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2012 DIGILAW 375 (PAT)

Kamlakant Sinha v. State of Bihar

2012-03-01

ADITYA KUMAR TRIVEDI

body2012
Judgment Initially, instant petition was filed under the banner of Cr. Miscellaneous praying therein for quashing of FIR as such subsequently vide order dated 7.12.2006 has been converted into Cr. Writ. 2. Petitioner Kamlakant Sinha has prayed for quashing of FIR of Laheri (Biharsharif) P.S. Case No. 60 of 2006 registered under Sections 420, 467, 379 of the IPC and 47 of the Excise Act. 3. Chaudhary Anant Narayan, Executive Magistrate, Nalanda, as directed by the District Magistrate, Nalanda vide Memo No. 1614/Confidential dated 19.4.2006 launched prosecution against the petitioner, filed written report disclosing therein that petitioner was granted license for wholesale dealership of wine under Sale and Trade Scheme as per Letter No. 962 dated 11.3.2006 by the District Magistrate, Nalanda. During continuance of license, complaint were received regarding malfunctioning over which enquiry was conducted and after getting enquiry report, vide Memo No. 1145/Confidential dated 22.3.2006 license was cancelled side by side the Excise Superintendent, Nalanda was directed to take proper action in accordance with law wherein he failed and accordingly, the District Magistrate directed the complainant for launching of prosecution which he did. 4. Contention on behalf of the petitioner is that the launching of prosecution happens to be bad in law as well as on facts, hence is fit to be quashed. 5. Then, submitted that no illegality or irregularity was committed by the petitioner during continuance of him being a licensee under the Excise Act rather as per instruction given by the competent authority the previous stock of other licensees, which was not renewed subsequently was also tagged with him. Further submitted that with regard to shifting of shop premises, petitioner had already informed the competent authority. Therefore, no violation of any of the condition of the license has been made on his behalf. Then submitted that against the order issued by the District Magistrate vide Memo No. 1145/Confidential dated 22.3.2006 through which the license of the petitioner has been cancelled, petitioner has filed Revision Petition before the Board of Revenue bearing Case No. 64 of 2006 wherein vide order dated 6.7.2006, the aforesaid order has been set aside. As such, institution of the case in the background of above referred letter appears to be in contravention of the order of the Revisional Authority. 6. As such, institution of the case in the background of above referred letter appears to be in contravention of the order of the Revisional Authority. 6. The State has filed counter affidavit as well as also raised submission refuting the points whatever been argued on behalf of petitioner. Then submitted that FIR cannot be quashed if the allegation makes out a prima facie case. Then submitted that there has been irregularity found during course of conduction of enquiry. So, prima facie, contravention of conditions of license attracting penal provision is there and in the aforesaid background, the prayer of the petitioner is fit to be rejected. 7. Not only this, it has further been submitted that true it is that the order of the District Magistrate has been set aside by the Board of Revenue however the matter was remitted to the District Magistrate to decide afresh as per direction given therein and by virtue of aforesaid order, the criminal' prosecution should not be quashed because prima facie material still survives. But, fairly submitted that since thereafter, the District Magistrate did not pass any order and the matter is pending since 2006. 8. After appreciating rival contention, it is evident that the order of the District Magistrate as communicated vide Memo No. 1145/Confidential dated 22.3.2006 by which license of the petitioner has been cancelled, has been set aside by the Board of Revenue under Revision No. 64 of 2006 dated 6.7.2006 and the matter has been remitted to the District Magistrate/Collector with a direction to look into this case in greater depth and find out suitable ways for enhancing the collection of excise duty. The relevant passage may be quoted as:- "Close reading of the papers submitted by the petitioner and the show cause notice and order passed by the Collector it appears that many of the allegations have not got sound base. Most of the allegations have been explained by the petitioner. Allegations related to non-presentation of the said register at the time of inspection have not been investigated. It is not clear whether the register is not maintained at all or whether the register, though maintained, was deliberately not shown. Regarding other allegations Investigating Officer has not gone into depth of allegations. Many allegations reflect that regular inspection is not done by the excise officers". 9. It is not clear whether the register is not maintained at all or whether the register, though maintained, was deliberately not shown. Regarding other allegations Investigating Officer has not gone into depth of allegations. Many allegations reflect that regular inspection is not done by the excise officers". 9. The criminal prosecution is a method to punish the culprit for the act committed or omitted. Criminal prosecution happens to be such event by which the liberty of an individual is put at stake. Criminal prosecution is a process by which constitutional liberty vested and availed by an individual is bound to cease. Therefore, presence of criminal prosecution and its continuance should not be guided by the whimsical action or step taken by an individual nor it should be permitted to 'become a tool for satisfying personal grudge or vendetta. That happens to be reason behind that since R.P. Kapur case, the Hon'ble Apex Court has taken care of and permitted quashing of prosecution. The ingredients earlier formulated under the aforesaid leading case was not found to be meeting with the requirement, consequent thereupon, stage by stage it was allowed to expand which lastly in the case of State of Haryana & Ors vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604 been made exhaustive by way of identifying seven categories which could justify quashing of the prosecution under paragraph-102. The same is quoted 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. (3) Where the uncontroveretd 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. (3) Where the uncontroveretd 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, on 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 grounds for proceedings 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 proceedings 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." 10. Side by side a rule of caution has also been given that it should not be exercised in a routine manner. The gist happens to be whether there happens to be presence of prima facie case and unless and until the aforesaid presence of prima facie case is found poised by all or any of the ingredients so prescribed as referred above, quashing is not at all permissible. 11. Now coming to the case in hand, the matter arose only after cancellation of license so communicated vide Memo No. 1145/Contidential dated 22.3.2006 and as the aforesaid order had already been annulled by the Revisional Court and further having the case remanded, no order has been passed by the District Magistrate/Collector for the last six years, consuming the relevant financial year for which license was granted, the instant prosecution appears to be nothing but an abuse of the process of the court. Thus, FIR of Laheria (Biharsharif) P.S. Case No. 60 of 2006 is quashed. 12. Consequent thereupon, petition is allowed.