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2012 DIGILAW 136 (HP)

Om Chand Parwal v. State Of Himachal Pradesh

2012-03-27

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This petition under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India has been filed against the order dated 20.8.2011 passed by the learned Judicial Magistrate, 1st Class (1), Shimla whereby charges under sections 420 and 120-B of the Indian Penal Code have been framed against the petitioners. 2. Material facts necessary for the adjudication of this petition are that F.I.R. bearing No.344/1998 was registered against the petitioners under sections 420, 406, 467, 471 and 120-B of the Indian Penal Code. Petitioners filed an application under section 239 of the Code of Criminal Procedure before the learned Judicial Magistrate (3), Shimla. The same was dismissed on 17.1.2006. Petitioners preferred revision petition against the same before the learned Sessions Judge, Shimla. He dismissed the same on 1.6.2006. Charges were framed on 1.10.2007. The same were challenged by way of filing revision before the learned Additional Sessions Judge, Fast Track Court, Shimla. He allowed the same on 23.9.2008. Directions were issued either to frame charge under section 406 or 420 of the Indian Penal Code after hearing the petitioners. Thereafter, now, the charges have been framed against the petitioners under sections 420 and 120-B of the Indian Penal Code. 3. Ms. Anu Tuli has strenuously submitted that framing of charges against the petitioners is illegal and contrary to law. She has also argued that as per statements recorded under section 161 of the Code of Criminal Procedure, no offence under section 420 of the Indian Penal Code has been made out. According to her, the money was received by the company and the petitioner No.1 was an employee and petitioner No.2 is Ex-Director of the Company. She has also argued that no offences are made out against the petitioners on the basis of material collected by the prosecution. She has further argued that the Chairman, Managing Director and other Directors have not been roped in by the prosecution. 4. Mr. Rajinder Dogra, learned Additional Advocate General has vehemently argued that on the basis of material brought on record by the prosecution charges have legally been framed against the petitioners. In other words, he has supported the order dated 20.8.2011. He has also argued that the recording of evidence has also commenced on 21.11.2011. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. In other words, he has supported the order dated 20.8.2011. He has also argued that the recording of evidence has also commenced on 21.11.2011. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. There is no merit in the contention of Ms. Anu Tuli that on the basis of statements of Amarjit Kaur, Satish Kumar Sharma and Lalit Kumar made under section 161 of the Code of Criminal Procedure, no case is made out. The statements are to be read during the course of trial. The Charges have to be framed on the material adduced by the prosecution. The documents adduced/produced by the petitioners at this stage cannot be looked into as per the law laid down by their Lordships of the Honble Supreme Court in AIR 2005 SC 359 . It has come on the record that thorough investigation has been carried out and the role of Chairman, Managing Director and other Directors was also inquired into but nothing incriminating has been found against them. It is settled law that in case trial court comes to conclusion that the offence has also been committed by other persons and there is evidence before the Magistrate, he can implead these persons as co-accused during the trial. In the instant case, the money has been received by the petitioners and the cheques issued to the complainants have bounced. It has come in the evidence that the money was collected by petitioner No.1 and the same was handed over to petitioner No.2. There is no material brought on record by the petitioners that the prosecution has been launched against them maliciously or with ulterior motive. 7. Their Lordships of the Honble Supreme Court in State of Maharashtra and others v. Arun Gulab Gawali and others, (2010) 9 SCC 701 have held that court under its inherent powers can neither intervene at an uncalled for stage nor can it "soft-pedal" the course of justice at crucial stage of investigation/proceedings. Their Lordships have further held that inherent power is to be exercised with due care and caution. Their Lordships have held as under: "13. Their Lordships have further held that inherent power is to be exercised with due care and caution. Their Lordships have held as under: "13. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can 'soft-pedal the course of justice' at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as 'Cr.P.C.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of West Bengal & Ors. v. Swapan Kumar Guha & Ors., AIR 1982 SC 949 ; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors., AIR 1998 SC 128 ; G. Sagar Suri & Anr. v. State of U.P. & Ors., AIR 2000 SC 754 ; and Ajay Mitra v. State of M.P. & Ors., AIR 2003 SC 1069 ). 16. In State of Karnataka v. L. Muniswamy & Ors. AIR 1977 SC 1489 , this Court held as under:- "In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction." (Emphasis added). 8. Their Lordships of the Honble Supreme Court in Iridium India Telecom Limited v. Motorola Incorporated and others, (2011) 1 SCC 74 have held that inherent power of High Court under section 482 of the Code of Criminal Procedure of quashment of proceedings in case of economic offences/commercial transactions, breach of trust, cheating etc. is to be exercised sparingly and only when prosecution is launched maliciously or with ulterior motive. Their Lordships have held as under: "76. As noticed earlier, both the appellants and the respondents have much to say in support of their respective view points. Which of the views is ultimately to be accepted, could only be decided when the parties have had the opportunities to place the entire materials before the Court. This Court has repeatedly held that power to quash proceedings at the initial stage have to be exercised sparingly with circumspection and in the rarest of the rare cases. The power is to be exercised ex debito justitiae. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. 78. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. Such power can be exercised where a criminal proceeding is manifestly attended with malafide and have been instituted maliciously with ulterior motive. This inherent power ought not to be exercised to stifle a legitimate prosecution. 78. In our opinion, the High Court clearly exceeded its jurisdiction in quashing the criminal proceeding in the peculiar facts and circumstances of this case. The High Court noticed that while exercising jurisdiction under Section 482 Cr.P.C. "the complaint in its entirety will have to be examined on the basis of the allegations made therein. But the High Court has no authority or jurisdiction to go into the matter or examine its correctness. The allegations in the complaint will have to be accepted on the face of it and the truth or falsity cannot be entered into by the Court at this stage." Having said so, the High Court proceeded to do exactly the opposite." 9. Their Lordships of the Honble Supreme Court in Asmathunnisa v. State of Andhra Pradesh, (2011) 11 SCC 259 have laid down the following broad categories where inherent powers can be used under section 482 of the Code of Criminal Procedure: (i) "Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) Where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge." 10. Their Lordships of the Honble Supreme Court in Padal Venkata Rama Reddi alias Ramu v. Kovvuri Satyanarayana Reddi and others, (2011) 12 SCC 437 have held that there is no need to analyse each and every aspect meticulously before trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole and the statement of witnesses made on oath to be verified in full and materials put forth in the charge-sheet ought to be taken note of as a whole before arriving any conclusion. Their Lordships have finally concluded that it is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons. 11. Accordingly, there is no merit in the petition and the same is dismissed. Their Lordships have finally concluded that it is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons. 11. Accordingly, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. Observations, made herein above, shall have no bearing on the merits of the case. No costs. 12. Mr. Rajinder Dogra submits that the evidence is being recorded in the case. In view of this, the trial court is directed to complete the trial within six months from today.