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2009 DIGILAW 2597 (ALL)

RAM CHANDA BALANI v. STATE OF U. P.

2009-07-18

SHRI KANT TRIPATHI

body2009
JUDGMENT Hon’ble Shri Kant Tripathi, J.—The applicants Ram Chanda Balani and his son Shyam Balani have filed this application under Section 482, Cr.P.C. for quashing the proceedings of the Criminal Case No. 399 of 2000, State v. Ram Chanda Balani and another, under Section 380, IPC pending in the Court of Ist Additional Chief Judicial Magistrate, Mathura along with the impugned order dated 6.11.2004 and charge-sheets dated 25.4.2000 and 5.7.2000. 2. Neither the opposite party No. 1 nor the opposite party No. 2 (the complainant) filed any counter affidavit. 3. I have heard the learned counsel for the applicants, the learned AGA for the State and also the learned counsel for the opposite party No. 2 and perused the record. 4. It is alleged that the marriage of the applicant No. 2 Shyam Balani, son of the applicant No. 1, was to take place on 5.5.1997. The applicants had gone to the house of the opposite party No. 2 Gurudeo Sharma on 1.4.1997 at about 10.00 AM to invite him for the marriage. At that time the opposite party No. 2 was not present in his house but his servant Mohan Singh Yadav (informant) was present, who entertained the applicants in the house of the opposite party No. 2 and went to the market to bring refreshment etc. for them. When the servant Mohan Singh Yadav returned, he found that the applicants were not in the house and had already gone and the attachi kept in an almirah was found in open condition and the cash amount of Rs.12,000/- kept by the opposite party No. 2 was missing from the attachi. It is alleged that the applicants have committed theft of the cash amount of Rs. 12,000/- by entering into the house of the opposite party No. 2. Accordingly the servant of the opposite party No. 2 lodged FIR at the concerned police station. The police registered the case for investigation and on completion of investigation submitted a final report by holding that no case was made out against the applicants. The final report was, then, referred to the Senior Prosecuting Officer, Mathura for opinion, who had kept the matter pending with him for about three years and then returned the case to the investigating officer for filing charge-sheet against the applicants. The final report was, then, referred to the Senior Prosecuting Officer, Mathura for opinion, who had kept the matter pending with him for about three years and then returned the case to the investigating officer for filing charge-sheet against the applicants. Accordingly the investigating officer submitted charge-sheet against the applicants in the Court concerned and the final report already submitted was recalled. 5. The learned Additional Chief Judicial Magistrate took cognizance of the offence and issued processes to the applicants. The applicants, after putting appearance before the Additional Chief Judicial Magistrate, contended that no offence was made out against them and prayed for their discharge. The learned Magistrate considered the entire material annexed with the charge-sheet and arrived at the conclusion that there was sufficient evidence on record to frame a charge under Section 380, IPC against the applicants. Accordingly the learned Magistrate passed the impugned order dated 6.11.2004 and rejected the applicants’ prayer for discharge and decided to frame a charge under Section 380, IPC against them. The applicants have challenged the order dated 6.11.2004 of the Additional Chief Judicial Magistrate, Mathura as well as charge-sheets dated 25.4.2000 and 5.7.2000 in the instant case. 6. The learned counsel for the applicants submitted that the applicants are respectable persons. The applicant No. 1 was the Vice President of the society ‘Jhulelal Sindhu Nagar Welfare Association’ whereas the opposite party No. 2 Gurudeo Sharma was the Chairman. They were on friendly term but due to a dispute concerning the society, the opposite party No. 2 developed an enmity with the applicants and got lodged the FIR against them with the help of his own servant. The learned counsel for the applicants further submitted that the informant Mohan Singh Yadav, who is the sole witness, has died and no useful purpose will be served to continue with the trial after the death of the sole witness Mohan Singh Yadav. It was further submitted that the story of theft as disclosed in the charge-sheet is not only absurd but is also inherently improbable. The proceedings of the case, in view of the principles of law laid down in the case of State of Haryana and others v. Bhajan Lal and others, 1992 SCC (Cri.) 426, are liable to be quashed. It was further submitted that the story of theft as disclosed in the charge-sheet is not only absurd but is also inherently improbable. The proceedings of the case, in view of the principles of law laid down in the case of State of Haryana and others v. Bhajan Lal and others, 1992 SCC (Cri.) 426, are liable to be quashed. In Bhajan Lal’s case (supra) the Supreme Court has dealt with the scope of exercise of powers under Section 482, Cr.P.C. and category of cases where High Court may exercise its power relating to the cognizable offence to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The seven categories of illustrations propounded by the Supreme Court are as follows : “(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 F.I.R. 