Madhya Pradesh High Court
Smt. Pratibha Dixit vs The State Of Madhya Pradesh on 3 March, 2020
Author: Rajeev Kumar Shrivastava
Bench: Sheel Nagu, Rajeev Kumar Shrivastava
1
M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020
HIGH COURT OF MADHYA PRADESH
Bench at Gwalior
Division Bench
Hon'ble Shri Justice Sheel Nagu
&
Hon'ble Shri Justice Rajeev Kumar Shrivastava
Misc. Cri. Case No. 205/2020
Ganga Prasad Jatav
Versus
State of M.P. & Ors.
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Shri Prashant Sharma, learned counsel for the petitioner.
Shri F.A. Shah, learned Public Prosecutor for respondent No.1/State.
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Misc. Cri. Case No. 4022/2020
Smt. Pratibha Dixit
Versus
State of M.P.
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Shri Praveen Kumar Mishra, learned counsel for the petitioner.
Shri F.A. Shah, learned Public Prosecutor for the respondent/State.
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ORDER
(03/03/2020) Per Rajeev Kumar Shrivastava,J.:
This order shall govern the disposal of M.Cr.C. No.205/2020 (Ganga Prasad Jatav Vs. State of M.P. & Ors.) and M.Cr.C. No.4022/2020 (Smt. Pratibha Dixit Vs. State of M.P.), as both the petitions have been filed for getting similar relief.
2. The facts are taken from M.Cr.C. No.205/2020:
Petitioner has filed this petition under Section 482 of Cr.P.C. for quashment of the FIR registered as Crime No.417/2019 at Police 2 M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 Station Datia Civil Lines, District Datia for the offences punishable under Sections 420, 409, 407, 120-B of IPC and Sections 13(1)(c), 13(1)(d), 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988.
3. Learned counsel for the petitioner submitted that the petitioner is District Manager in Warehouse Corporation. The Warehouse is meant for preserving grains. Warehouse Corporation has conducted an ex- parte enquiry against the petitioner wherein, the petitioner has been wrongly implicated. It is further submitted that no grains were received at the Warehouse, therefore, neither the Surveyor of NAFED nor the Warehouse authorities have ever issued any document. The work of society was to issue truck challan. On the basis of issuance of the truck challan, it is assumed and presumed that the society has procured the goods and transported the same while since these goods were never received at the Warehouse, therefore, no question arises for issuing any receipt by the Warehouse and therefore, no payment was made by MARKFED. In the aforesaid situation, the petitioner has been wrongly involved in this case by conducting ex-parte enquiry.
4. Learned counsel has further submitted that FIR is bad in law. Without deciding objections raised by the petitioner, FIR has been registered. In the enquiry conducted by Warehouse Corporation no fault was found on the part of the employee. Flow chart in relation to the complete process shows that it was online and there exists no Warehouse receipt and no payment has been made, therefore, for the fault of the society, the employee of other department cannot be held 3 M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 responsible. Counsel for the petitioner submits that registration of the FIR is in clear violation of the directives issued by the Apex Court. There are two independent Surveyors, who are authorized to test the quality of grains. The allegation made against the present petitioner is that seven trucks loaded with grains were transported by procuring society and those have not been shown in the stock of Warehouse, which is not correct. It can be verified from the following facts:-
(i) no quality report of surveyor of NAFED is there.
(ii) No ware house receipt has been issued.
(iii) no payment has been made by MARKFED
(iv) Online OTP generated for these truck load.
5. It is further contended that society has created documents offline, which is impermissible. On account of such fault of society, FIR has been registered against the petitioner. Learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Haryana Vs. Chaudhary Bhajanlal reported in AIR 1992 SC 604, wherein it has been held as under:
"(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;4
M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 (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 FIR 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 mala fide 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."
6. Learned counsel for the petitioner has also submitted that in the order dated 30.11.2019 passed in W.P. No.24510/2019, learned Single Judge has specifically observed as under:
"It is needless to say that unless and until enquiry report is accepted by the competent authority, the apprehension expressed by the petitioner that FIR can be lodged against him is misconceived." Therefore, in the light of the 5 M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 above finding, FIR registered is also liable to be quashed."
Thus, on the basis of aforesaid submissions, petitioner prayed for quashment of the FIR registered as Crime No.417/2019 at Police Station Datia Civil Lines, District Datia.
7. Learned Public Prosecutor for the State has opposed the submissions and has submitted that it is apparent from the evidence collected during investigation that the offence registered under Sections 420, 409, 407, 120-B of IPC and Sections 13(1)(c), 13(1)(d), 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 has been committed by the petitioner. Hence prayed for rejection of this petition.
We have considered rival submissions of the parties and perused the documents available on record.
8. In Amit kapoor Vs. Ramesh Chander and Anr. (2012) 8 SCC 460, the Hon. Apex Court has observed as under:-
27.1. 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.
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.
27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for 6 M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. 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.
27.5. 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.
27.6. 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. 27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. 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.
27.9. 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.
27.10. 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.
27.11. 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.
27.12. In exercise of its jurisdiction under Section 228 7 M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 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.
27.13. 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.
27.14. 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.
27.15. 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.
27.16. These are the principles which individually and preferably cumulatively (one or more) are to be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the Court 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."
9. It has been held by the Apex Court in the case of Chaudhary Bhajanlal (supra) that when allegations in complaint clearly constitute cognizable offence, then quashing of FIR is not justified. Similarly, in the case of State of Orissa and another vs. Saroj Kumar Sahoo [(2006) 2 SCC 272], it has been observed that inherent powers are to be exercised sparingly and that too in the rarest of rare cases and the High 8 M.Cr.C. No.205/2020 & M.Cr.C. No.4022/2020 Courts should not embark upon an inquiry as to reliability of evidence to sustain the allegations, which is the function of the trial Court.
10. Truthfulness or falsehood of allegations made by the complainant in his complaint is to be established by evidence to be produced before the trial Court and only looking to the FIR it cannot be inferred that prima facie no offence is made out against the present petitioner. Therefore, in the case in hand, there is no question of invoking inherent powers vested in this Court under Section 482 of Cr.P.C. for quashing of FIR.
11. In view of the aforesaid discussion, looking to the offences charged against the petitioner, we are of the view that no ground is made out for quashing the FIR. Resultantly, both the petitions (M.Cr.C. No.205/2020 and M.Cr.C. No.4022/2020) are meritless and are hereby dismissed having no substance.
A copy of the order be sent to the trial Court concerned for information.
(Sheel Nagu) (Rajeev Kumar Shrivastava)
Judge Judge
shanu
SHANU RAIKWAR
2020.03.04
13:18:11 -08'00'