Madhya Pradesh High Court
Narendra Singh Baghel vs State Of M.P on 15 February, 2017
M.Cr.C. No.5819/2012
1
(Narendra Singh Vs. State of M.P.)
15.02.2017
Shri R.K.Sharma, counsel for the applicant.
Mohd. Irshad, Panel Lawyer for the respondent
No.1/State.
None for the respondent No.2 though served. This petition under Section 482 of Cr.P.C. has been filed for quashing the FIR registered by Police Station Chinor, District Gwalior in Crime No.27/2012 under Sections 419, 420, 467, 468, 471, 120B and 34 of IPC.
Before considering the facts of the case, it would be essential to take note of certain developments which had taken place during the pendency of this petition. By reply dated 04.11.2016, it was mentioned by the respondent No.1/State that as there was an interim order passed by this Court on 01.08.2012 directing that no coercive steps, like arrest, shall be taken against the applicant therefore, the charge-sheet has not been filed against the applicant, although, the charge-sheet has been filed against the remaining accused persons. Another reply was filed on 28.11.2016, in which it was mentioned that the applicant is absconding and, therefore, the proceedings under Section 82 of Cr.P.C. have been initiated and the JMFC has issued arrest warrant against the applicant and the applicant is still not traceable. In view of this reply filed by the State, this Court by order dated 16.12.2016 directed the applicant to appear before the Investigating Officer on 21.12.2016 and on all dates fixed thereafter, before the Investigating Officer and shall cooperate with him in the investigation. The applicant has filed certain documents thereafter, to M.Cr.C. No.5819/2012 2 show that in compliance of the order dated 16.12.2016 passed by this Court he has appeared before the Investigating Officer and is cooperating in the investigation. The State counsel has not denied this fact that the applicant has appeared before Investigating Officer and is cooperating with the investigation.
Under these circumstances, this Court is of the considered opinion that since, the applicant is appearing before the Investigating Officer therefore, now at this stage, it cannot be said that he is absconding.
Accordingly, the petition is heard on merits. The facts necessary for the disposal of the present application in short are that the complainant Chhotelal lodged a report in Police Station Chinor, District Gwalior, alleging that he is the owner of certain land situated in Village Bhori and co-accused Ramvilas Goswami prepared a forged power of attorney in his name allegedly executed by Chhotelal in his favor and, thereafter, on the basis of the said forged power of attorney the co-accused executed the sale-deed in favor of son of Ramvilas Goswami by affixing the photographs of the complainant. On the basis of written report of the complainant Chhotelal, the police registered the FIR in Crime No.27/2012 for offence punishable under Sections 419, 420, 467, 468, 471, 120B and 34 of IPC. It was the contention of the complainant that on 08.07.2011, the co-accused Ramvilas Goswami got a forged power of attorney in his favor allegedly executed by the complainant. It was alleged that the co-accused Vijay Singh had impersonated as complainant. Hari Om Sharma and Rampuri had signed the forged power of M.Cr.C. No.5819/2012 3 attorney as witnesses. On the basis of this power of attorney, on 23.11.2011 by affixing the photographs of the complainant, the co-accused Ramvilas Goswami executed the sale-deed in favor of Vijay Singh and his son Rampuri. Hari Om Sharma and Rajendra Sharma had signed the sale-deed as witnesses. It was alleged in the written report that the applicant had drafted the forged power of attorney as well as the sale-deed therefore, he had also helped the co-accused persons in playing fraud.
It is contended by the counsel for the applicant that the applicant is an Advocate by profession and is practicing in Dabra District, Gwalior. It is his professional duty to draft the documents as required by his clients. It is further submitted that unless and until there is some element of conspiracy between the applicant and the co-accused persons, then merely in discharge of his professional duty, if the applicant had drafted certain documents then, that by itself would not be sufficient to hold that the applicant has also committed an offence as alleged by the complainant. It is further submitted that the applicant in the capacity of an Advocate earns his livelihood by drafting the documents and by representing the clients before the Courts, and also by arguing on their behalf. Therefore, it cannot be said that by drafting this power of attorney or sale-deed which according to the complainant is a forged document the applicant in any manner, has committed any offence.
