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2015 DIGILAW 383 (JK)

Gurdeep Singh v. State of J&K.

2015-08-05

TASHI RABSTAN

body2015
JUDGMENT 1. Through the medium of this petition filed under Section 561-A Cr.P.C, the inherent jurisdiction of this Court is being invoked to quash the Final report/Challan in case titled as State v. Gurbachan Singh and others under Sections 420/467/468/471/406/109 and 120 RFC, arising out of FIR bearing No. 302/2012 dated 19.11.2012 registered with Police Station, Gandhi Nagar, Jammu pending before the Court of learned First Additional Sessions Judge, Jammu, as also the Supplementary Challan numbered 4, dated 12.03.2004 to the extent it pertains to the petitioner, order dated 28.05.2014 by virtue of which process was issued by learned First Additional Sessions Judge, Jammu and all the subsequent proceedings initiated against the petitioner pursuant to FIR No. 302 of 2012 dated 19.11.2012 on the following grounds, (i) That in absence of any specific allegation against the petitioner either in the FIR or in the statements of witnesses recorded under Sections 161 Cr.P.C and 164-A Cr.P.C, the challan as against the petitioner could not have been presented by respondent, as apparently no offence has been made out against the petitioner. Merely because at one point of time, the petitioner was the Director of the Company, he cannot be held guilty of the commission of offence by the other Directors of the Company, against whom specific acts of omissions have been alleged in the challan. It is claimed that in criminal vicarious liability for the commission of acts and omissions of others cannot be fastened, (ii) That the allegations contained in the FIR and the challan do not constitute any act of omission or commission which would amount to the commission of any criminal offences much less the offences alleged in the challan. 2. The State while resisting the petition contends that the Investigating Officer after thorough investigation has concluded that the petitioner along with other Directors was responsible in running different fictitious Companies under different names and style. All of them accepted the deposits from the depositors by alluring them with the promise of providing double amount in five years. The Investing Officer has specifically concluded that deposits were accepted by making false promises to the depositors, petitioner too was one of the Directors of the Companies and that names of the Company were being changed from time to time to hoodwink the depositors and all this was done by all the Directors in conspiracy with each other. The Investing Officer has specifically concluded that deposits were accepted by making false promises to the depositors, petitioner too was one of the Directors of the Companies and that names of the Company were being changed from time to time to hoodwink the depositors and all this was done by all the Directors in conspiracy with each other. It is further contended that in view of the efforts made by all the Directors and conspiracy hatched by all of them, Section 120 RPC too has been invoked. In that view of the matter, petitioner ' cannot be allowed to escape his liability to be answerable to law for the commission of offence which all the Directors including the petitioner have committed pursuant to conspiracy hatched by them. Further, learned counsel for the State submitted that Investigating Officer after investigation has presented the challan, which is pending before the competent Court of law and the charges are yet to be framed. All the pleas as contended by the learned counsel for the State which have been raised by the petitioner through the medium of instant petition could be very well raised at the time of framing of charges and that learned trial Court would be in better position to appreciate all these pleas and submit at the time of framing of charges. The petition-in-hand, as contended by learned counsel for the State, is otherwise premature. Learned counsel for the State further argued that as per the evidence concluded during the course of investigation and perusal of the challan and supplementary challan, it cannot be said that there is no allegation against the petitioner and that he has been roped in the case only because he at one point of time was Director of the Companies. 3. Heard learned counsel for the parties and perused the record. 4. The petitioner in short claims that no offence as alleged in the case is made out as against him in the challan, as such, putting the petitioner to trial in such a situation would be sheer abuse of the process of law, as such, proceedings initiated on the basis of charges impugned in this petition deserves to be quashed. 5. The petitioner in short claims that no offence as alleged in the case is made out as against him in the challan, as such, putting the petitioner to trial in such a situation would be sheer abuse of the process of law, as such, proceedings initiated on the basis of charges impugned in this petition deserves to be quashed. 