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Madhya Pradesh High Court · body

2016 DIGILAW 153 (MP)

Balasaheb Bhopkar v. State of M. P.

2016-02-25

SUSHIL KUMAR GUPTA, U.C.MAHESHWARI

body2016
ORDER Maheshwari, J. -- 1. On behalf of the applicants, this petition is preferred under section 482 of CrPC for recalling the order dated 4.2.2015 delivered in Miscellaneous Criminal Case No.11698/2014, whereby such petition filed for quashment of the FIR registered as Crime No.316/2014 at University Police Station, Gwalior for the offences of sections 419, 420 of IPC, section 3(2), (3) and (4) of Madhya Pradesh Nikshepakon Ke Hito Ka Sanrakshan Adhiniyam, 2000 and sections 45-S/58-b (5-A) of Reserve Bank of India Act, 1934 and sections 4, 5 and 6 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978 has been dismissed on two counts in the following manner : “We have perused the petition. We have not found any substance in the petition for quashment of the aforesaid FIR. Thus, the same deserves to be dismissed on merits. But in the available circumstances, according to which, after pleading the no instruction by the engaged counsel of the applicant, no one is present to prosecute this petition, the same is hereby dismissed for want of prosecution.” 2. Having heard the counsel at length, keeping in view the arguments, we have carefully gone through the petition as well as the annexed papers along with the order impugned dated 4.2.2015, whereby the aforesaid petition filed under section 482 of CrPC bearing Miscellaneous Criminal Case No.11698/2014 for quashment of the FIR has been dismissed. 3. Applicants’ counsel submits that Shri Navnidhi Parharya, learned counsel appearing for the applicants on the aforesaid date dated 14.2.2015 was intimated to withdraw the aforesaid Miscellaneous Criminal Case No.11698/2014 with liberty to file a fresh application under section 482 of CrPC in the last week of January 2015. Instead of such instruction to the counsel on behalf of the applicants, such counsel Shri Navnidhi Parharya instead to withdraw the petition, pleaded no instructions stating that none of the applicants had contacted him to give instructions and also prayed to withdraw from such petition and on consideration by allowing such submission of the counsel, the petition was taken into consideration and after making some observations on merits of the matter according to which it was held that the petition deserves to be dismissed on merits but in absence of the applicants, the same was dismissed for want of prosecution also. Learned counsel, by referring the provisions of sections 482 and 362 of CrPC said that at the level of High Court, in view of the language of section 482 of CrPC, the provisions of section 362 of CrPC do not come in the way to recall any order, passed by this Court, without extending any opportunity of hearing to the party concerned and in such circumstances, irrespective of the provisions of section 362 of CrPC, this court has jurisdiction to recall the aforesaid order and restore the petition by invoking the inherent power enumerated under section 482 of CrPC. In support of such contention, she cited and referred various reported judgments, the same would be considered at the appropriate stage of the order. 4. The aforesaid prayer was seriously opposed on behalf of the State by State counsel Shri Tomar with the assistance of the case diary. Firstly by referring the provisions of section 362 of CrPC he said that according to such provisions after passing the order and signed by the Court, the Court has only jurisdiction to modify and correct the clerical or arithmetical error but in the criminal matters the Court has no authority to modify, cancel or correct the entire order. In continuation, he said that it is a settled proposition of law that where there is a specific provision in the Code of Criminal Procedure, then for that purpose for recalling or to modify any order, the inherent powers of this Court enumerated under section 482 of CrPC, could not be invoked. In support of such argument, he has also referred the language of section 362 of CrPC and firstly prayed to dismiss this petition on the aforesaid technical ground saying that it is apparent from the impugned order that on merits also no case was found in favour of the applicants for quashment with the observation that the petition deserves to be dismissed on merits. In continuation, on merits he said that mere perusal of the FIR and the evidence collected by the Investigation Agency till date available in the case diary, it is apparent that there is sufficient prima facie evidence to show the ingredients of the alleged offence against the applicants and in such premises also the impugned order does not require any modification or change by recalling the same. 5. 5. As far as the case laws cited on behalf of the applicants are concerned, learned State counsel said that in the available circumstances any of such cited cases is neither applicable nor helping to the applicants and the same have been decided in different and distinguishable circumstances, which is not the situation in the case at hand. He further said that in the present matter, the counsel of the applicants was present at the time of hearing of the aforesaid earlier petition under section 482 of CrPC and he pleaded no instructions and thereafter with the assistance of the State Counsel, the case diary was perused by the Court and on the basis of the available evidence of the case diary the Court has observed that this petition deserves to be dismissed on merits but only on technical ground that after pleading no instruction by the applicant’s counsel and withdrawing from the case, no one was present on behalf of the applicant, that’s why formally it was observed that the petition was dismissed for want of prosecution. He further said that under the garb of section 482 of CrPC, the applicants could not be permitted to prosecute his earlier petition again by recalling the impugned order contrary to the provisions of section 362 of CrPC and prayed for dismissal of this petition. 