Rajasthan High Court - Jodhpur
Rohit Khatri vs State & Anr on 9 December, 2016
Author: P.K. Lohra
Bench: P.K. Lohra
(1 of 12 )
[CRLMP-3617/2016]
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR
S.B.CRIMINAL MISC(PET.) NO. 3617 / 2016
Rohit Khatri S/o Girdharilal Khatri, Aged about 27 years,
Resident of Khatriyon Ka Nichala Bas, Near Khear Road, Near
Daga Hospital, Balotra, District Barmer.
----Petitioner
Versus
1. State of Rajasthan through Public Prosecutor,
2. Shri Mathew Menual S/o Menul Manik, currently working
as Senior Area Manager, Muthoot Finance Corporation
Ltd., Resident of Adivarram P.SA Kottayam, Adivaram,
Erattupettah, Kottayam, Kerala.
----Respondents
__________________________________________
For Petitioner : Mr. Arpit Bhoot.
For Respondent-State : Mr. V.S. Rajpurohit.
For Respondent No.2 : Mr. Dhanpat Choudhary.
__________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 09/12/2016 Petitioner, a probationer Branch Manager Grade-C/II of Muthoot Finance Corporation Ltd., (for short, 'Company'), has laid this criminal misc. petition imploring annulment of FIR No.387/2016 (Annex.1) registered at Police Station Barmer, District Barmer.
In the impugned FIR, the respondent-complainant has attributed offences under Sections 420, 408, and 120-B IPC against the petitioner. As per FIR, the petitioner, while working as Branch Manager of the Company at Barmer, has acted (2 of 12 ) [CRLMP-3617/2016] dehors the rules and prescribed procedure of the Company in disbursement of loan to the consumers. The FIR further unfurls that due to omissions and commissions of the petitioner, Company has suffered huge loss to the tune of Rs.73,86,862/-. It is specifically alleged in the FIR that the petitioner has not cared to examine the actual weight of the gold ornaments, purity and their requisite descriptions, which were sought to be pledged by the respective borrowers as security to avail credit facility from the Company. As per version of the complainant, this fact was revealed when authorised auditors of the Company made inquiry about the pledged gold ornaments. Attributing serious lapses on the part of the petitioners in discharge of his duties, thereby causing wrongful loss to the Company at the cost of his wrongful gains, complainant has made a request to the concerned police station for taking appropriate action in the matter.
In order to challenge the FIR, petitioner has essentially taken shelter of two grounds, viz., locus standi of the complainant to initiate criminal proceedings/prosecution and factum of non-disclosure of cognizable offence against him.
Learned counsel for the petitioner, Mr. Arpit Bhoot, has strenuously urged that Company is incorporated under the Companies Act, and therefore, only an authorized person, on its behalf, can initiate criminal proceedings against the petitioner. Learned counsel would contend that complainant has not been authorised by the Company to prosecute the petitioner, and (3 of 12 ) [CRLMP-3617/2016] therefore, allowing investigation in the matter would obviously result in abuse of the process of the Court. Learned counsel further submits that a bare reading of FIR makes it abundantly clear that the same does not disclose commission of cognizable offence by the petitioner. In support of his arguments, learned counsel has placed reliance on a decision in case of Surendra Kumar Bhatia V/s. Kanhaiya Lal & Ors. [AIR 2009 SC 1961].
Per contra, learned Public Prosecutor submits that a bare reading of FIR makes it crystal clear that the same discloses commission of cognizable offence by the petitioner. Learned Public Prosecutor further submits that if the FIR discloses cognizable offence, police is bound to register the same and make investigation in the matter as mandated under Sections 154 & 156 Cr.P.C. Lastly, learned Public Prosecutor has urged that objection of locus standi is not tenable as per scheme of Cr.P.C.
Learned counsel for the complainant, Mr. Dhanpat Choudhary, while adopting the arguments of learned Public Prosecutor, submits that factum of commission of cognizable offence by the petitioner is clearly apparent from the recitals of the FIR, and therefore, no interference in the matter is warranted. Learned counsel has also urged that pre-arrest bail application of the petitioner has already been rejected by this Court by a detailed order, and therefore, it is not desirable to interfere in the matter.
(4 of 12 ) [CRLMP-3617/2016] I have heard learned counsel for the petitioner, learned Public Prosecutor as well as learned counsel for the complainant and perused the impugned FIR.
