019 under Section 420 of Indian Penal Code and Section 3(1)(dha) of the said Act.
3: Learned counsel for the accused/petitioner submits that accused/petitioner is a practising lawyer at Dindori. Accused/petitioner being a member of District Bar Association, Dindori, had gone and raised a protest (Dharna) and had led the procession against the Cabinet 3 Minister Mr. Markam Singh, Tribal Welfare Department. Accused/ petitioner has raised demonstration which came in the knowledge of Mr. Omkar Singh Markam, then Mr. Onkar Singh Markam got the case registered against the accused/petitioner with the assistance of the first informant i.e. complainant/ respondent No.2, who is close to Mr. Omkar Singh Markam. Thereafter, State Bar Council wrote a letter to the Inspector General of Police against the said act. No offence under Section 420 of IPC and Section 3(1) (dha) of the Act is made out against the accused/petitioner and complainant/respondent No.2 was not known to him and the complainant/ respondent No.2 had not paid Rs.10,000/- in the account of the accused/ petitioner. Accused/petitioner has never taken any amount of money for the purpose of getting the ticket. Accused/ petitioner is innocent. All the allegations levelled against the accused/ petitioner are false. Necessary ingredients to constitute the said offence are completely missing in the present case. Accused/ petitioner has no connection directly or indirectly with the said offence. It is quite clear that prima facie no offence is made out against the accused/ petitioner from the contents of the FIR. So, registration of FIR against the accused/petitioner is a misuse of process of law. Therefore, this Court may invoke inherent jurisdiction and set aside the FIR No.541/2019 registered at Police Station Dindori.
4: Learned Panel Lawyer for the respondent No.1 State and learned counsel for the complainant/respondent No.2 submit that from bare perusal of FIR prima-facie allegation of Section 415 of IPC read with Section 3(1)(dha) of the said Act is made out. Complainant/ respondent No.2 has 4 no relation with the Cabinet Minister, Tribal Welfare Department. Therefore, the accused/petitioner cannot question the legitimacy of prosecution in which he has actively committed fraud and cheated with complainant/ respondent No.2, who is the member of Scheduled Tribe. So, it is not a fit case to invoke inherent jurisdiction to set aside or quash the FIR. Learned counsel for the accused/ petitioner relied upon the judgment in the case of Lalita Kumari Vs. Govt. of Uttar Pradesh and others [2014(2) SCC 1].
5: Heard both the parties and perused the record.
6: Firstly, it would be appropriate to see the scope of Section 482 of the Code to quash the FIR, which reads as under :-
"Sec.482. Saving of inherent powers of High Court.- Nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
7: In the case of State of Orissa Vs. Saroj Kumar Sahoo [(2005) 13 SCC 540], it has been held in paras 11, 12, 13 & 14, as under :-
"11. As noted above, the powers possessed by the High Court under Section 482 of the Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts 5 are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary, [1992] 4 SCC 305, and Raghubir Saran (Dr.) v. State of Bihar, AIR (1964) SC 1). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar, [1990] Supp SCC 686, State of Bihar v. P. P. Sharma , AIR (1996) SC 309, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, [1995] 6 SCC 194, State of Kerala v. O.C. Kuttan, AIR (1999) SC 1044, State of U.P. v. O.P. Sharma, [1996] 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, [1997] 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi, AIR (1996) SC 2983 and Rajesh Bajaj v. State NCT of Delhil, [1999] 3 SCC 259).
12. The above position was again re-iterated in State of Karnataka v. M. Devendrappa and Anr., [2002] 3 SCC 89 and State of M.P. v. Awadh Kishore Gupta and Ors., [2004] 1 SCC 691.
13. In Jehan Singh v. Delhi Administration, AIR (1974) SC 1140 while considering a case under Section 561-A of the Code of Criminal Procedure, 1898 (in short the `Old Code') corresponding to Section 482 of the Cr.P.C., it was observed as 6 follows :
"Where at the date of filing the petition under Section 561-A, no charge sheet or a complaint has been laid down in Court and the matter is only at the stage of investigation by Police, the Court cannot, in exercise of its inherent jurisdiction under Section 561- A, interfere with the statutory powers of the Police to investigate into the alleged offence and quash the proceedings. Even assuming that the allegations in the FIR are correct and constitute an offence so as to remove the legal bar to institute proceedings in Court, the Court cannot at that stage appraise the evidence collected by the Police in their investigation. Any petition under Section 561-A at such a stage is, therefore, premature and incompetent."
14. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan (Smt.) v. Jawahar Lal and Ors., [1992] 3 SCC 317, it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Cr.P.C., which cannot be termed as evidence without being tested and proved."
8: In the case of Dineshbhai Chandubhai Patel Vs. 7 State of Gujrat and others [(2018) 3 SCC 104], it has been held in paras 26 to 30, as under :-
"26. The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled.
27. This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle:
"Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.
The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences."
28. Keeping in view the aforesaid principle of law, which was consistently followed by this Court in later 8 years and on perusing the impugned judgment, we are constrained to observe that the High Court without any justifiable reason devoted 89 pages judgment (see-paper book) to examine the aforesaid question and then came to a conclusion that some part of the FIR in question is bad in law because it does not disclose any cognizable offence against any of the accused persons whereas only a part of the FIR is good which discloses a prima facie case against the accused persons and hence it needs further investigation to that extent in accordance with law.
29. In doing so, the High Court, in our view, virtually decided all the issues arising out of the case like an investigating authority or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code at this stage.
30. The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.
31. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and visa-se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. "
9: In the case of State of Tamil Nadu Vs. S. Martin 9 and others [(2018) 5 SCC 718], it has been held in para 8, as under :-
"8. We are not expressing any opinion on merits or demerits of either the case of the prosecution or the defence of the accused, but we are of the firm opinion that while the investigation was still incomplete, the High Court ought not to have interfered in the present case. Leaving all questions open to be agitated at appropriate stages in the proceeding, we set aside the view taken by the High Court and allow these appeals......"
10 : It is evident from the aforesaid Section that ingredients of Section 420 of IPC are; (i) deception of any person, (ii) fraudulently or dishonestly inducing any person to deliver any property to any person, (iii) to consent that any person shall retain any property and finally intentionally inducing any person to do or omit to do anything which he would not do or omit.
11 : In the instant case, complainant/ respondent No.2 alleged that he wanted to contest the Legislative Assembly Election of Madhya Pradesh. He also alleged that he contacted the accused/petitioner in this regard. Accused/petitioner promised him to get ticket from Indian National Congress Party, but he demanded some amount. Thereafter, complainant/ respondent No.2 gave handsome amount to get ticket for said Legislative Assembly Election from National Congress Party, but when final list of candidates for Legislative Assembly Election, was declared by Indian National Congress Party, then it came to the knowledge of complainant/ respondent No.2 that he could not get ticket from the Indian National Congress Party, thereafter, he 10 enquired about the matter and it came to his knowledge that accused/petitioner did not do any work in this regard. Thereafter, complainant/ respondent No.2 demanded his amount, then accused/ petitioner only returned Rs.10,000/- to him. So, prima facie, it is established that accused/ petitioner received handsome amount on the pretext to get a ticket of Legislative Assembly Election of Madhya Pradesh, Bhopal, from the Indian National Congress Party. Thus, prima facie ingredient of cheating is available on record and cognizable offence is made out against the accused/petitioner. It is mandatory to register the FIR if prima facie cognizable offence appears against a person.
12 : The allegation of accused/petitioner that he is a practising Advocate. He has been falsely implicated in this case by the then Cabinet Minister. Such type of allegation will be investigated at the time of investigation. Prima facie it cannot be said that cognizable offence is not made out against the accused/petitioner. Therefore, considering the view established by principle of Hon'ble Apex Court, inherent jurisdiction cannot be invoked to quash the FIR registered against the accused/ petitioner.
13 : Accordingly, this Court does not find any scope to exercise inherent jurisdiction in this petition filed by the accused/petitioner under Section 482 of the Code. The M.Cr.C. is hereby dismissed.
(RAJENDRA KUMAR SRIVASTAVA) JUDGE A.Praj.
Digitally signed by ASHWANI PRAJAPATIDate: 2020.05.22 16:41:21 +05'30'