5. The petitioner has relied upon several judgments in which broader parameters for exercise of inherent jurisdiction vested in the High Court in terms of Section 488 RPC (Central) which is parimateria of 561-A Cr.PC (State) have been laid down. The petitioner in particular has relied upon a judgment reported in 2008(5) SCC 668 titled Maksud Saiyed v. State and others, and has argued that Penal Code does not contain any provisions for attaching vicarious liability on the part of the Managing Director or Directors of the Company when the accused is a Company. Reliance placed by the learned counsel for the petitioner on the aforesaid judgment is mis-placed for the reasons that aforesaid doctrine would be attracted only if the Company alone is an accused. The Hon'ble Supreme Court in the aforesaid judgment has, therefore, held that if as per the allegations contained in the complaint, the offence has been alleged against the Company, therefore, Directors of the Company, who are not personally liable cannot be fastened with vicarious criminal liabilities. However, in the instant case allegations are specifically against the Directors, who in conspiracy with each other defrauded all the depositors firstly by alluring them to make deposits with the promise to double the amount in five years and then were denied payments on maturity. In that view of the matter, judgment relied upon by petitioner would be of no help in so far as the instant case is concerned. 6. To similar facts, other judgments relied upon by learned counsel for the petitioner are also distinguishable on facts and have no applicability to the facts of the instant case. 7. Per contra, learned counsel for the State submitted that the powers of this Court in terms of Section 561-A Cr.P.C. are only limited to” the extent of finding out as to whether the case falls within the broader parameters laid down by the Hon'ble Supreme Court of India in State of Haryana v. Bhajan Lal reported in 1992 Suppl (1) SCC 335. 8. 8. Learned counsel for the State has argued that inherent jurisdiction of the Hon'ble Court can only be exercised in rarest of rare case and would not be readily available to the accused particularly when he has ample opportunity to project his case before the learned trial Court at the time of framing of charges. Mr. Khajuria, learned counsel for the respondent referred to the allegations in the challan that the Directors of the company in connivance with each other floated the Company with an intention to defraud the depositors. At the time, when the Company was floated and deposits were being accepted there was no dispute that the petitioner was one of the Directors of the Company. 9. It is a well settled law that, the defences whatsoever of the accused are a matter of trial and cannot be looked into in a petition for quashing the proceedings under Section 561-A Cr.P.C. The petitioner herein can agitate his grievances or put forth his defences before the trial Court and the trial Court is free to decide the same at appropriate stage. 10. The Apex Court in case State of Haryana v. Ch. Bhajan Lal, AIR 1992 SC 604 , has observed that the powers under Section 561-A Cr.P.C. should be exercised very sparingly and with circumspection and that too in rarest of rare cases. It would be relevant to reproduce paragraph 109 thereof hereunder. “We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 11. The Apex Court in its latest judgment in Padal Venkata Rama Reddy v. Kovvuri Satyanarayana Reddy, (2011) 12 SCC 437 while relying on the case of Ch. Bhajan Lal (supra) has held as under: When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. Bhajan Lal (supra) has held as under: When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. The scope of exercise of power under Section 482 and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in detail in Bhajan Lal (supra). The powers possessed by the High Court under Section 482 are very wide and at the same time the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution.” 12. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured, then the High Court can and must exercise its inherent powers under Section 561-A of this Code. This power can be invoked only in an event when the aggrieved party is being unnecessarily harassed and has no other remedy open to it. The power under Section 561-A is not intended to scuttle justice at the threshold but to secure justice. 13. The charges in the aforesaid case are yet to be framed where the accused would have ample opportunity to project all these pleas and claimed his discharge. Applying the parameters laid down in Bhajan Lal's case, I do not find any case for quashment of proceedings at this stage. The contention raised by the learned counsel for the petitioner even if presumed to have some force would be relevant either at the stage of framing of charges or subsequently when petitioner accused leads his defence. 14. Viewed thus, I do not find any force in the submissions made by the learned counsel for the petitioner. The contention raised by the learned counsel for the petitioner even if presumed to have some force would be relevant either at the stage of framing of charges or subsequently when petitioner accused leads his defence. 14. Viewed thus, I do not find any force in the submissions made by the learned counsel for the petitioner. Accordingly, no case for exercise of inherent jurisdiction under Section 561-A Cr.P.C. for quashing final report/challan/supplementary challan has been made out. Petition, therefore having been found devoid of any merit, is dismissed along with connected MP(s). However, it is made clear that the Trial Court shall not be influenced by any of the observations made here in deciding the matter on its merits while dealing with this case.