6. Keeping in view the aforesaid arguments, after perusing the record available with the petition along with the record of the earlier disposed of Miscellaneous Criminal Case No.11698/2014 so also the case diary, we have found sufficient prima facie evidence against the applicants establishing ingredients of the alleged offence against the applicants and in further investigation the custodial interrogation of the applicants is also required and as per the settled law that where there prima facie evidence is available in the case diary against the accused in respect of the alleged offence, then in such circumstances of the case, the FIR of the case or any other proceeding or the charge-sheet could not be quashed. So in such premises, we are of the considered view that this court has not committed any error in holding in the impugned order that the petition of the applicants filed for quashment of the FIR deserves to be dismissed and we are still of the same opinion that on merits there is no scope in the matter to quash the aforesaid FIR even after recalling the order and rehearing the petition under section 482 of CrPC. 7. Apart the aforesaid, it is not a case in which the opportunity of hearing was not extended by the court to the applicants, as the engaged counsel of the applicants was very well present, the case diary was also available before the Court and the instructed and engaged counsel himself has pleaded no instruction on behalf of the applicants and also prayed to withdraw from this case and taking such submission on record, such counsel was permitted to withdraw from such case and thereafter with the assistance of the State counsel after perusing the case diary on the basis of the available prima facie circumstances against the applicants with respect of the alleged offences, the impugned order was passed and therefore the same could not be recalled by allowing this petition merely on the ground that technically the petition was also dismissed for want of prosecution after making the observation on merits. 8. So far as the case laws cited on behalf of the applicants are concerned, in the matter of Kushalbhai Ratanbhai Rohit and others v. State of Gujarat, decided in SLP (Cr.) No.453/2014, vide dated 6th May 2014, it is apparent that such case was decided by the apex Court taking into consideration the earlier reported decision of the Supreme Court in the matter of Surendra Singh and others v. State of U.P., reported in AIR 1954 SC 194 , according to which unless the judgment is delivered with the signatures of all the judges of the Court, the same could not be treated to be a judgment because till last moment the concerned Judge has a right to change his view till delivery of the judgment or order but that is not the situation in the case at hand. In the present case the order was dictated in open Court with the consent and agreement of both the Judges and the same was delivered in open Court and on the same day it was signed and therefore such decision of the apex Court is not helping to the applicants. 9. As far as the case law in the matter of Giridharilal v. Pratap Rai Mehta, reported in ILR1989 Kar. 2491, is concerned, the same was decided in different situation in which the concerning affected party was not even extended the opportunity of hearing while in the present matter, as stated above, the applicants were represented through duly engaged counsel in the earlier Miscellaneous Criminal Case No.11698/2014 and such counsel was very well present on such date and he categorically stated before the Court that the applicants are not in his contact since long and in such premises, he has pleaded no instruction and sought the permission to withdraw from the case. In such premises, it could not be assumed or deemed that the opportunity of hearing was never extended to the applicants for hearing the petition, on the contrary it is a case where the ample opportunity was extended to the applicants, inspite of that, due their own negligence, they did not contact their counsel and in such circumstances, no instruction was pleaded by the counsel, inspite that the Court has examined the matter on merits with the assistance of the State Counsel and case diary and thereafter the impugned order was passed. So the same does not require any interference under the inherent power of this Court under section 482 of CrPC when no prejudice is caused to the applicants even on passing the aforesaid order on merits of the case. In such premises, aforesaid cited case is not helping to the applicants. 10. Apart the aforesaid, the case law in the matter of Habu v. State of Rajasthan, a Full Bench decision of the Rajasthan High Court, reported in AIR 1987 Raj. In such premises, aforesaid cited case is not helping to the applicants. 10. Apart the aforesaid, the case law in the matter of Habu v. State of Rajasthan, a Full Bench decision of the Rajasthan High Court, reported in AIR 1987 Raj. 83 , holding that the judgment given in the absence of the appellant or his counsel but decided on merits can be recalled by the court in its inherent power under section 482 of CrPC is also not helping the applicants, in the scenario of the case at hand on the date of passing the impugned order, the applicants were duly represented through the counsel and due to the negligence of the applicants themselves the counsel pleaded no instruction and therefore, it could not be said that the Court has passed the impugned order without extending opportunity of hearing. On the contrary the opportunity was extended on various occasions and when no interest was taken on behalf of the applicants to make the submission, then only the aforesaid impugned order was passed on merits as well as holding that the petition deserves to be dismissed on merits but in view of no instruction pleaded by the counsel of the applicants lastly in formal it was also observed that the petition is dismissed for want of prosecution. 11. If in the aforementioned circumstances, it could not be deemed that the impugned order has been passed without extending opportunity of hearing, then the case law cited on behalf of the applicants in the matter of Vishnu Agarwal v. State of U.P. and another, reported in (2011)14 SCC 813 , is also not helping to the applicants, as the present case is not a case in which opportunity of hearing was not extended to the applicants, but in fact, even after extending the opportunity of hearing to the applicants, they have not availed the same. 12. That apart the aforesaid, some other case laws have also been cited on behalf of the applicants, but in view of the aforesaid discussion, in the available circumstances, the same are not helping to the applicants and to mention each and every citation in this order is not necessary. 13. In view of the aforesaid discussion, we have not found any merit in this petition for recalling the impugned aforesaid order dated 4.2.2015 passed in Miscellaneous Criminal Case No.11698/2014. 13. In view of the aforesaid discussion, we have not found any merit in this petition for recalling the impugned aforesaid order dated 4.2.2015 passed in Miscellaneous Criminal Case No.11698/2014. Consequently, this petition being devoid of any merit deserves to be and is hereby dismissed.