Madhya Pradesh High Court
Seva Sahakari Samiti Dongra Thr vs The State Of Madhya Pradesh Thr on 18 September, 2015
WP-5489-2015
(SEVA SAHAKARI SAMITI DONGRA THR Vs THE STATE OF MADHYA PRADESH THR)
18-09-2015
Shri Harshad Bahirani, Advocate for the petitioner.
Shri Amit Bansal, Dy. Govt. Advocate, for the respondent/State.
Heard.
Learned counsel for the petitioner advanced singular contention. He submits that letter dated 7.8.2015 does not disclose violation of any of Control Order of 2015. In absence thereof, no FIR can be lodged. He relied on the interim order passed by this Court in WP No. 5488/15.
2. Prayer is opposed by Shri Amit Bansal, learned Dy. Government Advocate.
3. This Court has recently considered this aspect in C.R.265/10 (Savita Devi vs. State of MP), decided on 02.09.2015. In the said case, the petitioner challenged the order dated 19.2.2010, whereby the Court below has framed charges against the petitioner. In the present case, even FIR is not lodged nor it is under challenge. The internal correspondence of Sub Divisional Officer and Police Station Incharge is called in question.
4. This is trite law that even FIR cannot be treated as an encyclopedia. The Apex Court in (2003) 6 SCC 175 (Superintendent of Police, CBI and others vs. Tapan Kumar Singh), opined that a First Information Report is not an encyclopedia, which must disclose all facts and details relating to the offence reported.The same view is taken in (2009) 9 SCC 719 (Jarnail Singh and others vs. State of Punjab). The Apex Court held that mentioning of a section in the FIR is not by itself convincing, as it is for the Court to frame charges having regard to the material on recordâ.
5. This Court in Savita Devi (supra) opined as under:-
13. The heading of section 7 of the EC Act is that âany person contravenes any order made under section 3 â¦.. he shall be punishable.â (emphasis supplied). Plain reading of Sec. 7 shows that for attracting this Section of the EC Act, the primary requirement is that there must be violation of an âOrderâ.
In other words, for attracting section 7 of the EC Act, the essential requirement is an âOrderâ, the violation of which is alleged. Precisely for this reason, in Hema Bhadoriya (supra) and aforesaid other judgments of this Court, the FIR/charge has been set aside because it did not disclose about the âOrderâ. Thus, mentioning and establishing violation of an Order is sine qua non for attracting penal clause under section 7 of the EC Act. To this extent, I respectfully agree with the view taken by this Court in Hema Bhadoriya (supra) and other cases referred above.
14. The conundrum is, whether a charge sheet should be set aside at this stage because it does not mention about the âOrderâ. The Apex Court in Prakash Babu Raghuvanshi vs. State of MP [(2004) 7 SCC 490], considered an interesting point whether a charge can sustain judicial scrutiny when the 'order' is not mentioned therein. The Apex Court opined that for bringing an application under section 7 of the EC Act, essential requirement is an 'order', the violation of which is alleged. However, in the said case, the Apex Court found that the said 'order' was neither shown before the trial court nor before the High Court. The Apex Court did not set aside the charge for the said reason. The Apex Court remitted the matter to the High Court to hear the matter afresh. The parties were permitted to place materials in support of their respective stand. The State was given liberty to file materials to show as to which âorderâ was violated. It was further observed that if such material is placed, it must be examined in accordance with law. This judgment of Apex Court in Prakash Babu Raghuvanshi (supra) has not been considered by this Court while deciding the cases of Hema Bhadoriya (supra).
15. The matter may be examined from yet another angle. In (2011) 9 SCC 234 (Santosh Kumari vs. State of Jammu and Kashmir and others), the Apex Court opined that Criminal Procedure Code is a procedural law. It is devised to subserve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but other not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable cases. The Apex Court opined that for this reason provisions like Sections 215 and 464 are there in CrPC. It is thus clear that absence of a charge is a curable defect. The object of framing charge is also considered in Santosh Kumari (supra). It is held that object of the charge is to give the accused notice of the matter he is charged. Therefore, if necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formla of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for.
16. In view of the principle laid down by Supreme Court, it can be safely concluded that if particular of âOrderâ is not mentioned in the charge, the charge should not be mechanically set aside. The necessary directions may be issued to specify the 'order' in order to give a clear picture to the accused about the allegations mentioned against him. This is necessary to attract section 7 of the EC Act. It being a curable defect may be permitted to be corrected. In (2014) 8 SCC 340 (Chandra Prakash vs. State of Rajasthan), the Apex Court again opined that the purpose of framing of charges is that the accused should be informed with certainty and accuracy of the charge brought against him. There should not be vagueness. The accused must know the scope and particulars in detail.
17. In K. Prema S. Rao vs. Yadla Srinivasa Rao [(2003) 1 SCC 217], the Apex Court held that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Apex Court relied on (2004) 5 SCC 334 (Dalbir Singh vs. State of UP); (2009) 6 SCC 372 (State of UP vs. Paras Nath Singh) and (2009) 12 SCC 546 (Annareddy Sambasiva Reddy vs. State of AP).
18. If said judgments are considered in its proper perspective, the inevitable conclusion would be that if âorderâ is not shown in the charge, it is a curable defect. In (2014) 11 SCC 538 (CBI vs. Karimullah Osan Khan), the Apex Court considered Section 216 of CrPC. It opined that powers of court under section 216 are very wide. Even after completion of evidence, arguments being heard and judgment being reserved, the court can alter or add any charge. In this view of the matter, the court below can very well examine whether there exists âOrderâ and if it exists, it can modify the charge No.3 accordingly. In view of judgment of Prakash Babu Raghuvanshi (supra), the matter needs to be remitted back to the trial court to frame the charge properly. The trial court has power to specify the charge at any stage of the proceedings. Thus, the judgments of Hema Bhadoriya, Kunwar Singh Bhadoriya, Jodh Singh and Mahesh Chourasiya (supra) are distinguishable to the extent the FIR/charges were quashed in those cases because of non-mentioning of the âorderâ. The judgment of Hema Bhadoriya (supra) was passed without considering the judgment of Supreme Court in Prakash Babu Raghuvanshi (supra). In the said judgments, this Court has not considered the aspect of curability of charge. Hence, to that extent, the said judgments are distinguishable.
19. In the resulnt, in my view, if âorderâ is not mentioned in charge No.3, charge sheet cannot be set aside on this ground. I deem it proper to direct the court below to re-frame charge No.3 by mentioning âorderâ, which is allegedly violated by the petitioner. In the interest of justice, it is made clear that if prosecution is unable to show any order, which is allegedly violated by the petitioner, it will be open for the court below to exonerate the petitioner from the charge No.3 without putting him to any further trial.â
6. In the light of aforesaid, even if âorderâ is not mentioned, no interference can be made at this stage. In view of aforesaid legal position, interference is declined at this stage. Petition is dismissed.
(SUJOY PAUL) JUDGE