Rajasthan High Court - Jodhpur
Mohammad Naeem vs State Of Rajasthan on 3 May, 2019
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 1963/2019
Mohammad Naeem S/o Sh. Maqbul Hussain, Aged About 40
Years, B/c Kureshyi , R/o Scheme No 9, Neemach , Thana Cant ,
Distt. Neemach (Mp)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Irfan Hussain S/o Shri Iktiyar Hussain Bhishti, Aged About
29 Years, Resident Of Ishakabad, Nimbaheda At Present
Manager, Friends Roadlines Transport Co., Nimbaheda.
----Respondents
For Petitioner(s) : Mr. Suresh Kumbhat
For Respondent(s) : Mr. Mukhtiyar Khan, P.P.
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 03/05/2019 Instant misc. petition has been filed by the petitioner for quashing of FIR No. 333/2018 registered at Police Station Sadar, Nimbahera, District Chittorgarh for offence under Section 420, 407 IPC.
Learned counsel for the petitioner submits that petitioner is only an owner of the vehicle and the coal was loaded at the factory premises and was sent to Wonder cement at Nimbahera in sealed condition and petitioner has no knowledge if the coal was sub-standard. Therefore, no case for offence under Section 420 and 407 IPC is made out against the petitioner. He relied upon the judgment of Bombay High Court in the case of Manoj Chandulal Shah Vs. State of Maharashtra & Ors reported in 2001 SCC Online Bom 175.
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(2 of 8) [CRLMP-1963/2019] Per contra, learned Public Prosecutor submits that petitioner is the owner of the Trailler and mis-appropriated the original coal and replaced it with duplicate coal. Upon interrogation from the petitioner, the petitioner gave the mobile number of his driver Satyanarayan and when the call details of the mobile number of the petitioner and his driver were obtained of the relevant time, it was found that the mobile of the driver Satyanarayan was switched off which shows that the petitioner is in cannivance with his driver mis-appropriated the original coal, so the offence under Section 420, 407 IPC is clearly made out against the petitioner.
I have considered the rival arguments and carefully gone through the record.
The petitioner is the owner of the trailler and on the basis of the investigation, police has found that the petitioner alongwith his driver Satyanarayan misappropriated the original coal and replaced with duplicate coal. Statements of complainant Irfan Hussain, S.C. Yadav, Jagdish also reveal that the petitioner was well aware of the fact of duplicate coal being supplied to the company. Upon interrogation from the petitioner, the petitioner furnished a mobile number of the driver of the petitioner which was not activated since the day, the petitioner employed him. As per call details of the petitioner's mobile number, the petitioner never called his driver on the said mobile number and his driver also never contacted him on his mobile number. Thus, from the case diary, it is clear that the petitioner in cannivance with his driver mis-appropriated the original coal therefore, the offence under Section 420, 407 IPC is prima facie made out against the petitioner.
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(3 of 8) [CRLMP-1963/2019] Hon'ble Supreme Court in the case of State of Haryana & Ors. Vs. Choudhary Bhajanlal & Ors. : 1992 Suppl. (1) SCC 335], laid down guidelines for exercising inherent powers under Section 482 Cr.P.C. to quash FIR and criminal proceedings. The Court held:
"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 formulae 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.(Downloaded on 28/06/2019 at 01:37:34 AM)
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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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the (Downloaded on 28/06/2019 at 01:37:34 AM) (5 of 8) [CRLMP-1963/2019] allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
Yet again, Supreme Court, in case of Janta Dal Vs. H.S. Choudhary : (1992) 4 SCC 305], while relying on Choudhary Bhajanlal's case (supra), held:
"This inherent power conferred by Section 482 of the Code 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 premature decision in a case wherein the entire facts are extremely 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 great 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 the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This Court in State of Haryana v. Ch. Bhajan Lal and Ors., to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Sections 397, 401 and 482 of the Code."
In another decision in the case of Pratibha Vs. Rameshwari Devi & Ors, JT 2007 (11) 122, the Hon'ble Apex Court held that (Downloaded on 28/06/2019 at 01:37:34 AM) (6 of 8) [CRLMP-1963/2019] while exercising the extraordinary jurisdiction under Section 482 Cr.P.C., the High Court cannot go beyond the allegations made in the F.I.R or rely upon extraneous consideration. For the purpose of finding out the commission of a cognizable offence, the High Court is only required to look into the allegations made in the complaint or the F.I.R.
In a subsequent decision, Vinod Raghuvanshi Vs. Ajay Arora & Ors. : (2013) 10 SCC 581], in a case under the Prevention of Corruption Act, Supreme Court affirmed the order passed by the High Court whereby it declined to exercise inherent powers for quashment of criminal proceedings. The Court observed:
"It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a still born child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein. More so, the charge-sheet filed or charges framed at the initial stage can be altered/amended or a charge can be added at the subsequent stage, after the evidence is adduced in view of the provisions of Section 216 CrPC. So, the order passed even by the (Downloaded on 28/06/2019 at 01:37:34 AM) (7 of 8) [CRLMP-1963/2019] High Court or this Court is subject to the order which would be passed by the trial Court at a later stage."
In another case of N. Soundaram Vs. P.K. Pounraj & Anr. :
(2014) 10 SCC 616], Supreme Court, while reiterating the principles laid down in Bhajan Lal (supra) on scope of exercise of powers under Section 482 Cr.P.C., held:
"It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any Court and to secure the ends of justice [See State of Haryana v. Bhajanlal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482, CrPC [See MCD v. Ram Kishan Rohtagi]. An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora]."
As far as the judgment relied upon by the counsel for the petitioner in the case of Manoj Chandulal Shah (supra) is concerned, in the said case, there was an act of an employee who tampered with the envelope and removed cash from the same, whereas, in the present case, according to the case diary, the petitioner was found to be involved in mis-appropriation of the coal in cannivance with the driver which amounts to cheating and (Downloaded on 28/06/2019 at 01:37:34 AM) (8 of 8) [CRLMP-1963/2019] breach of trust. It is also relevant to mention that the bail application filed by the petitioner under Section 438 Cr.P.C has also been dismissed by co-ordinate Bench of this Court.
In the facts and circumstances of the case so also in the light of the judicial pronouncements of Hon'ble Apex Court, no case for quashing of FIR No. 333/2018 registered at Police Station Sadar, Nimbahera, District Chittorgarh is made out. Hence, this misc. petition is hereby dismissed. Stay petition is also dismissed.
(MANOJ KUMAR GARG),J 103-/-
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