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2019 DIGILAW 385 (UTT)

MANGAL GIRI v. STATE OF UTTARAKHAND

2019-06-28

RAVINDRA MAITHANI

body2019
JUDGMENT Hon'ble Ravindra Maithani, J. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code') has been filed for quashing the chargesheet dated 14.06.2010, summoning order dated 15.06.2010 in Criminal Case No.727 of 2010, State Vs Himanshu Rai and Others, under Sections 420, 406, 506 and 120-B IPC, pending before the learned Chief Judicial Magistrate, Nainital, District Nainital and the entire proceedings arising out from it. 2. Briefly stated, an FIR was lodged on 25.11.2008 by respondent no.2, Harish Pal under Sections 420, 406 and 506 IPC. at Police Station – Tallital, District Nainital. According to it, under a conspiracy with the intention to cheat him on 13.06.2008, the founder and Chairman Himanshu Rai of Aikawa International Education Talla Gathia, Nainital, Ishrat Khan, the Vice-President, K.K. Ikawa, a Japanese citizen, Pilot Baba and their associates Irfan Khan, Vijay Yadav, P.C. Bhandari and Mangal Giri induced him to deliver Rs.67,760/-. The respondent no.2 was ensured that in lieu of running a computer center, he would be paid Rs.50,500/- per month, but thereafter, the assured sum was not paid to respondent no.2 and when demanded, he was threatened. 3. According to the FIR, the petitioner and others cheated other persons also namely Nawab Hussain, Mahendra Singh Majila, Tabassum and others. Investigation was carried out. After investigation, a chargesheet under Sections 420, 406, 506 and 120-B IPC was filed against the petitioner and others. Cognizance was taken and thereafter proceedings of Criminal Case No.727 of 2010, State Vs Himanshu Rai and Others, under Sections 420, 406, 506 and 120-B IPC, was instituted in the court of learned Chief Judicial Magistrate, Nainital, District Nainital. Vide order dated 15.06.2010, petitioners were summoned to answer accusation under Sections 420, 406, 506 and 120-B IPC. This order and the chargesheet are under challenge in this proceedings under Section 482 of the Code. 4. At the very outset, it may be mentioned that Criminal Miscellaneous Application C-482 No.26 of 2011, Kapil Adwetya @ Pilot Baba Vs. State of Uttarakhand, under Section 482 of the Code, was also filed for quashing the same chargesheet by Kapil Adwetya (Pilot Baba), which has been dismissed by this Court. 5. Respondent no.2, despite service, has not appeared. Counter affidavit has been filed on behalf of the State. 6. Heard learned counsel for the parties and perused the records. 7. State of Uttarakhand, under Section 482 of the Code, was also filed for quashing the same chargesheet by Kapil Adwetya (Pilot Baba), which has been dismissed by this Court. 5. Respondent no.2, despite service, has not appeared. Counter affidavit has been filed on behalf of the State. 6. Heard learned counsel for the parties and perused the records. 7. On behalf of the petitioner, it is argued that the petitioner has been summoned to answer accusation under sections 420, 406, 506 and 120-B IPC, but there is no evidence to prove or even to show that any inducement was ever made by the petitioner; any property was delivered to the petitioner at his inducement and also there is no evidence of entrustment, therefore, it is argued that no case, even at prima facie level, has been made out against the 3 petitioner. Learned Senior Counsel appearing on behalf of the petitioner would further argue that a fact that the petition under Section 482 of the Code, filed by Kapil Adwetya (Pilot Baba) has been dismissed, has no bearing in this case, because both are on different footings; there are no specific allegations against the petitioner; general allegations have been levelled, which may not be a basis of putting him to the trial; even receipts have not been given by the petitioner and he is not an office bearer in this society. It is also argued that in his affidavit dated 25.02.2019, Mr. Harish Verma, Superintendant of Police, CBCID has at one stage stated that the co-accused Kapil Adwetya (Pilot Baba) told it to the Investigating Officer that the present petitioner is working as caretaker in the educational society. It is argued that being caretaker cannot fasten the criminal liability and even if it is a confession, it cannot be a basis for trial. Therefore, it is argued that the petition under Section 482 of the Code deserves to be allowed and summoning order deserves to be quashed, so far as it relates to the petitioner. 8. In support of his contention, learned counsel for the petitioner has placed reliance upon the principles of law as laid down in the case of Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and Another, (2019) SCC Online SC 588. Reference has been made to paragraph nos.50, 51 and 52 of the judgment in the case of Dipakbhai (supra), which are as hereunder:- 50. State of Gujarat and Another, (2019) SCC Online SC 588. Reference has been made to paragraph nos.50, 51 and 52 of the judgment in the case of Dipakbhai (supra), which are as hereunder:- 50. If the statement made by the appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani Alias Pappu Kalani (supra) becomes applicable. 51. We also notice the following statement in judgment rendered by Bench of seven learned Judges in Haricharan Kurmi v. Sate of Bihar: “As a result of the provisions contained in S.30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the Court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S.30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. Thus, the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusions deducible from the said evidence. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt." 52. Proceeding on the basis that it is a confession by a co-accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and appellant appears to be proceeded against on his own) and having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of which even a strong suspicion could be aroused, we would find that the mandate of the law requires us to free the appellant from being proceeded against. Accordingly, we allow the appeal and the petition filed under Section 482 of the Cr.PC. The Order impugned passed by the Sessions Judge framing the charge against the appellant 66 will stand set aside and the appellant will stand discharged." 9. On behalf of the State, learned Deputy Advocate General would argue that three specific queries raised by this Court on 07.12.2018 have been adequately replied by an affidavit filed 5 by Mr. Harish Verma, Superintendant of Police, CBCID by his affidavit dated 25.02.2019. Learned Deputy Advocate General would read out from the affidavit of Mr. Harish Verma that petitioner has neither issued any receipt to the first informant or any other person, nor he was office bearer of any of the society. But it is argued that as per the statement of Nawab Hussain and other witnesses, money was taken in the presence of petitioner also. Harish Verma that petitioner has neither issued any receipt to the first informant or any other person, nor he was office bearer of any of the society. But it is argued that as per the statement of Nawab Hussain and other witnesses, money was taken in the presence of petitioner also. Specific reliance has been placed to the statement of Nawab Hussain under Section 161 of the Code, where he has stated that when he reached Jyolikot, he talked to petitioner and other persons and was told by them that money would be returned to him. Learned Deputy Advocate General would further argue that petition of the co-accused under Section 482 of the Code has already been dismissed by this Court. 10. In this case, on 07.12.2018, this Court, interalia passed the following order:- “This is a petition under Section 482 Cr.P.C.. Evaluation of evidence may not be done in these proceedings. But alongwith counter affidavit filed by Shri Om Prakash, Inspector, C.B.C.I.D. Sector Haldwani, District Nainital, the statements of witnesses recorded during investigation have been filed. To appreciate these statements, if some more information is furnished by the respondent State, it will help this Court in deciding this matter. The information may be submitted on the following points within two weeks:- (i) Is there any other material except the statement submitted alongwith counter affidavit of Mr. Om Prakash, Inspector, C.B.C.I.D, Sector Haldwani to indicate as to who, in fact, has received the money? (ii) Whether any receipt was issued, if yes, by whom and when? (iii) What is the status of the petitioner in IKAV International Educational Society, Jeolikot, Nainital? List this matter after two weeks." 11. In response to it, an affidavit has been filed by Mr. Harish Verma and the answer is hereunder:- (i) Eight accused persons are named in the FIR including the petitioner and after completion of investigation a chargesheet has been submitted against seven accused persons including the petitioner before the Court concern and the matter is pending before the Trial Court. Except the statement u/s 161 Cr.P.C. the receipts of the amount collected by the accused persons from the complainant as well as other witnesses are available on record before the Trial Court. (ii) Receipts were also issued to the complainant as well as other witnesses by Himanshu Rai and Ishrat Khan (co-accused) on different date. Except the statement u/s 161 Cr.P.C. the receipts of the amount collected by the accused persons from the complainant as well as other witnesses are available on record before the Trial Court. (ii) Receipts were also issued to the complainant as well as other witnesses by Himanshu Rai and Ishrat Khan (co-accused) on different date. (iii) As per the registered document the petitioner is not a part of that Society, however from the perusal of the statement of co-accused Kapil Udait @ Pilot Baba recorded u/s 161 Cr.P.C., the present petitioner was working as caretaker of the educational society in question under the direction of the said Kapil Udait @ Pilot Baba. A true/correct typed version of statement of co-accused Kapil Udait @ Pilot Baba recorded u/s 161 Cr.P.C. is being annexed herewith and marked as Annexure No.1 to this affidavit." 12. Needless to say, that an interference under Section 482 of the Code may be made in rare circumstances. A trial should not be stopped at the threshold. The question of fact should not be determined and for that purpose, evaluation of evidence should not be done. It should be left to be done at the trial, but at the same time, to a certain extent, the material has to be seen about implication of the petitioner. There have been principles laid down by Hon'ble Supreme Court with regard to exercise of jurisdiction under Section 482 of the Code. Suffice is to refer the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, wherein Hon'ble Supreme Court has laid down the test for exercising the inherent power of the High Court under section 482 of the Code. The Court, interalia, held as hereunder:- “102. Suffice is to refer the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, wherein Hon'ble Supreme Court has laid down the test for exercising the inherent power of the High Court under section 482 of the Code. The Court, interalia, held as hereunder:- “102. 