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Madhya Pradesh High Court · body

2016 DIGILAW 674 (MP)

Santram v. State of M. P.

2016-08-09

S.A.DHARMADHIKARI

body2016
JUDGMENT 1. This petition under section 482 of Code of Criminal Procedure, 1973 has been filed by the petitioners being aggrieved with the order dated 20.01.2016 (Annexure P-1) passed by Additional Sessions Judge, Datia in Criminal Revision No. 66/2015, whereby, the order dated 21.8.2015 (Annexure P-2) passed by the learned Chief Judicial Magistrate, Datia in Criminal Case No.1017/2015 has been affirmed. The petitioners have further prayed that they may be discharged from the offences leveled against them. 2. Briefly stated facts giving rise to filing of this present petition are that on 20.6.2015 the police got information that the truck bearing registration No.UP93/E-9147 was carrying liquor without having any valid license/ permission. As per prosecution case, when the truck was searched, it was found that there were total 11988 bottles of silver whiskey amounting to approximately Rs.38 lacs which was being transported, therefore, the case under section 34(2) of M.P. Excise Act, 1915 (herein after referred to as ‘Excise Act’) was registered against the petitioners. While registering the case, the petitioners had informed the concerned police officer that they have a valid licence/permission issued by the office of Excise Department, Gwalior for transporting the liquor. Instead of making enquiry with regard to validity and genuineness of the license from the District Excise Officer, the police authorities without conducting any investigation filed the charge-sheet against the petitioners under section 34(2) of Excise Act. After completion of due investigation, charge-sheet was filed before the competent Court. 3. Learned Chief Judicial Magistrate framed charges against the petitioners under section 34(2) of Excise Act. Again, at the time of framing of charges, petitioners produced the license/permission, but the same was not considered. 4. Aggrieved by the order dated 21.8.2015 (Annexure P-2) passed by learned Chief Judicial Magistrate, Datia in criminal case No.1017/2015, the petitioners preferred a criminal revision bearing No.66/2015. Vide order dated 20.1.2016 (Annexure P-1), the revision was allowed and the order passed by the learned Chief Judicial Magistrate was affirmed. 5. The learned counsel for the petitioner, Shri S.K. Shrivastava submitted that the petitioners have been deliberately implicated in the matter inspite of the fact that they were transporting liquor under a valid licence, the FIR was lodged. Subsequently, after completion of investigation, charge-sheet was filed before the competent Court. Charges were also framed under section 34 (2) of the Excise Act. Subsequently, after completion of investigation, charge-sheet was filed before the competent Court. Charges were also framed under section 34 (2) of the Excise Act. The police is not having jurisdiction to register the case under section 34(2) of Excise Act. The revisional Court without going through the provisions of law and without appreciating the facts and the mischief played by the police authorities, confirmed the order framing charges. 6. The learned counsel for the petitioner further contended that the evidence which they produced (A valid Licence issued by the Excise Department) is sufficient to rule out, reject and discard the accusation leveled by the prosecution, without the necessity of recording evidence. In the factual backdrop, the proceedings needs to be quashed and the petitioners are liable to be discharged from the offences leveled against them. 7. The learned counsel for the respondents has supported the impugned order and submitted that no error has been committed by the trial Court. He further contended that if the impugned orders are set aside and the petitioners are discharged, it would have far reaching consequences inasmuch as it would negate the prosecution/complainant’s case without allowing them to lead evidence, therefore, this Court may not like to exercise inherent jurisdiction under section 482 of the Code of Criminal Procedure before commencement of the actual trial. 8. I have heard learned counsel for the parties and perused the record. 9. This Court before entertaining the petition had directed the respondent-State to get the licence and the permit verified (produced by the petitioners) from the competent authority and submit the verification report. The report was submitted in which it has been categorically stated that no objection certificate No.N/GWAL/FWH/FL/2015/55221 dated 16.6.2015 has been issued and on the basis of which a transport permit was granted to the petitioners for the purpose of transporting Indian Made Foreign Liquor (IMFL) vide T.P. No.T/GWAL/FWH/2015-16/16892 dated 18.6.2015. The said permit and licence was found to be valid on the date of incident. 