Per contra, the counsel for the applicant submitted that although there is no other evidence on record to show that the applicant except by drafting the power of attorney M.Cr.C. No.5819/2012 4 and the sale-deed has done anything else but, it is a matter of evidence that whether the applicant was a part of the conspiracy or not. Accordingly, it was submitted that the FIR at this stage, may not be quashed.
Heard the learned counsel for the parties. Undisputedly, the applicant is an advocate by profession and he is practicing as a lawyer in District Court Dabra, District Gwalior. An Advocate earns his livelihood by drafting documents, by representing their clients before the Court and, therefore, it is their professional duty to draft documents on the instructions of the clients or to represent them in the Court of law. Thus, merely because a document has been drafted by an advocate, that by itself would not be sufficient to prima facie hold that if, such document is subsequently found to be a forged document, then the advocate was also a part of the conspiracy. In such a situation, there should be something more to show that the advocate knew this fact that the person who has given instructions infact is impersonating himself as other person.
During the investigation the police had recorded the statement of one S.B.Singh Sub-Registrar, Dabra. He in his statement has stated that on 08.07.2011 a document was produced by so called Chhotelal@Chota for execution of power of attorney and the said person had projected himself as Chhotelal and after comparing with the photographs affixed on the said power of attorney and in the presence of the witnesses Hari Om Sharma and Rampuri who had produced their ration card by way of their identity proof, the power of attorney was registered.
M.Cr.C. No.5819/2012 5It was further stated by him that in fact Ram Vilas Goswami has prepared a forged power of attorney. Thus, from the statement of this witness, it is clear that the applicant had not appeared before the Sub-Registrar, Dabra, District Gwalior for the purposes of execution of the said power of attorney.
Ramlal Ahirwar, Sub-Registrar, has stated that on the basis of the power of attorney executed on 08.07.2011, he had registered the sale-deed in favor of Rampuri and Vijay Singh in the presence of two persons namely Hari Om Sharma and Rajendra. The holder of power of attorney had stated that he knows all the persons who are present before the Sub-Registrar and the identity proof and the affidavits were also given by them. This witness has also not stated that at the time of execution of the sale-deed, the applicant was present before him.
On going through the power of attorney which was executed on 08.07.2011, it is seen that at the bottom of the said document, it is mentioned that "drafted by N.S.Baghel, Advocate, District-Dabra." Except this no other action was taken by the present applicant. Similarly, on going through the sale-deed dated 23.12.2011 it is found that at the bottom of the sale-deed it is mentioned that "drafted by me N.S.Baghel, Advocate, District-Dabra." In this document also nothing else was done by the present applicant. In both the documents neither he identified the executant of the sale-deed nor witnesses. Under these circumstances, this Court is of the view that merely, by drafting the power of attorney dated 08.07.2011 and sale- deed dated 23.12.2011, it cannot be said that the applicant M.Cr.C. No.5819/2012 6 has committed any offences punishable under Sections 149, 420, 467, 468, 471, 120B and 34 of IPC.
The Supreme Court in the case of State of Haryana and Ors. Vs. Bajan Lal & Ors. reported in 1992 Supp (1) SCC 335 has held as under:-
"102. 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 formulate and to give an exhaustive list of myriad kinds of cases wherein such power 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 FIR 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 M.Cr.C. No.5819/2012 7 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."
The Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :
"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only M.Cr.C. No.5819/2012 8 difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the 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 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 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 M.Cr.C. No.5819/2012 9 High Court should be loath 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 the Code 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 M.Cr.C. No.5819/2012 10 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 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 therewith 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) of the Code, 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 the Code or that the 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 M.Cr.C. No.5819/2012 11 or more) 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 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."
Thus, if the allegations as contained in the FIR are considered in the light of the judgment passed by the Supreme Court it would be clear that if the entire allegations are accepted in toto, even then no offence is made out against the applicant.
Accordingly, the FIR in Crime No.27/2012 and the investigation against the applicant are hereby quashed. The application under Section 482 of Cr.P.C. therefore, succeeds and allowed.
(G.S.Ahluwalia) Judge Sha