At the outset, it may be observed that for assailing the impugned FIR, petitioner has canvassed two arguments. The first argument vociferously raised by learned counsel for the petitioner questions the locus standi of the complainant to lodge FIR on behalf of Company. As per version of the petitioner, there is no authorization by the Company permitting the complainant to launch prosecution against him. In criminal jurisprudence anyone can set or put the criminal law into motion except where the statute enacting or creating offence indicates to the contrary. It is a well-recognized principal of criminal jurisprudence that concept of locus standi is foreign to it.
The Constitution Bench of Supreme Court in A.R. Antulary V/s. Ramdas Sriniwas Nayak & Anr. V/s. [(1984) 2 SCC 500], while examining the concept of locus standi under the criminal jurisprudence made it clear that locus is immaterial and irrelevant unless statute indicates to the contrary. The Court held:-
"It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to court. Even for the most serious offence of murder, it was not (5 of 12 ) [CRLMP-3617/2016] disputed that a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position such as (i) Section 187-A of Sea Customs Act, 1878 (ii) Section 97 of Gold Control Act, 1968 (iii) Section 6 of Import and Export Control Act, 1947 (iv) Section 271 and Section 279 of the Income Tax Act, 1961 (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity Supply Act. This list is only illustrative and not exhaustive. While Section 190 of the Code of Criminal Procedure permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfil to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the CrPC. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force [See Section 2(n) CrPC] is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings (6 of 12 ) [CRLMP-3617/2016] cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception."
The Court further dilated on the concept of doing things in the way as required by the statute and not otherwise. The Court held :-
"Once the contention on behalf of the appellant that investigation under Section 5-A is a condition precedent to the initiation of proceedings before a Special Judge and therefore cognizance of an offence cannot be taken except upon a police report, does not commend to us and has no foundation in law, it is unnecessary to refer to the long line of decisions commencing from Taylor v. Taylor; Nazir Ahmad v. King-Emperor and ending with Chettiam Veettil Ammad v. Taluk Land Board, laying down hitherto uncontroverted legal principle that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
In a later judgment, Supreme Court in case of Manohar Lal V/s. Vinesh Anand & Ors. [(2001) (5) SCC 407] has reiterated the same principle. The Court held:-
"Before adverting to the matter in issue and the rival contentions advanced, one redeeming feature ought to be noticed here pertaining to criminal jurisprudence. To pursue an offender in the event of commission of an offence is to subserve a social need -- society cannot afford to have a criminal escape his liability, since that would bring about a state of social pollution, which is neither desired nor warranted and this is irrespective of the concept of locus -- the doctrine of locus standi is totally foreign to criminal jurisprudence. This observation of ours, however, obtains support from the decision of this Court in A.R. Antulay v. Ramdas Sriniwas Nayak."
The verdict of Surendra Kumar Bhatia (supra), on which learned counsel for the petitioner has placed reliance, is clearly distinguishable inasmuch as in that decision the Supreme Court (7 of 12 ) [CRLMP-3617/2016] has not considered question of locus standi under the criminal jurisprudence. The Court has simple observed that complaint filed by the members of Society was in regard to 20 bighas of land out of Khasra No.9 and as such when there was no claim of the society for the 13 bighas of land owned by respondent No.1 Kanhaiya Lal, the society cannot have any plausible grievance so as to continue prosecution in the matter against him. The Court held:-
"The complaint by the members of the society was in regard to the 20 bighas of land out of Khasra No.9 in regard to which late Chauthmal is alleged to have agreed to sell to the society under agreements dated 11.8.1980 and 24.11.1988. The members of the society gave a complaint to the Board claiming that the compensation payable (or 15% developed land in lieu of compensation) in respect of the said 20 bighas of land, had to be given to the society and not persons claiming to be legal heirs of Chauthmal. It was also their contention that on account of collusion among the successor of Chauthmal and his attorney holder, the Special Officer of the Board, and the office bearers of the society, the 15% developed land was allotted to persons who were not entitled to allotment, thereby defrauding the society and the Board. The respondents 1 and 2 approached the High Court pointing out that neither the society nor the members of the society, at any point of time had made any claim in regard to the 13 bighas in Khasra No.9, which belonged to first respondent, that the entire complaint related to 20 bighas agreed to be sold by Chauthmal to the society, and that as there was no complaint of irregularity or commission of any offence in regard to the 13 bighas of land belonging to the first respondent, there was no question of involvement of first respondent or his attorney holder (second respondent) in any offence of cheating or forgery. It is not in dispute that even the suit filed by the society, that was said to be pending at the relevant time was against Chauthmal in regard to the 20 bighas in Khasra No.9 and that no suit or proceeding was pending in regard to the remaining 13 bighas claimed by the first respondent. Only in January, 2003, second respondent and some (8 of 12 ) [CRLMP-3617/2016] others were impleaded in the said suit relating to 20 bighas, in pursuance of an application filed on 14.11.2002, long after respondents 1 and 2 had executed the agreement and consent award had been made. The High Court, therefore, rightly held that the allegations in the FIR, even if accepted as true, did not relate to the respondents 1 and 2 but to others who had claimed to be the owners/attorney holders in regard to remaining 20 bighas of land.
