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2015 DIGILAW 359 (MP)

Umendra @ Banti v. State of M. P.

2015-03-27

RAJENDRA MAHAJAN

body2015
ORDER 1. The petitioners have evoked extraordinary jurisdiction of this Court under section 482 of the CrPC praying for quashment of an FIR registered as Crime No.195/2013 at Police Station, Gormi, District Bhind, against them for the offences punishable under section 406 read with 34 of the IPC. 2. The brief facts of the case sans unnecessary details are that on 1.7.2013 informant/complainant, who is the respondent No.2 herein, has lodged a written complaint with Police Station, Gormi to the effect that the marriage of his daughter Kavita was settled with Umendra @ Banti, who is the petitioner No.1 herein, with the concurrence of the family members of prospective bride and bridegroom. In the month of December 2012, he arranged a ceremony which is known in his society as ‘Pan Khilai Ki Rasm’. In this ceremony he spent Rs.2,000/-. Thereafter, he started preparation for the marriage. He paid advance money to the tent-owner, milkman, icecream vendor, decorator, photographer and beautician Rs.10,000/-, Rs.28,000/-, Rs.6,000/-, Rs.28,000/-, Rs.10,000/- and Rs.5,000/- respectively. On 16.5.2013, he held Lagun and Faldan ceremony. In this ceremony, he paid rupees seven lacs in cash along with gold chain and ring to the bridegroom/petitioner No.1 Umendra and gave apparel of all types, sweets etc. to his family members. After the ceremony, petitioner No.1 Umendra, his father/petitioner No.2 Prahlad Singh and petitioner No.3 Vinod and others started demanding a “swift car” in dowry. He expressed his inability to give the car in dowry citing his economic conditions. Thereupon, they and other family members of the petitioners used to threaten him for breaking the engagement. To maintain his image in his society and the village, he paid them rupees one lac in cash and promised them that he would give the car after the solemnization of marriage. On 1.6.2013 the marriage was to be performed. But on that day, they did not come with the marriage party for solemnizing the marriage. His daughter, family members and he suffered public ignominy in the society and underwent mental torture. He gave them about nine lacs rupees. On the basis of the written complaint, an FIR was registered on 1.7.2013 as Crime No.195/2013 against the petitioners invoking section 406 read with 34 of the IPC. 3. His daughter, family members and he suffered public ignominy in the society and underwent mental torture. He gave them about nine lacs rupees. On the basis of the written complaint, an FIR was registered on 1.7.2013 as Crime No.195/2013 against the petitioners invoking section 406 read with 34 of the IPC. 3. Learned counsel for the petitioners has submitted that the FIR deserves to be annulled on the following two grounds : Firstly, section 405 of the IPC defines criminal breach of trust and the commission of offence of it is made punishable under section 406 of the IPC. A plain reading of section 405 of the IPC shows that following ingredients are required for commission of the offence of breach of trust. (a) a person should have been entrusted with property, or entrusted with dominion, over property; (b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; (c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust. Learned counsel contended that if the FIR of the case is perused vis-a-vis to the above ingredients, it is clear that not a single ingredient of breach of trust exists in the case. Secondly, if the FIR is read as a whole it discloses that ulterior motive of the respondent No.2 is to get money back which he alleges to have been spent at the time of performance of the ceremonies as stated in the FIR. Thus, it is a simple case of civil dispute between the petitioners and the respondent No.2, for which he should file a civil suit against them for recovery of the money. Hence, the respondent No.2 cannot convert the alleged civil liability of the petitioners into the criminal liability by lodging the FIR. In support of this contention reliance is placed on a decision rendered in the case of Binod Kumar and others v. State of Bihar and another [(2014)10 SCC 663]. 4. Hence, the respondent No.2 cannot convert the alleged civil liability of the petitioners into the criminal liability by lodging the FIR. In support of this contention reliance is placed on a decision rendered in the case of Binod Kumar and others v. State of Bihar and another [(2014)10 SCC 663]. 4. Per contra, learned counsel for the respondent No.2 has submitted that if the FIR read as a whole, it discloses that the petitioners have also committed offences punishable under sections 420 of the IPC and 3 and 4 of the Dowry Prohibition Act, 1961. But the writer of the FIR has not registered offences under the aforesaid sections for lack of knowledge of law. However, these offences may be added in the course of investigation. Hence, the FIR cannot be quashed merely on the ground that ingredients of the section 406 of the IPC do not exist in it. Learned counsel further argued that in the instant case criminal and civil liabilities both co-exist, therefore, the FIR cannot be quashed on the ground alone. In support of this contention, reliance is placed upon the decisions rendered in the cases of Indo Asian Ltd. v. State of Uttarakhand and another [ (2014)3 SCC 191 ], and Vijayander Kumar and others v. State of Rajasthan and another [ (2014)3 SCC 389 ]. 5. This Court has anxiously considered the rival submissions and perused the entire material on record. 