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2015 DIGILAW 589 (ALL)

Satish Chandra Sharma v. State of U. P.

2015-03-26

A.P.SAHI, VIJAY LAKSHMI

body2015
JUDGMENT Heard Sri Sanjeev Kumar Pandey, learned counsel for the petitioner. 2. The petitioner is being prosecuted on the allegation that he prepared a forged and fake document stated to be a letter from the office of the District Inspector of Schools addressed to the Additional Director making a recommendation in favour of the petitioner so that he could receive the teachers' award from the State Government. This fake document was also utilized by the petitioner for filing a writ petition before this Court that was however dismissed. 3. Sri Pandey on the strength of the judgment of the Apex Court in the case of Gopalakrishna Menon and another Vs D. Raja Reddy and another, (1983) 4 SCC 240 contends that only a complaint could have been lodged that too even at the behest of the official of the court where the alleged fake document is stated to have been filed. 4. An inquiry was conducted and it appears that the fake document was allegedly utilized by the petitioner for receiving some benefit. The said document has been filed as Annexure 2 to the writ petition which was part of the record of the writ petition that had been filed by the petitioner. 5. Sri Pandey contends that the judgment on which reliance has been placed, it is clear that it is only a complaint which could have emanated and that too even at the behest of the officials of the court concerned and not through an FIR as has been done in the present case. He therefore submits that the proceedings cannot continue and the FIR deserves to be quashed. 6. We have perused the said judgment and that was a clear case in relation to the offences said to have been committed under Chapter XVIII of the Indian Penal Code relating to forgery. 7. In the instant case the allegations which have been made also travel upto the allegations under Section 420 I.P.C. 8. 6. We have perused the said judgment and that was a clear case in relation to the offences said to have been committed under Chapter XVIII of the Indian Penal Code relating to forgery. 7. In the instant case the allegations which have been made also travel upto the allegations under Section 420 I.P.C. 8. Sri Pandey referring to Section 195 Cr.P.C. has urged that the offences alleged herein under Sections 467, 468 and 471 I.P.C., could not have been made subject matter of an FIR and only a complaint case could have been filed as the fake document had been used in a writ petition in the High Court and it had not emanated from the office of the District Inspector of Schools or any Educational Authority as alleged by the respondents. He therefore submits that without resorting to a complaint the FIR could not have been lodged. 9. Sri Pandey submits that no such offence under Section 420 I.P.C. is made out and the FIR deserves to be quashed, inasmuch as, the petitioner did not receive any consequential benefit nor did he induce any person for the purpose of either cheating or receiving any such benefit. The contention is that the FIR which has now been lodged by the Ex-Manager, the same itself was not maintainable and the proceedings initiated on the basis thereof cannot be said to be in accordance with law. He therefore prays that the FIR be quashed. 10. Sri Nripendra Chaturvedi has appeared for the respondent no. 4 and the learned AGA for the respondent nos. 1, 2 and 3. 11. Sri Chaturvedi contends that as a matter of fact the petitioner first made an attempt to get the benefit before the educational authorities on the strength of a forged document and having failed to get any benefit he approached the High Court and then filed a writ petition which was ultimately dismissed and he therefore had induced the officials at the first instance before coming to the High Court on the strength of the alleged document. Consequently, the submission is that the inducement had begun before approaching the High Court. 12. Sri Pandey contends that the allegation does not appear to be correct. The inducement part is not at all established either from a perusal of the FIR or from any evidence collected in this regard. Consequently, the submission is that the inducement had begun before approaching the High Court. 