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. (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.” 7. The case of Bhajan Lal (supra) has been followed with approval in the cases of Indian Oil Corporation v. NTPC India Ltd. and others, (2006) 6 SCC 736 ; Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and another, (2006) 7 SCC 188 and State of Orissa and another v. Saroj Kumar Sahoo, (2005) 13 SCC 540 and in few other cases. It may not be out of context to refer the following observations made by the Supreme Court in Ravi Shankar Srivastava’s case (supra): “It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered,then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings." 8. Section 482, Cr.P.C. has conferred inherent powers on the High Court which should be exercised sparingly, carefully and with caution only when the exercise is necessary, firstly, to give effect to an order under the Code, secondly, to prevent abuse of the process of the Court and thirdly, to otherwise secure the ends of justice. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. While exercising the powers under Section 482, Cr.P.C. the High Court does not function as a Court of appeal or revision and as such it is not permissible to make evaluation or appreciation of the evidence collected during the investigation. The evidence and materials collected during the investigation have to be taken on their face value and if they make out a case of commission of an offence, the proceedings of the case cannot be quashed on the ground that the evidence is not creditworthy. The evidence and materials collected during the investigation have to be taken on their face value and if they make out a case of commission of an offence, the proceedings of the case cannot be quashed on the ground that the evidence is not creditworthy. The reliability of evidence in a criminal case is a matter to be considered at the stage of trial and not under Section 482, Cr.P.C. or at the stage of taking cognizance of the offence or framing a charge. The police report and the materials collected during the investigation in support of the report are the only materials for the purposes of taking cognizance of an offence as well as for framing a charge. Even the defence version has no relevancy at this stage. The inherent power should not be exercised to stifle a legitimate prosecution but that power is very wide and the very plenitude of the power requires great caution in its exercise. In a case instituted on complaint the inherent power to quash the proceedings has to be exercised only in a case where the complaint does not disclose any offence or is mala fide, frivolous, vexatious or oppressive, but in a case instituted on a police report, the allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. In such cases only the materials collected during the investigation and the evidence led in the Court are relevant. 9. In the instant case, the learned Additional Chief Judicial Magistrate has, on perusal of the entire case diary, very categorically come to the conclusion that there was sufficient evidence to frame a charge under Section 380, IPC against the applicants. The conclusion so drawn by the learned Magistrate is based on the materials collected during the investigation. The informant Mohan Singh Yadav has no doubt died and he cannot be examined during the trial but this is itself no ground to quash the proceedings when it is contended on behalf of the opposite party No. 2 that there are other witnesses too to support the prosecution story during the trial. 10. The learned counsel for the applicants submitted that there was no reason for the applicants to commit theft as stated in the FIR specially when they are respectable persons and have no criminal history. 10. The learned counsel for the applicants submitted that there was no reason for the applicants to commit theft as stated in the FIR specially when they are respectable persons and have no criminal history. The allegations are highly improbable and absurd. In view of illustration No. 5 of Bhajan Lal’s case (supra), the proceedings of the criminal case pending against the applicants are liable to be quashed. In my opinion, it is true that if the allegations made in the FIR or the 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, the proceedings can be quashed under Section 482, Cr.P.C. but these principles are of no help to the applicants in view of the fact that the satisfaction of the Magistrate, which is based on perusal of the entire materials collected during the investigation, cannot be said to be absurd or inherently improbable. 