Association of Leasing Financial Services Cos v. State of Rajasthan
2005-06-02
SHIV KUMAR SHARMA
body2005
DigiLaw.ai
Judgment Shiv Kumar Sharma, J.-The prayer of the petitioner in the instant writ petition is as under:- (a) to direct the respondents to drop the pending investigation in the various criminal complaints registered as FIRs by referring as mistake of law and to discharge the accused persons. (b) to restore possession of seized vehicles to the concerned financier. (c) to direct the Director General of Police to issue similar circular as has been issued by the Police Authorities in Kerala State. Andhra Pradesh and State of West Bengal. (d) to declare that the dispute raised in the complaints amounts to a civil dispute and no case of theft or misrepresentation or robbery or dacoity or of any nature is made out against the petitioners as has been alleged against the financier or their representatives or agents or employees. 2. The petitioner, an Association of Companies and firms dealing in the business of lease financing and hire purchase, in the instant writ petition averred that the action of police which is being taken in the matter of repossession of vehicles in the lawful manner by the petitioners on account of default in payments of hire purchase instalments by the hirers of vehicles was illegal and without jurisdiction. The petitioners claimed to have a right to retake possession of the vehicles in accordance with the terms of the hire purchase agreement. Since, the police has been harassing the petitioners on the basis of baseless FIRs lodged by the defaulters, the petitioners have approached this Court to invoke powers under Article 226 of the Constitution. 3. Long and short of the submissions of learned Counsel for the petitioners is that in the case of hire purchase if the hirer himself has committed default by not paying the instalments the financier cannot be charged for the offence as defined under Section 378, IPC. The element of dishonest intention is totally absent in the seizure of vehicle as by mutual agreement right has been given to financier to seize the vehicle and it does not amount to take possession of the vehicle dishonestly. Learned Counsel placed reliance on Charanjit Singh Chadha vs. Sudhir Mehra, 2001 (7) SCC 417 and State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335. 4.
Learned Counsel placed reliance on Charanjit Singh Chadha vs. Sudhir Mehra, 2001 (7) SCC 417 and State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335. 4. In State of Haryana vs. Bhajan Lal, (Supra), following categories of cases were stated, wherein the extraordinary power under Article 226 of the Constitution can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice:- "(1) Where the allegations made in the first information report of 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) Wherethe 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. .(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) Wherethe 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.
.(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) Wherea 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." 4.None of the illustrations is helpful to the petitioners as neither any FIR has been shown to have lodged against the petitioners nor the facts regarding pendency of criminal proceeding have been stated with details. Imaginary threat cannot provide the cause of action as a petition under Article 226 can lie only if the right of the petitioner is invaded. The power under Article 226 has to be exercised with restraint and is not intended to be used as an inquisitorial power to interfere with the rights of the investigating officers merely on the basis of apprehension of an individual. 6. For these reasons, I find no merit in the writ petition and it accordingly stands dismissed. No costs.