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 extraordinary 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 channelized 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 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. (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." 13. To the extent that, prima facie, case is made out or not, definitely evidence has to be seen and the Court proposes to do so. 14. In the FIR, specifically it is not mentioned that as to whom the money was delivered. It has also not been mentioned that as to who assured return of money. Statement of witnesses namely Harish Pal, Tabbasum, Anurag Majila, Nawab Hussain, Indrajeet Singh and Neha Agarwal, recorded under Section 161 of the Code has been enclosed along with the counter affidavit filed by the State. None of the witnesses has stated that it is the petitioner, who induced them to deliver money. There is general statement including the name of the petitioner that they have cheated. At one stage, witness Nawab Hussain has stated that when he visited Jyolikot, many persons including the petitioner Mangal Giri assured him for the return of money, but this Nawab Hussain has not specifically stated that the petitioner induced to deliver the money or received the money or assured for the return of money as a person in authority. In the case like the instant one when inducement, delivery of property is alleged, general and bald allegations cannot even, prima facie, fasten a person with criminal liability. 15. It is true that petition filed under Section 482 of the Code filed by the co-accused Kapil Adwetya (Pilot Baba) has already been dismissed by this Court. In the case like the instant one when inducement, delivery of property is alleged, general and bald allegations cannot even, prima facie, fasten a person with criminal liability. 15. It is true that petition filed under Section 482 of the Code filed by the co-accused Kapil Adwetya (Pilot Baba) has already been dismissed by this Court. In the counter affidavit filed by the State dated 25.06.2019, two paragraphs have been quoted from the order dated 06.04.2017 of this Court, passed in Criminal Misc. Application C-482 No.26 of 2011, filed by Kapil Adwetya (Pilot Baba), which are hereunder:- “9) The Court was taken through the contents of FIR. From a bare perusal of FIR it is apparent that foundation of criminal offence is laid against the present applicant in the instant case. Criminal proceedings pending against him, therefore, should not be quashed. The jurisdiction under section 482 Cr.P.C. should not be exercised to strifle or scuttle the legitimate prosecution. 10) It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant in the instant case, is unable to pass those tests." 16. This Court is taking discussion further from these paragraphs only. What the Court held in the case of Kapil Adwetya (Pilot Baba) was that a bare perusal of FIR, it is apparent that foundation of criminal offence is laid against the co-accused Kapil Adwetya (Pilot Baba). Paragraph 10 of the judgment dated 06.04.2017 definitely lays down the proposition of law. Kapil Adwetya (Pilot Baba) was the Chairman of the society. The petitioner is nowhere concerned with the society. They are not at the same plank. The case of co-accused Kapil Adwetya (Pilot Baba) is entirely different. Dismissal of the petition under section 482 of the Code filed by Kapil Adwetya (Pilot Baba) has no effect in this proceeding. 17. As stated, in the instant case, there is no specific allegation against the petitioner. It is not stated by any one of the witnesses to the Investigating Officer that the petitioner induced them to deliver money. Dismissal of the petition under section 482 of the Code filed by Kapil Adwetya (Pilot Baba) has no effect in this proceeding. 17. As stated, in the instant case, there is no specific allegation against the petitioner. It is not stated by any one of the witnesses to the Investigating Officer that the petitioner induced them to deliver money. It has also not been stated by anyone that the petitioner issued receipt or in any manner in his any authority assured the returns. In fact, in response to order dated 07.12.2018 of this Court, Mr. Harish Verma from CBCID has in his affidavit dated 25.02.2019 categorically deposed that petitioner has neither issued any receipt, nor he holds any position in the society. What is stated by him is that the co-accused Kapil Adwetya (Pilot Baba) in his statement given to the Investigating Officer named the petitioner as caretaker of the society. This statement has been referred by learned counsel for the petitioner, which is filed along with the affidavit by Mr. Harish Verma. In his statement to the Investigating Officer, Kapil Adwetya (Pilot Baba) has not stated that the petitioner induced anyone to deliver money. Instead, he has categorically stated that the petitioner is not involved in the cheating done by Himanshu Rai and Ishrat Khan. Prima facie, no case is made out against the petitioner. Therefore, it is a case, in which interference under Section 482 of the Code is warranted and the chargesheet as well as the summoning order dated 15.06.2010 in Criminal Case No.727 of 2010, State Vs Himanshu Rai and Others, under Sections 420, 406, 506 and 120-B IPC, pending before the learned Chief Judicial Magistrate, Nainital, District Nainital deserves to be quashed qua the petitioner. 18. Accordingly, the instant petition is allowed. The entire proceedings arising out from Criminal Case No.727 of 2010, State Vs Himanshu Rai and Others, under Sections 420, 406, 506 and 120-B IPC, pending before the learned Chief Judicial Magistrate, Nainital, District Nainital is hereby quashed qua the petitioner.