Madhya Pradesh High Court
Shahrukh Khan vs The State Of Madhya Pradesh on 16 March, 2018
THE HIGH COURT OF MADHYA PRADESH
1
WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
Gwalior, Dated : 16.03.2018
Shri MPS Raghuvanshi, learned counsel for
the appellants.
Shri Raghvendra Dixit, learned Government
Advocate, for the respondent/State.
With the consent of learned counsel for the parties, the matter is finally heard.
This appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 02.01.2018 passed in Writ Petition No.98/2017 whereby learned Single Judge has negatived the challenge to the registration of offences punishable under Sections 406, 418 and 511 of Indian Penal Code vide Crime No.391/15 dated 30.07.2015 at Police Station Cantt. Guna, District Guna (M.P.).
Exception whereof was taken by the appellants on the ground that they are falsely implicated. It was contended that the genesis lay in selection of the NGO Krantikala Sangam, Morena, of which the appellants are the office bearers, to manage the Children With Special Need Hostel (CWSN), Guna, memorandum of THE HIGH COURT OF MADHYA PRADESH 2 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others understanding whereof was signed on 01.06.2015.
It is contended that before a surprise inspection on 26.07.2015 by the Assistant Project Officer (Store Dept.), and Stenographer, District Panchayat Officer Guna whereon it was found that out of 38 Children only 19 children were present, they were not given food as per menu, the vegetables and grains were not stored, and there was no alternative arrangement if the electricity is not available (load shedding). The petitioners had apprised of the infrastructural shortcomings in the hostel vide letter dated 29.06.2015. That after inspection report the petitioners were subjected to Show Cause Notice by the Collector on 29.07.2015 seeking explanation within seven days. And FIR was lodged on 30.07.2015. The petitioners submitted the reply on 04.08.2015 explaining that the children are to be admitted by the District Education officer and on the date of inspection there was heavy rain and as the building roofs had leaks the food stuff was stocked elsewhere (Place not disclosed). The petitioners also sought for release of Rs. One Lac.
THE HIGH COURT OF MADHYA PRADESH 3 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others Challenge to the FIR was on the ground that no offence under Section 406 of IPC is made out.
Learned Single Judge relying on the decision on "State of Madhya Pradesh Vs. Rameshwar and others [(2009) 11 SCC 424]"
declined to cause an indulgence that there is no bar to proceed under criminal law and that the authorities are within their right in invoking the criminal prosecution.
The verdict is questioned mainly on the basis of the decision in "Indian Oil Corpn. Vs. NEPC India Ltd. and others [(2006) 6 SCC 736]" and "Rajib Ranjan and others Vs. R. Vijaykumar [(2015) 1 SCC 513]".
In Indian Oil Corpn. (supra), Hon'ble Supreme Court was concerned with the following issues:
"(i) Whether existence or availment of civil remedy in respect of disputes arising from breach of contract, bars remedy under criminal law?
(ii) Whether the allegations in the complaint, if accepted on face value, constitute any offence under Sections 378, 403, 405, 415 or 425 IPC?
Dwelling upon the first issue their Lordships THE HIGH COURT OF MADHYA PRADESH 4 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others were pleased to hold:-
"16. The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. They have taken pains to point out that the aircrafts are continued to be stationed at Chennai and Coimbatore Airports; that the two engines of VT-NEK though removed from the aircraft, are still lying at Madras Airport; that the two DART 552 TR engines of VT-NEJ were dismantled for the purpose of overhauling/repairing; that they were fitted into another aircraft (VT- NEH) which had been taken on lease from M/s Aircraft Financing and Trading BV and that the said aircraft (VT-NEH) has been detained by the lessor for its dues; that the two engines which were meant to be fitted to VT-NEJ (in places of the removed engines), when sent for overhauling to M/s Hunting Aeromotive, U.K., were detained by them on account of a dispute relating to their bills; and that in these peculiar circumstances beyond their control, no dishonest intent could be attributed to them. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the THE HIGH COURT OF MADHYA PRADESH 5 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others ingredients of a criminal offence or not.
17. The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings."
(Emphasis Supplied) As regard to verdict on Issue No.(ii) it has no relevance in the case at hand wherein the offences registered are under Sections 406, 418 and 511 of IPC.
The decision in Indian Oil Corpn. (supra), thus, affirms the view of learned Single Judge.
In Rajib Ranjan and others (supra), the Hon'ble Supreme Court was concerned with the offence under Sections 120B, 468, 420, 500 IPC. Their Lordships were pleased to observe:-
"24. Having regard to the circumstances narrated and explained above, we are also of the view that an attempt is made by the respondent to convert a case with civil nature into a criminal prosecution. In a case like this, the High Court would have been justified in quashing the proceedings in exercise of its inherent powers under Section 482 of the Code. It would be of benefit to refer to the judgment in Indian Oil Corpn. v. NEPC India Ltd. and others, THE HIGH COURT OF MADHYA PRADESH 6 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others (2006) 6 SCC 736, wherein the Court adversely commented upon this very tendency of filing criminal complaints even in cases relating to commercial transaction for which civil remedy is available or has been availed. The Court held that the following observations of the Court in this behalf are taken note of:
"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, this Court observed: (SCC p. 643, para 8)
8. ......"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to THE HIGH COURT OF MADHYA PRADESH 7 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
The appellants, in the given facts of present case, are not benefited from the decisions in Indian Oil Corpn. (supra) and Rajib Ranjan and others (supra). As the FIR prima facie THE HIGH COURT OF MADHYA PRADESH 8 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others indicated the mens rea and the criminal culpability.
