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Madhya Pradesh High Court · body

2009 DIGILAW 1213 (MP)

Ummed Singh v. State of M. P.

2009-10-23

PIYUSH MATHUR

body2009
Judgment ( 1. ) This petition is filed by the Accused/Petitioners under Section 482 of Code of Criminal Procedure seeking quashment of the charges, framed against them in relation to the Criminal Case No. 1086/2005 by the Judicial Magistrate First Class, Morena under Sections 420, 467, 468 and 471 of IPC as also for quashment of Order Dated 14-7-2006 passed by Vth Additional Sessions Judge (Fast Track Court), Morena in Criminal Revision No. 241/2005, whereby it has dismissed the Criminal Revision by finding the charges to be properly framed against the Petitioners. ( 2. ) The facts giving rise to the present petition, demonstrates that a criminal case bearing Crime No. 279/2004 was registered against the Petitioners at Police Station Kotwali, Morena, under Sections 420, 467, 468 and 471 of IPC on account of alleged concealment of material information, while obtaining Arms Licence under the Arms Act. ( 3. ) The Petitioners had applied for the grant of Arms Licence to the District Magistrate, Morena, wherein they had disclosed all material information including the fact of pendency of as many as six criminal cases against them, as well as against their family members and mainly on this ground they had applied for grant of Arms Licence for protection of themselves as well as their family members and property. ( 4. ) The Application was processed and the matter was investigated upon by the District Magistrate with the assistance of the report of Superintendent of Police, Morena, wherein looking to the peculiar circumstances, it was recommended by the Superintendent of Police that in view of pendency of the criminal cases against the petitioners it would be justified, if the Arms Licence could be given to them for protection of their life, their family members and their property. ( 5. ( 5. ) The recommendation Letter of Superintendent of Police dated 4-6-2003 was considered by the District Magistrate and the Licences were issued in favour of the Petitioners, but subsequently, it wis found that the information about one more criminal case being Criminal Case No. 225/85 registered under Sections 307, 147, 148 and 149, IPC was not given by the petitioners along with the application form, therefore, on that basis a communication was sent by Superintendent of Police, Morena for registration of criminal case against the petitioners and on this basis an FIR was registered and ultimately after filing of charge-sheet, the judicial Magistrate Morena has framed charges against the petitioners. The petitioners had challenged the Order framing of Charge before the Court of Session, but the Criminal Revision has been rejected, against which the present petition has been preferred under Section 482 of the Code of Criminal Procedure, ( 6. ) I have heard Learned Counsel for the parties and perused the record of the case. A perusal of the entire record and the impugned order demonstrates that the Superintendent of Police and the District Magistrate being custodians of "Law and Order" and Licencing Authority have thoroughly examined the necessity of issuance of Arms Licence and, thereafter alone the decision to grant licence was taken, for issuance of Arms Licence to the present petitioners and as such it could not be said that concealment or not disclosure of information about remaining one matter was motivated with an intention to cheat or defraud the Licencing Authority. ( 7. ) For appreciating the nature of allegation, it would be appropriate to notice the basic elements of Sections 420, 467, 468 and 471 of IPC, therefore, the text of these Sections are quoted herein below :- Section 415 : Cheating :- Whoever, by deceiving any person, fraudulently or property to any person or to consent that any person shall retain any property, or intentionally induces the persons so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property, is to "cheat". Section 420 : Cheating and Dishonesty inducing delivery of property :- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, after or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 467: Forgery of Valuable Security, Will, etc. :- Whoever forges a document which purports to be a Valuable security or a will, or an authority to adopt a son, or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money- movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 468 : Forgery for the purpose of Cheating :- Whoever commits forgery, intending that the document (or electronic record) forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 471 : Using as genuine a forged Document or Electronic Record :- Whoever fraudulently or dishonestly uses as genuine any document (or electronic record) which he knows or has reason to believe to be a forged document, (or electronic record) shall be punished in the same manner as if he had forged such document (or electronic record). ( 8. Section 471 : Using as genuine a forged Document or Electronic Record :- Whoever fraudulently or dishonestly uses as genuine any document (or electronic record) which he knows or has reason to believe to be a forged document, (or electronic record) shall be punished in the same manner as if he had forged such document (or electronic record). ( 8. ) The provisions contained in Sections 420, 467, 468 and 471 of IPC clearly demonstrate that there should be a clear element of cheating and fraud in the action or inaction of the applicant and there should be an apparent intention to deceive the person or authority for the purpose of getting an unlawful benefit or advantage, but here the applicants had categorically disclosed the information about the pendency of series of Criminal Cases against them and by disclosing this facts, they had specifically sought Arms Licence for the protection of their person and property. The petitioner No. (1) Ummed Singh had made categorical declaration of the details of the pending Criminal Cases, against him and other co-applicants (being co-petitioners in the present petition) and his family members and since all the applications were filed together and processed together and common report