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2019 DIGILAW 1757 (ALL)

Balbir Singh Chandel v. State Of U. P.

2019-07-23

RAJ BEER SINGH, RAMESH SINHA

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JUDGMENT : 1. Heard Sri Sukendu Pal Singh, learned counsel for the petitioner, Sri G.P. Singh, learned A.G.A. for the State-respondents and perused the material on record. 2. This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. Dated 25.06.2019, which has been registered as Crime No. 0201 of 2019, under Sections 13 (1)(b), 13 (2) of Prevention of Corruption Act, Police Station Kakadeo, District Kanpur Nagar. 3. Learned counsel for the petitioner has argued that no offence under Sections 13 (1) (b) and 13 (2) of Prevention of Corruption Act is made out against the petitioner and that impugned FIR is abuse of the process of law. It has been submitted that petitioner has retired from police service on 28.09.2011 and now, he is a practising Advocate and his wife, who is also an Advocate, was running business of transport and a coaching centre. Besides these sources of income, she has also income from her agricultural land but her income from these sources, was not taken into consideration. Similarly, income of the petitioner from agricultural land, was also not taken into consideration. It was further submitted that earlier an inquiry was conducted by Ram Suresh Yadav, Deputy Superintendent of Police, Kanpur Unit of Bhrastachar Nivaran Sangthan but the charges were not proved and inquiry was closed. It has also been submitted that the amount incurred in purchase of immovable property and vehicles was duly explained but those facts have not taken into consideration by the concerned Enquiry Officer and similarly his income tax returns were also not considered in correct perspective. It was pointed out that an inquiry was also conducted by Kanpur Unit of Bhrastachar Nivaran Sangthan and a report has been submitted by the said Unit on 22.02.2014 and perusal of the said report shows that the allegations of disproportionate assets were not proved against the petitioner. Further, there were discrepancy in amount shown towards expenditure and there was also mathematical error in totalling in expenditure head in the FIR. It was stated that perusal of the FIR and material brought on record shows that no such case is made out against the petitioner that assets of petitioner were not in excess than of his income and thus, the impugned FIR is illegal and mala fide and thus, liable to be quashed. It was stated that perusal of the FIR and material brought on record shows that no such case is made out against the petitioner that assets of petitioner were not in excess than of his income and thus, the impugned FIR is illegal and mala fide and thus, liable to be quashed. 4. Learned A.G.A. has submitted that there are clear allegations against the petitioner that the petitioner has incurred an amount of Rs. 97, 51, 731/- in various expenditures, which was more Rs. 35,86,552/- than his source of income and that a prima facie under Sections 13 (1) (b) and 13 (2) of Prevention of Corruption Act is made out against the petitioner. At this stage, disputed questions of fact cannot be examined and merely it is to be seen whether a prima facie case is made out against the petitioner or not. It was argued that no case for quashing of the impugned FIR is made out and the petition filed by the petitioner is liable to be dismissed. 5. The legal position on the issue of quashing of FIR or criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if 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, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C. In the well celebrated judgment reported in State of Haryana and others Vs. Ch. Bhajan Lal,1992 AIR(SC) 605 Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. Guidelines are as follows: (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 to do not prima facie constitute any offence or make out a case against the accused. Guidelines are as follows: (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 to 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 156(2) of the Code. (3) Where the un-controverted 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 every 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." 6. (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." 6. The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P., 2006 56 AllCriC 433 reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P., 2000 CrLJ 569 after considering the various decisions including State of Haryana v. Bhajan Lal, 1992 AIR(SC) 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case. 7. In the case of R. Kalyani v. Janak C. Mehta and Others, 2009 1 SCC 516 , the Hon'ble Apex Court has held as under: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." 8. Keeping in view the above stated settled position of law, in the instant case, perusal of the record shows that there are allegations against the petitioner in the FIR that on the basis of inquires, it has been found that petitioner had incurred an amount of Rs. 97,51,731/- under various heads of expenditure during relevant time, which was in excess of Rs. 35,86,552/- than his source of income and that petitioner has failed to furnish any satisfactory reply in that regard. 97,51,731/- under various heads of expenditure during relevant time, which was in excess of Rs. 35,86,552/- than his source of income and that petitioner has failed to furnish any satisfactory reply in that regard. In the FIR, details of various transactions of sale and purchase etc. have been given. The FIR was lodged after a detailed inquiry. It is apparent from the FIR and material on record that a prima facie cognizable offence under Sections 13 (1) (b) and 13 (2) of Prevention of Corruption Act is made out against the petitioner. The case of the petitioner does not fall in any of the category enumerated by the Apex Court through various judicial pronouncements for quashing of the FIR. 9. It is well settled that at this stage, this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. 10. As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of FIR or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In the judgments of Rupan Deol Bajaj v. K.P.S. Gill, 1995 SCC(Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi, 1999 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors, 2000 SCC(Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Article 226 of the Constitution of India. 11. The submissions raised by learned counsel for the petitioners call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted in this case. The perusal of the record makes out, prima facie, offences at this stage and there appears to be sufficient ground for investigation in the case. Here it would be pertinent to mention that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. (vide State of Orissa v. Saroj Kumar Sahoo, 2005 13 SCC 540 ). 12. In view of the aforesaid, considering the allegations made in the FIR and material brought on record, it cannot be said that no prima facie is made out against the petitioner rather there appears to be sufficient ground for investigation in the matter. Accordingly, we do not find any justification to quash the impugned F.I.R. 13. The petition lacks substance and thus, writ petition is, accordingly, dismissed.