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2016 DIGILAW 860 (ALL)

Rama Kant v. Superintendent of Police, Distt. Hardoi

2016-03-08

ADITYA NATH MITTAL, AJAI LAMBA

body2016
JUDGMENT Ajai Lamba and Aditya Nath Mittal, JJ. -- The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report lodged as Case Crime No.0530 of 2015, under Sections 420, 467, 468 471 & 409 Indian Penal Code and Section 3/7 of Essential Commodities Act, Police Station-Kasimpur, District-Hardoi (Annexure No.1). 2. Short affidavit has been filed in Court on behalf of the Prosecuting Agency alongwith the evidences collected in the course of investigation. The affidavit is taken on record. 3. In the affidavit, in paras- 6 to 8, the following stand has been taken on behalf of the Prosecuting Agency: - "6. That during the course of investigation, statement of first informant, Yogendra Kumar, Supply Inspector, Sandeela, Hardoi, statement of the complainant, Ram Das, (Ex-Pradhan) and of few Card Holders, namely, Juddhi, Kushal, Heeralal, Bachey Lal and Chatra Pal were recorded under Section 161 Cr.P.C. wherein it was stated that the petitioner who was the Fair Price Shop Dealer of village-Kakainduwa, Police Station-Kasimpur, District-Hardoi used to forge the Ration Card and Distribution Register by making wrong entries of distributing Rice, Wheat, Sugar and Kerosene Oil to the BPL, Antyodaya and APL Card Holders. The copies of the statements of first informant, complainant and few Card Holders recorded under Section 161 Cr.P.C. are annexed herewith as Annexure No.CA-1 to CA-7. 7. That further it is stated that the petitioner use to sell the Essential Commodities beyond their prescribed prices and used to measure them less to its original weight. Apart from this the petitioner had given an application to the Sub-Divisional Magistrate, Sandeela, Hardoi on which a forged seal of Police Station-Kasimpur has been affixed. During the course of investigation, it was found that no such seal was affixed by the concerned police station. The statement of the concerned Constable Clerk who was posted on the said date was recorded under Section 161 Cr.P.C. A typed copy of the statement of the concerned Constable Clerk is annexed herewith as Annexure No.CA-8. 8. That, it is relevant to mention that about 27 Card Holders have given their affidavits to the Department of Food and Civil Supplies, U.P., Lucknow with the allegations that the petitioner has forcefully taken away their Ration Cards and is not returning back. The copies of the 27 affidavits and details of the missing Ration Cards are annexed herewith as Annexure No.CA-9 to CA-36. The copies of the 27 affidavits and details of the missing Ration Cards are annexed herewith as Annexure No.CA-9 to CA-36. Apart from this 15 Card Holders have also stated in their affidavits that they have not received the ration for the last 3 months." 4. Contention of learned counsel for the petitioner is that a simple case under Essential Commodities Act is sought to be converted into a case of cheating and forgery. 5. We have considered the contention of learned counsel for the petitioner and learned counsel appearing for the Prosecuting Agency. 6. From the above extracted paragraphs of the counter affidavit, it has prima-facie become evident that petitioner was a Fair Price Shop Dealer and used to forge Ration Cards and would make fabricated entries in Distribution Register. It has further been made prima-facie evident that the petitioner has given an application to Sub-Divisional Magistrate, Sandila, District-Hardoi, on which, a forged seal of police-station-Kasimpur was affixed. As many as 27 Card Holders have given their affidavits with the allegation that the petitioner forcibly took their Ration Cards and is not returning them. 7. Considering the serious nature of allegations, we find no reason to entertain this petition for issuing a writ in the nature of certiorari so as to quash impugned criminal proceedings. We are satisfied that prima-facie offence has been committed and call for no interference in the investigation process. Investigation is still going on. It is for the Investigation Agency to draw conclusions on the basis of evidence collected in the course of investigation. 8. Learned counsel further contends that Section 409 Indian Penal Code has been invoked without any material available on record. The petitioner is aggrieved because Section 409 Indian Penal Code provides higher sentence as compared to other provisions of Indian Penal Code invoked by the Investigating Agency. 9. We have considered this contention of the learned counsel also. 10. We are considering a petition for issuance of a writ in the nature of certiorari for quashing the impugned proceedings, as a whole, in terms of judgment rendered by the Hon'ble Supreme Court of India in State of Haryana and others vs. Bhajan Lal and other; 1991 (28) ACC 111 (SC)= AIR 1992 SC 604 . In that regard, we hereby extract paragraph 108 and the sub paras, which have detailed the scope of quashing proceedings. In that regard, we hereby extract paragraph 108 and the sub paras, which have detailed the scope of quashing proceedings. The said para reads as under : - "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 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 F.I.R. 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 F.I.R. 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. 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 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." (Emphasised by us) 11. Although the above given categories are not exhaustive, however, considering the stand of the Investigating Agency, that has already come on record through the extracted paragraphs from the counter affidavit, we do not find that the case of the petitioner is one, in which extraordinary writ jurisdiction can be invoked. Sufficient evidence has come on record to indicate commission of offence. 12. So far as contention of learned counsel for the petitioner for removal/deleting/ quashing proposed offence under Section 409 Indian Penal Code is concerned, this is not a trial court that is considering addition or deleting a particular charge. As per the Code of Criminal Procedure whenever a police report/charge-sheet is filed in court, the petitioner would have the right to challenge invoking particular provisions of Penal Laws at appropriate stage of proceedings and more particularly at the stage of charge. At that stage, the petitioner would have the right to refer to all the evidences that have come on record alongwith the charge-sheet and question invoking of particular provisions. In case, a particular charge is not altered or removed, the petitioner would have the right to file a revision petition or at a later stage, if so advised a petition under Section 482 Cr.P.C. 13. In case, a particular charge is not altered or removed, the petitioner would have the right to file a revision petition or at a later stage, if so advised a petition under Section 482 Cr.P.C. 13. So far as scope of considering the case of the petitioner, as pleaded in the petition is concerned, this Court is ordinarily not required to go into the nitty gritty and details of every provisions of Indian Penal Code and its ingredients to record that particular provisions of Indian Penal Code may be invoked but a particular provision be not invoked. That is not the scope of a writ in the nature of certiorari filed for quashing of the First Information Report. 14. We find no merit in contention of learned counsel for the petitioner for quashing of one provision i.e. 409 Indian Penal Code from the First Information Report. 15. Dismissed.