and recommendation were made by the Superintendent of Police, it could not be said that any lapse or lacuna on the part of other co-petitioners could be treated to have been motivated with some criminal intention to commit cheating or fraud. ( 9. ) It is true that the disclosure of material information is necessary for processing an Application seeking grant of Arms Licence to an applicant and the record shows that the petitioners have disclosed almost the entire details of pending criminal cases and have submitted application, form for issuance of Arms Licence for protection of their persons and property as well as their family members and. therefore, it could not be believed that there was any deliberate concealment of information about the solitary criminal case. Since, the petitioners have honestly made disclosure of pending criminal cases against them in the application form and adequate information about its correctness was available with the District Magistrate in the form of recommendation of the Superintendent of Police, therefore, it could not be said that either the petitioners have made concealment of the material information or the Investigating Authority was Unaware of the fact of pending cases against the petitioners. ( 10. ) Therefore, in the peculiar facts and circumstances of the case, it appears that there was no criminal intention of the petitioners in not disclosing about the remaining criminal case, pending against them while submitting the application form and as such, no case of concealment of material information is even prima facie made out. Since the record fails to demonstrate that there exist a criminal intention even in the mind of the alleged wrong doer, therefore, it could not be said that they have committed either of the offences. The elements of cheating require that one has to deceive or induce any person, fraudulently or dishonestly to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and that act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property and since, all these mandatory elements are missing, it cannot be said that even a prima facie case exist against the petitioners for being tried in relation to the alleged commission of offence in terms of Sections 420, 467, 468 and 471 of IPC. ( 11. ) The Supreme Court of India has cautioned the High Court that charges should be quashed in very rare circumstances and for ascertaining such circumstances, the necessary guidance flows from a celebrated judgment of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 Cri LJ 527), wherein the Supreme Court has broadly categorized some exigencies wherein the Court can interfere. The relevant observations of the Apex Court are quoted herein below :.- (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. (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. (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 provisions 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. ( 12. ) While reiterating the direction of Bhajan Lal (1992 Cri LJ 527) (supra) the Supreme Court has further observed in several subsequently decided cases viz. State of M. P. v. Awadh Kishore Gupta reported in 2004 (1) SCC 691 : (2004 Cri LJ 598) and in the latest case of Mahindra and Mahindra Financial Services Limited v. Rajiv Dubey, reported in 2009 (1) SCC 706 : (AIR 2008 SC (Supp) 821) that when the proceedings/prosecution clearly amount to an abuse of process of law then the Court should certainly exercise its inherent powers for preventing abuse of process of law. ( 13. ( 13. ) The Superintendent of Police upon receiving information about non-disclosure of complete information about pending cases, could have sought cancellation of the Arms Licence and while exercising Administrative and/or quasi-judicial powers, the Licensing Authority i.e. the District Magistrate could have passed appropriate Orders, instead of resorting to launching the prosecution, in the peculiar facts and circumstances of the case, strictly within the scope and sphere of the provisions of the Arms Act. The Supreme Court, while dealing with an issue of cheating in Commercial Transaction and viewing it from the angle of Criminal Prosecution has observed in the case of Anil Ritolla alias A. K. Ritolia v. State of Bihar, reported in (2007) 10 SCC 110 : (2008 Cri LJ 353) that when the statute provide for a particular remedy, then appropriate action should be taken thereunder and as such the action of Superintendent of Police, in initiating prosecution and the prima facie view of the Court below in framing the charges, seems to be patently illegal. ( 14. ) The Supreme Court while evaluating the conduct of the accused in some what similar lines has observed in the case of V.V.S. Rama Sharma v. State of U.P., (2009) 7 SCC 234 : (2009 AIR SCW 3294) that the conduct of the accused was not amounting to the commission of an offence and since in the present case also, the Petitioners had made categorical disclosure of the fact of pendency of as many as six Criminal Cases against them, no fault could be found out or criminal intention could be gathered in committing such a lapse of not disclosing yet another Criminal Case. ( 15. ) Therefore, in the peculiar facts and circumstances of the case it would be appropriate to quash the charges imposed by the Court below against the accused petitioners under Sections 420, 467, 468 and 471 of IPC with a view to do substantial justice and also to prevent abuse of process of Court, because even when the entire material available on record is evaluated and examined on prima facie basis it fails to constitute the elements of cheating and/or fraud. Therefore, the charges framed by the Court below against all the rive accused persons viz. Therefore, the charges framed by the Court below against all the rive accused persons viz. Ummed Singh Rajendra Singh, Raghuvir Singh, Vakil Singh and Pratap Singh under Sections 420, 467, 468 and 471 of IPC are quashed and the Order passed by the Vth Additional Sessions Judge (Fast Track Court). Morena in Criminal Revision No. 241/2005 on Date 14-7-2006 is also quashed. ( 16. ) The petition succeeds and is hereby allowed. The Charges framed against the Petitioners/Accused are quashed. No order as to costs. Petition allowed.