Section 406 IPC mandates:
"406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Similarly Sections 418 and 511 IPC respectively envisage:
"418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.--Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with 1[imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such THE HIGH COURT OF MADHYA PRADESH 9 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with 2[imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
In FIR it is said:
lwpukdrkZ Jh ds-,y-xkS< ftyk ifj;kstuk leUo;d vf/kdkjh ftyk f'k{kk dsUnz xquk }kjk ,d ys[kh; vkosnu i= ykdj ,Q-vkbZ-vkj- ntZ djus fo"k;d is'k fd;k tks vkosnu i= etcwu ls izFke nz"V;k vi-/kkjk 406]418]511 Hkknfo dk ik, tkus ls izdj.k iathc) dj foospuk esa fy;k x;k udy vkosnu i= udy fuEu gSA dk;kZy; ftyk f'k{kk dsUnz xquk ¼e-iz-½ dz-@ft-f'k-ds- @vkbZbZMh@2015@684@xquk fnukad 29@7@2015 izfr Fkkuk izHkkjh iqfyl Fkkuk dSaV ftyk xquk e-iz- fo"k;% ,Q-vkbZ-vkj- ntZ djus fo"k;d mijksDr fo"k;karxZr ys[k gS fd loZ f'k{kk vfHk;ku varXkZr ukuk[ksM+h esa fu %'kDr cPpksa gsrq 50 lhVj Nk=kokl dk lapkyu Lo;alsoh laLFkku dzkfrdyk laxe eqjSuk }kjk fd;k tk jgk gSA Nk=kokl dk lapkyu ftyk f'k{kk dsanz ,oa mDr laLFkk ds e/; laikfnr ,e-vks-;w- fd 'krksaZ ds vuqlkj o"kZ 2015&16 ds fy;s fd;k tkuk Fkk blds fy;s laLFkk dks izFke fd'r ds :i esa nks yk[k ipkl gtkj :i;s iznku fd;s x;s Fks laLFkk }kjk 1@7@2015 ls Nk=kokl izkjaHk fd;k x;k gS mDr Nk=kokl dk fufj{k.k lgk;d ifj;kstuk vf/kdkjh ¼LVksj 'kk[kk½ ,oa LVsuksxkzQj ftyk iapk;r xquk ds ny }kjk fnukad 26@07@2015 dks la;qDr :i ls fd;k x;k ftlesa ntZ 38 cPpksa ds fo:) 19 cPps mi- ik;s x;s cPpks ds esU;w vuqlkj Hkkstu THE HIGH COURT OF MADHYA PRADESH 10 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others forj.k ugha ik;kA [kk?k lekxhz i;kZIr ek=k esa Hk.Mkj esa ugha ik;k x;k rS;kj Hkkstu Hkh mifLFkr cPpksa ds eku ls de gksuk ik;k x;k rFkk fo|qr dh vuqmiyC/krk dh fLFkfr esa dksbZ oSdfYid O;oLFkk ugha FkhA fn-
27@07@2015 dks Jh lkftn elwn lgk- ifj;kstuk leUo;d ¼ vkbZ-bZMh-½ ftyk f'k{kk dsUnz xquk }kjk Hkh Nk=kokl dk fufj{k.k fd;k x;k ftlesa iwooZr fLFkfr ikbZ xbZ ftlls Li"V gS fd lapkyu drkZ laLFkk }kjk 'kklu }kjk fu%'kDr cPpksa gsrq fu/kkZfjr jk'kh ,oa lqfo/kkvksa Nk=kokl esa ntZ cPpksa dks iznk; ugha djrs gq;s izko/kkfur jk'kh ,oa lqfo/kkvksa dk nq:i;ksx fd;k x;k ftlds dkj.k fu%'kDr cPps 'kklu }kjk fn;s x;s ykHk izkIr djus ls oafpr jgs mijksDr rF;ksa ds izdk'k esa lacaf/kr Lo;a lsoh laLFkk ds lapkyudrkZvksa ds fo:) ,Q-vkbZ-vkj- nTkZ dj vfxze vko';d dk;Zokgh djus dk d"V djsaA Trite it is that an F.I.R is only an information for setting the criminal machinery in motion. It is not a punishment and is purely an administrative act which does not warrant an appropriate opportunity of hearing before lodging a complaint.
In "Union of India Vs. W.N. Chadha [AIR 1993 SC 1082]" it has been observed:
"88. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full- THE HIGH COURT OF MADHYA PRADESH 11 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.
89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under S. 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but where the occasion for its attraction exists at all.
90. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
94. Under S. 235(2), in a trial before a Court of Sessions and under S. 248(2) THE HIGH COURT OF MADHYA PRADESH 12 WA.192.2018 Shahrukh Khan and others Vs. State of M.P. and others of the trial of warrant cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect."
In view whereof, we find no discrepancy in the impugned order as would warrant any indulgence.
Consequently, appeal fails and is dismissed. No costs.
( Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.03.22
10:27:14 -07'00'