Madhya Pradesh High Court
Kushal Yadav vs The State Of Madhya Pradesh on 12 October, 2023
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
MCRC No. 44782 of 2023
(KUSHAL YADAV AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 12-10-2023
Shri Sanjay Singh - Advocate for petitioners.
Shri Santosh Yadav - Government Advocate for State.
Case diary is not available. It be called for.
The petitioners have filed this petition under Section 482 for quashing of
F.I.R. and criminal proceedings arising out of it.
Learned counsel appearing for petitioners submits that petitioners have
been granted license by Excise Department bearing License No.47/2023/0003
and License no.47/2022/2021.
It is submitted that since petitioners are license holder and act of
petitioners only amounts to breach of conditions of license and not to
committing an offence under Section 34 of Excise Act, therefore, respondent
has committed an error in registering an F.I.R. against him. It is also submitted that in cases of breach of conditions of license, complaint case is to be filed by Collector or by an officers authorized by him of Excise Department. Due to said violation petition be allowed and F.I.R. may be quashed.
Learned Government Advocate is directed to call the case diary and file reply.
Petitioners have also filed an application for stay of further proceedings arising out of F.I.R. Challan is yet to be filed in Court and proceedings are to begin before the trial Court. Therefore, no stay over the proceedings in cases can be granted to the petitioners.
Learned counsel for petitioners submitted that petitioners may be arrested Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 13-10-2023 15:04:54 2 when they appear before the Court at the time of filing of charge-sheet. In this circumstances, he may be granted interim protection.
It is needless to say that Hon'ble Supreme Court in the case of Satender Kumar Antil vs. CBI, reported in (2022) 10 SCC 51 has held in para 44 as under:-
44. This Court in Siddharth v. State of U.P., (2021) 1 SCC 676 , has held that:
"4. .....There are judicial precedents available on the interpretation of the aforesaid provision albeit of the Delhi High Court.
5. In High Court of Delhi v. CBI [High Court of Delhi v. CBI, 2004 SCC OnLine Del 53 : (2004) 72 DRJ 629], the Delhi High Court dealt with an argument similar to the contention of the respondent that Section 170 CrPC prevents the trial court from taking a charge-sheet on record unless the accused is taken into custody. The relevant extracts are as under : (SCC OnLine Del paras 15-16 & 19-20) "15. Word "custody" appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the investigating officer before the Court at the time of filing of the charge-sheet whereafter the role of the Court starts. Had it not been so the investigating officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.
16. In case the police/investigating officer thinks it Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 13-10-2023 15:04:54 3 unnecessary to present the accused in custody for the reason that the accused would neither abscond nor would disobey the summons as he has been cooperating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody.
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19. It appears that the learned Special Judge was labouring under a misconception that in every non- bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.
20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of cooperation is provided by the accused to the investigating officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the investigating officer concerned or officer in charge of the police station thinks that presence of the accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out."
6. In a subsequent judgment the Division Bench of the Delhi High Court in High Court of Delhi v. State [High Court of Delhi v. State, 2018 SCC OnLine Del 12306 :
(2018) 254 DLT 641] relied on these observations in High Court of Delhi [High Court of Delhi v. CBI, 2004 SCC Signature Not Verified OnLine Del 53 : (2004) 72 DRJ 629] and observed that it Signed by: MOHD IRFAN SIDDIQUI Signing time: 13-10-2023 15:04:54 4 is not essential in every case involving a cognizable and non-bailable offence that an accused be taken into custody when the charge-sheet/final report is filed.
7. The Delhi High Court is not alone in having adopted this view and other High Courts apparently have also followed suit on the proposition that criminal courts cannot refuse to accept a charge-sheet simply because the accused has not been arrested and produced before the court.
8. In Deendayal Kishanchand v. State of Gujarat [Deendayal Kishanchand v. State of Gujarat, 1982 SCC OnLine Guj 172 : 1983 Cri LJ 1583], the High Court observed as under : (SCC OnLine Guj paras 2 & 8) "2. ... It was the case of the prosecution that two accused i.e. present Petitioners 4 and 5, who are ladies, were not available to be produced before the court along with the charge-sheet, even though earlier they were released on bail. Therefore, as the court refused to accept the charge-sheet unless all the accused are produced, the charge-sheet could not be submitted, and ultimately also, by a specific letter, it seems from the record, the charge-sheet was submitted without Accused 4 and 5. This is very clear from the evidence on record.
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8. I must say at this stage that the refusal by criminal courts either through the learned Magistrate or through their office staff to accept the charge-sheet without production of the accused persons is not justified by any provision of law. Therefore, it should be impressed upon all the courts that they should accept the charge-sheet whenever it is produced by the police with any endorsement to be made on the charge-sheet by the staff or the Magistrate pertaining to any omission or requirement in the charge-sheet. But when the police submits the charge-sheet, it is the duty of the Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 13-10-2023 15:04:54 5 court to accept it especially in view of the provisions of Section 468 of the Code which creates a limitation of taking cognizance of offence. Likewise, police authorities also should impress on all police officers that if charge-sheet is not accepted for any such reason, then attention of the Sessions Judge should be drawn to these facts and get suitable orders so that such difficulties would not arise henceforth."
9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 CrPC that it does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge- sheet.
10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 13-10-2023 15:04:54 6 made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] . If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.
11. We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar case [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a prerequisite formality to take the charge-sheet on record in view of the provisions of Section 170 CrPC. We consider such a course misplaced and contrary to the very intent of Section 170 CrPC."
In these circumstances, no separate proceedings is required to be given to the petitioners.
Trial Court is directed to comply with the directions issued by the Hon'ble Supreme Court as mentioned above.
List the matter in week commencing 20.11.2023.
(VISHAL DHAGAT) JUDGE irfan Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 13-10-2023 15:04:54