11. The applicants are alleged to have entered into the house of the opposite party No. 2 and taking advantage of his absence and also the absence of the informant Mohan Singh Yadav, they took away cash amount of Rs.12,000/- from the attachi kept by the opposite party No. 2 in an almirah. These allegations duly supported with the evidence collected during the investigation are not in any way inherently improbable or absurd and make out a prima facie case against the applicants under Section 380, I.P.C. 12. The learned counsel for the applicants further submitted that the investigating officer, on conclusion of the investigation, prepared and submitted a final report but the Senior Prosecuting Officer acted illegally not only in retaining the file for about three years but also in directing the investigating officer to file charge-sheet against the applicants. It was further submitted that the charge-sheet against the applicants was an outcome of the opinion given by the Senior Prosecuting Officer and, as such, the proceedings of the criminal case are liable to be quashed. In support of this submission, the learned counsel for the applicants placed reliance on R. Sarala v. T.S. Velu and others, 2000 (40) ACC 1021. In that case the Apex Court has held that the High Court’s order directing the investigating officer to take opinion of Public Prosecutor for filing charge-sheet was not proper. In support of this submission, the learned counsel for the applicants placed reliance on R. Sarala v. T.S. Velu and others, 2000 (40) ACC 1021. In that case the Apex Court has held that the High Court’s order directing the investigating officer to take opinion of Public Prosecutor for filing charge-sheet was not proper. The Apex Court has further held that opinion of the Public Prosecutor had no relevance and the investigating officer was not required to seek opinion in the matter. In my opinion, the facts of the case of R.Sarala (supra) were some how different. In that case a young bride had committed suicide. An inquiry under Section 174 (3), Cr.P.C. was held. The Sub Divisional Officer, who conducted the inquiry, found that due to mental restlessness the bride had committed suicide and no one was responsible and he accordingly inferred that her death was not due to dowry harassment. However, the police continued with the investigation and submitted a challan against the husband of bride and his mother under Sections 304-B and 498-A IPC. The bride’s father was not satisfied with the challan as the sister of the husband of his daughter had been exonerated and was not made as accused. The deceased’s father filed a petition under Section 482, Cr.P.C. The High Court directed that the papers shall be placed before the Public Prosecutor as it is, without any further investigation, and he shall render an impartial opinion in the matter and thereafter an amended charge-sheet shall be filed in the concerned Court. In view of peculiar facts of that case the Apex Court was of the view that High Court was not justified in giving direction to seek opinion of the Public Prosecutor. It was further held that the investigating officer, though, is subject to supervision by his superiors in rank, is not to take instructions regarding investigation of any particular case even from the executive Government of which he is a subordinate officer. The opinion of the Public Prosecutor in such circumstances was held not relevant and the order of the High Court directing the investigating officer to seek opinion of the Public Prosecutor, was set aside. 13. The opinion of the Public Prosecutor in such circumstances was held not relevant and the order of the High Court directing the investigating officer to seek opinion of the Public Prosecutor, was set aside. 13. In R. Sarala’s case (supra) the Apex Court has further held in para 7 as follows : “The question here is not simply whether an investigating officer, on his own volition or on his own initiative, can discuss with the Public Prosecutor or any legal talent, for the purpose of forming his opinion as to the report to be laid in the Court. Had that been the question involved in this case it would be unnecessary to vex our mind because it is always open to any officer, including any investigating officer, to get the best legal opinion on any legal aspect concerning the preparation of any report. But the real question is, should the High Court direct the investigating officer to take opinion of the Public Prosecutor for filing the charge-sheet.” 14. The investigating officer has ample power under the Code of Criminal Procedure to collect relevant material during the investigation and to arrive on a conclusion independent of any extraneous reasons but he is not in any way precluded in law to seek legal opinion which may assist him in forming a definite conclusion. This power of the investigating officer has been upheld in R. Sarala’s case (supra). It is equally well settled that the investigating officer cannot be given any direction by the Court to seek legal opinion either of the Public Prosecutor or any other legal expert for filing the final report or the charge-sheet. In R. Sarala’s case (supra) the legality of the order of the High Court giving direction to the investigating officer to take opinion of the Public Prosecutor for filing the charge-sheet was in issue before the Apex Court and that question was considered and answered against the verdict of the High Court and it was held that there was no compulsion on the part of the investigating officer to seek legal opinion and the High Court had no power to issue such direction. In my opinion, R. Sarala’s case (supra) instead of supporting the case of the applicants, supports the act of the investigating officer in seeking legal opinion on the final report. 15. The application under Section 482, Cr.P.C. has no merit. In my opinion, R. Sarala’s case (supra) instead of supporting the case of the applicants, supports the act of the investigating officer in seeking legal opinion on the final report. 15. The application under Section 482, Cr.P.C. has no merit. It is accordingly dismissed with costs. ————