Having regard to the well settled principles laid down in State of Haryana v. Bhajan Lal - 1992 Suppl. (1) SCC 335; Indian Oil Corporation v. NEPC India Ltd. - 2006 (6) SCC 736; Inder Mohan Goswami v. State of Uttaranchal - 2007 (12) SCC 1, we are of the view that the High Court was justified in holding that the allegations even if taken at their face value did not prima facie constitute an offence under sections 420, 467, 468, and 471 IPC, by respondents 1 and 2."
Thus having regards to the facts of the instant case ratio decidendi of this verdict is of no avail to the petitioner.
Therefore, the argument of learned counsel for petitioner questioning locus standi of the complainant though quite alluring but bereft of any substance, merits outright rejection. It may also be observed here that offences, which are slapped against the petitioner are under the Indian Penal Code and therefore, there is obviously no legal embargo to proceed against the petitioner as per procedural law (Cr.P.C).
The second contention of the petitioner is that FIR is not disclosing commission of cognizable offence. In this behalf, suffice it to observe that a bare reading of FIR and upon meaningful construction of the recitals, unhesitatingly, in my view, requisite offences are clearly spelt out. In all fairness, I am constrained to observe that allegations in the FIR, prima (9 of 12 ) [CRLMP-3617/2016] facie, discloses commission of cognizable offence by the petitioner. This being the position, the Court is not obliged to examine reliability or genuineness of the allegations made in the FIR in exercise of inherent jurisdiction. At this stage, prejudging the prosecution case by examining its weakness and contradictions is not permissible. Moreover, it is trite that FIR is to be quashed very sparingly and only in rarest of rare cases where it is noticed by the Court that no offence is spelt out therein or the allegations made are absurd or inherently improbable. I am afraid, this is not the position in the impugned FIR so as to warrant interference in exercise of inherent jurisdiction.
There is yet another aspect of the matter that Section 154 Cr.P.C., enjoins a mandatory duty on police to register FIR when the information furnished discloses cognizable offence. The Supreme Court in case of State of Haryana & Ors. V/s. Bhajan Lal & Ors. [1992 Suppl. (1) SCC 335] examined the true purport of Sections 154 and 156 Cr.P.C and after discussing issue threadbare clearly and unequivocally spelt out mandatory nature of provision. The Court held:-
"At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he (10 of 12 ) [CRLMP-3617/2016] has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section
157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code.
Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information"
without qualifying the same as in Section 41(1)(a) or
(g) of the Code wherein the expressions, "reasonable complaint" and "credible information"
are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that 'every complaint' (11 of 12 ) [CRLMP-3617/2016] preferred to an officer in charge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence."
The same view is also reiterated by Supreme Court in case of Madhu Bala V/s. Suresh Kumar [1997 (8) SCC 477].
Supreme Court in a subsequent judgment in case of Ramesh Kumari V/s. State (NCT of Delhi) & Ors. [(2006) 2 SCC 677] reiterated same principle by relying on Bhajanlal's case (supra) and held:-
"The views expressed by this Court in paras 31, 32 and 33 as quoted above leave no manner of doubt that the provision of Section 154 of the Code is mandatory and the officer concerned is duty- bound to register the case on the basis of such an information disclosing cognizable offence."
Therefore, in totality, I feel disinclined to interfere in the matter at the stage of investigation. It is needless to observe here that investigation is stage of crime detection and role of judiciary at this stage is not justified unless there is miscarriage of justice.
Thus, on overall objective analysis of the matter, I am convinced that investigation in the matter would not result in miscarriage of justice, nor it is a case wherein abuse of the process of the Court is remotely foreseeable.
(12 of 12 ) [CRLMP-3617/2016] Resultantly, petition fails and same is, hereby, dismissed summarily.
(P.K. LOHRA)J. a.asopa/-