6. Admittedly, the investigation into the case is yet to be taken off in view of the order dated 10.12.2013 passed by this Court. 7. The point for consideration before this Court is whether the FIR can be quashed in the case? 8. In the case of Indian Oil Corporation v. NEPC India Limited [ (2006)6 SCC 736 ], the Supreme Court has culled out principles relating to exercise of jurisdiction under section 482 of the CrPC to quash complaints/FIRs and criminal proceedings on the basis of its earlier decisions, the following principles are relevant in the case. (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. In the case of R. Kalyani v. Janak C. Mehta [(2009)1 SCC 516], the Supreme Court has laid down the following propositions of law : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” If the FIR of the case is tested on the touch-stone of the above principles/propositions of law, this Court is of the view that the allegations made in the FIR against the petitioners prima facie constitute offence(s). But, in view of the above principle (i) this Court is refrained from giving a definite opinion as to which offence(s) of what act the allegations of the FIR disclose as it would prejudice the investigating agency. Thus, the FIR cannot be quashed. 9. Regarding investigation, in the case of Kurukshetra University and another v. State of Haryana and another, reported in AIR 1977 SC 2229 , the Supreme Court has held as under : “Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. Thus, the High Court in exercise of inherent powers under section 482, Criminal Procedure Code cannot quash a first information report more so when the police had not even commenced the investigation and no proceeding at all in pending in any Court in pursuance of the said FIR.” Similar views are expressed by the Supreme Court in para 14 of the decision rendered in the case of State of Orissa and another v. Saroj Kumar Sahoo [2006 Criminal Law Reporter (SC) 63], and this Court in the case of V.C. Raam Sukaesh v. State of M.P. [2009(1) MPLJ 163]. It is already stated that the investigation in the case is yet to be commenced. Hence, the FIR cannot be quashed at the threshold. 10. In the case of MCD v. Ram Kishan Rohtagi [ (1983)1 SCC 1 ], the Supreme Court has held thus : “the inherent power should not be exercised to stifle a legitimate prosecution. It is already stated that the investigation in the case is yet to be commenced. Hence, the FIR cannot be quashed at the threshold. 10. In the case of MCD v. Ram Kishan Rohtagi [ (1983)1 SCC 1 ], the Supreme Court has held thus : “the inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under section 482 CrPC.” In the case of State of West Bengal v. Swapan Kumar Guha [(1982) SCC 561], emphasising that the High Court will not normally interfere with an investigation and will permit the inquiry into the alleged offence, to be completed, the Supreme Court in paras 65 and 66 has observed thus; 65. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice required that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. 66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. 66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence.” As it has already been held that the FIR prima facie discloses offence(s), therefore, this Court is bound to allow the investigation into the allegations of the FIR in view of the above law. 11. With regard to existence of civil and criminal liabilities the Supreme Court has held thus in the following cases, Vijayander Kumar and others v. State of Rajasthan and another (supra) : “A given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to informant/complainant that itself cannot be a ground to quash a criminal proceeding - Real test is whether allegations in complaint disclose a criminal offence or not.” Upon the FIR being examined from the angle of the petitioners’ liabilities, this Court finds that the FIR reveals prima facie both the criminal and civil liabilities of the petitioners. In this view of the matter, the contention advanced by learned counsel for the petitioners is not acceptable that since the civil remedy is available to the respondent No.2 against the petitioners, the FIR is liable to be quashed upon this ground alone. 12. There is no legal dispute on the points that an investigating agency has power to add or subtract any offence(s) in the course of investigation of a criminal case depending upon the quality of evidence it comes across and that the agency is not bound to file the report/charge-sheet in terms of section 173 of the CrPC only under the offence(s) in which an FIR is initially registered, in simple words it may file charge-sheet in other offences as well. In such premises, if the contention raised by learned counsel appearing for the petitioners is accepted for the sake of arguments that the FIR does not disclose the offence(s) under section 406 of the IPC despite that the FIR cannot be quashed. 13. In view of the above discussions, this Court arrives at the following conclusions : (i) The allegations levelled in the FIR against the petitioners prima facie discloses other offence(s). (ii) The FIR cannot be quashed merely on the ground that it does not disclose the offence under section 406 of the IPC under which it is registered. (iii) The FIR cannot be quashed before the commencement of investigation. (iv) Notwithstanding that the civil remedy is available to the respondent No.2 against the petitioners, the FIR cannot be quashed as it discloses prima facie criminal offence(s). On the basis of the above conclusions, this petition is hereby dismissed being devoid of merits and substance. 14. Accordingly, this petition stands disposed of. ............