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2015 DIGILAW 1148 (MP)

Rajveer v. State of M. P.

2015-11-04

SUJOY PAUL

body2015
ORDER 1. This petition filed under section 482 of the Code of Criminal Procedure (CrPC) is directed against the order dated 28.11.2011, passed by Judicial Magistrate First Class (JMFC) Kolaras, District Shivpuri in Criminal Case No.1077/2006. The Revisional Court's order passed in Civil Revision No.197/2011 dated 12.11.2014 is also called in question, whereby the order of learned JMFC is affirmed. 2. Shri Vivek Jain, learned counsel for the petitioner, contended that as per the story of the prosecution, the offence under section 394 is not made out. It is urged that the Court below should have taken action under section 323 CrPC. It is further urged that section 394 IPC is attracted only when there is an injury on the complainant. The Court was only required to see the contents of FIR. The Court was not required to see the material collected by the police during investigation. It is submitted that on the basis of allegations of FIR, no case is made out against the petitioners and if prosecution is permitted to continue, it will amount to abuse of process of Court. Lastly, it is contended that the statement of complainant recorded under section 161, CrPC, shows that he went to Banmore on his own. Hence, section 394 IPC is not attracted. 3. Shri Kamal Jain, learned Government Advocate opposed the said relief and submitted that no interference is warranted. 4. I have heard learned counsel for the parties present and perused the record. 5. Before dealing with rival contentions, it is apt to apposite to reproduce the principles laid down by the Supreme Court in (2012)9 SCC 460 (Amit Kapoor v. Ramesh Chander). The apex Court has culled out following basic principles on which jurisdiction under section 397/482 CrPC can be exercised:- 1. Though there are no limits of the powers of the Court under section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. 2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 3. Where the factual foundation for an offence has been laid down, the Courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 4. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 5. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate Courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 6. Where there is an express legal bar enacted in any of the provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 7. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 8. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 9. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the Court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. 10. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. 11. Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. 12. It is neither necessary nor is the Court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 13. In exercise of its jurisdiction under section 228 and/or under section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. 14. Quashing of a charge is an exception to the rule of continuous prosecution. The Court has to consider the record and documents annexed with by the prosecution. 14. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 15. Where the charge-sheet, report under section 173(2)CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 6. In the present case, if the FIR is read in its entirety, it will be clear that on the face value of FIR, allegations under section 394 IPC are made out. The statement recorded under section 161 CrPC further shows that Shri Krishna Lal made a specific stand that he was forcibly taken to Banmore. If challan papers are carefully perused, it will be clear that prima facie case is made out to proceed against the petitioners. At this stage, this Court is not obliged to act as an appellate authority and examine the sufficiency and adequacy of evidence. In the present case, necessary factors for interference under section 482 CrPC are not available. 7. I find no reason to interfere. Petition sans substance and is hereby dismissed. ..................