12. Sri Pandey contends that the allegation does not appear to be correct. The inducement part is not at all established either from a perusal of the FIR or from any evidence collected in this regard. He further contends that no cheating can be alleged to have been committed so as to prosecute the petitioner for the said offence under Section 420 I.P.C. 13. We have considered the submissions raised and we have perused the allegations that have been made in the FIR. Whether the petitioner induced the officials of the court which is said to be before coming to the High Court, is a subject matter of investigation, and therefore, to quash the FIR on the suggestion made by the learned counsel for the petitioner would not be appropriate at this stage. The outcome of the investigation will therefore govern the contentions that have been advanced in relation to the part of the inducement or cheating as alleged by the petitioner. It is also worth mentioning that this dispute as to whether in a given case a complaint would lie came up for consideration before a division bench at Lucknow Bench of this Court where the answer given was that in view of the provisions that were subject matter of dispute therein, an FIR would not lie. 14. A similar dispute was raised before a division bench of this Court in Surendra and 4 others relying on the said decision whereafter in view of the law laid down in State Vs. Sanjay reported in 2014 (9) SCC 772 a writ petition was dismissed clearly indicating that the investigation cannot be interfered with and such issues can always be raised after the police report is submitted before the court. The judgment is extracted hereinunder: - "Heard Sri V.P. Gupta, learned counsel for the petitioners. This petition has been filed for quashing of the FIR and the main ground of challenge is that in view of the provisions of the Food Safety and Standards Act, 2006 the provisions of Sections 272 and 273 IPC cannot now be made the basis for prosecution in such matters as presently involved and reliance has been placed on the decision in the case of Pepsico India Holdings (Pvt) Ltd. Vs. State of U.P., LAWS (ALL) 2010-9-34. State of U.P., LAWS (ALL) 2010-9-34. The division bench judgment has been placed before the Court. Learned counsel for the petitioners further contends that the FIR is fabricated and founded on false allegations as such none of the offences including that under Section 60 of the Excise Act is made out against the petitioners. We have perused the FIR and we find that on a raid conducted, the contraband was found and some persons, namely the five accused, were filling bottles with spurious liquor and were mixing noxious capsules in the said bottles. As soon as the police party arrived they ran away leaving the contraband behind consisting of several hundred cartons of liquor. Samples were sealed and have been sent for forensic examination. The petitioners were accordingly sought to be prosecuted under Section 60 of the Excise Act and Sections 272 and 273 IPC being Case Crime No.408 of 2014. Learned counsel for the petitioners submits that under the schedule of the 2006 Act alcohol is also included and in the aforesaid circumstances the prosecution stands barred under the provisions of the IPC, particularly, Sections 272 and 273 IPC. He further submits that Section 60 of the Excise Act would not apply. We are unable to agree inasmuch as the allegations against the petitioners is of mixing noxious capsules in bottles of liquor and, therefore, this is not a case where any licensed business is being carried on. The petitioners are not licence holders, manufacturers or dealers in liquor. They have been nabbed in an act involving the mixing of such capsules in liquor thereby attempting to circulate spurious liquor which is not protected under the 2006 Act, moreso when this is only the stage of investigation. The contention raised relying on Pepsico India case, is also misplaced, inasmuch as if the petitioners are not licensees or manufacturers they cannot seek any such benefit as they are indulging in an illegal act for which they had no authority in law. The question as to whether the offences are made out or not would depend upon the conclusion of the investigation which has not yet arrived with the filing of the charge sheet. The question as to whether the offences are made out or not would depend upon the conclusion of the investigation which has not yet arrived with the filing of the charge sheet. This stage is also, therefore, premature to raise any such contention so long as the police report is not submitted under Section 173 (2) Cr.P.C. So far as the legal contention that is founded on the basis of the judgment in the case of Pepsico India Holdings (Pvt) Ltd. (supra) is concerned, it would be apt to mention the judgment in the case of State Vs. Sanjay reported in 2014 (9) SCC Page 772, which also explains the legal position that if the offences are made out under the IPC then in that event such protection or bar as pleaded by the the petitioners under a special act would not be attracted so as to impede investigation by the police. The aforesaid judgment, therefore, supports the contention of the learned Government Advocate that the present writ petition proceeds on a misconceived legal position at this stage. Consequently, there is no merit in the writ petition which is accordingly rejected." 15. No case for quashing of the FIR is made out. 16. The writ petition is dismissed with the aforesaid observations.