10. The learned Judicial Magistrate First Class vide order dated 21.8.2015 framed the charges and posted the matter for recording evidence of prosecution witness. The learned Revisional Court affirmed the order of learned Judicial Magistrate First Class on the ground that when the police authorities demanded for the papers i.e. licence and the permit, it was stated that the documents are not available. The learned Revisional Court affirmed the order of learned Judicial Magistrate First Class on the ground that when the police authorities demanded for the papers i.e. licence and the permit, it was stated that the documents are not available. The record reveals that there has been overwriting on the dates mentioned as 18.6.2015 and those do not bear the counter signatures, therefore, the Court below has rightly framed the charges under section 34(2) of the Excise Act. 11. The Hon’ble Supreme Court in the matter of State of Haryana and others v. Ch. Bhajan Lal and others, reported in AIR 1992 SCC 604 , has held that the High Court may in exercise of powers under Article 226 or under section 482 of CrPC may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases : 1. where the allegations made in the first information report or 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 a case against the accused; 2. where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code; 3. where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; 4. where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code; 5. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; 6. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; 6. where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; 7. where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 12. The supreme Court in the matter of Rukmini Narvekar v. Vijaya Satardekar, reported in (2008)14 SCC 1 , has held that : “It is well settled that a judgment of the Court has not to be treated as Elucid’s formula. While it is true that ordinarily defence material cannot be looked into by the Court while framing of the charge in view of Debendra Nath Padhi case, [ (2005)1 SCC 568 ], there may be some very rare and exceptional cases where some defence material when shown to the trial Court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. It cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.” 13. The Supreme Court in the matter of Rajiv Thapar and others v. Madanlal Kapoor [2013(2) MPLJ (Cri.) 1], has exhaustively dealt with the power vested in the High Court under section 482 of the Criminal Procedure Code with regard to quashing the prosecution against the accused before commencement of trial. The Supreme Court in the matter of Rajiv Thapar and others v. Madanlal Kapoor [2013(2) MPLJ (Cri.) 1], has exhaustively dealt with the power vested in the High Court under section 482 of the Criminal Procedure Code with regard to quashing the prosecution against the accused before commencement of trial. To invoke the inherent jurisdiction, this Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that the defence is based on sound, reasonable and indubitable facts. The material produced is such as would clearly reject and overrule the veracity of the allegations. Further it should be sufficient to rule out, reject and discard the accusations levelled by the prosecution without the necessity of recording any evidence. For this, the material relied upon by the defence should not have been refuted, or alternatively being material of sterling and impeccable quality. In such situation, the judicial conscience of the High Court would persuade it to exercise its power under section 482 of CrPC to quash such criminal proceedings, which would prevent abuse of process of the Court, and secure the ends of justice. 14. The Hon’ble Supreme Court in para 23 of the judgment delivered in the case of Rajiv Thapar (supra), has laid down the steps to determine the veracity of a prayer for quashing by invoking the power vested in the High Court under section 482 of CrPC : “23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 of the Criminal Procedure Code : (i) step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is sterling and impeccable quality? (ii) step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused i.e. material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, and would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant? (iv) step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of Justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under section 482 of the Criminal Procedure Code. Such exercise of power, besides doing justice to the accused, would save precious Court time, which would otherwise be wasted in holding such trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.” 15. On critical analysis of the facts and circumstances of the case, it is as clear as a day light that the petitioner having produced the valid license permit to transport the IMFL goes beyond doubt that would lead to the conclusion that the defence is based on sound, reasonable and indubitable facts. 16. The material relied upon by the accused, particularly when the same has not been refuted by the prosecution, but in fact the same is admitted by filing an additional reply clearly goes to show that the material is sufficient to reject and overrule the factual assertions contained in the complaint. 17. In view of the fact and circumstances mentioned hereinabove, this Court is of the considered opinion that the facts of the present case fully satisfy the conditions/steps laid down in the case of Bhajanlal (supra), as well as Rajiv Thapar (supra), in the affirmative on the basis of material relied by the accused more particularly the same was got verified and report having been placed on record. 18. In the result, order dated 20.1.2016 (Annexure P-1) passed by learned Additional Sessions Judge, Datia and order dated 21.8.2015 (Annexure P-2) passed by learned Chief Judicial Magistrate, Datia are hereby quashed and the petitioner is acquitted of all the charges. As a consequence, the proceedings pending before the Chief Judicial Magistrate, Datia in Criminal Case No. 1017/2015 are also hereby quashed. 19. No order as to costs.