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2023 DIGILAW 446 (MP)

P. K. Nandi v. State of Madhya Pradesh

2023-04-01

RAVI MALIMATH, VISHAL MISHRA

body2023
ORDER 1. The present petition under Article 226 of the Constitution of India has been filed by the petitioner seeking quashment of the First Information Reports registered by the Economic Offences Wing vide Crime No. 32 of 2015 dated 29.9.2015 for the offence punishable under sections 409, 420, 468, 471 & 120-B of the Indian Penal Code read with sections 13(1)(d) and 13(2) of the Prevention of Corruption Act as well as vide Crime No. 817 of 2019 dated 15.12.2019 for the offence under sections 420, 406 and 34 of the Indian Penal Code. 2. It is the case of the petitioner that he has been elected as a Vice President of the society vide election dated 7.5.2012. The respondent No.5 has also contested the election for the post of President. Being aggrieved by the result of the election, the respondent No.5 filed an election dispute before the Joint Registrar which was transferred to the Court of Deputy Registrar. However, no order could be obtained by the respondent No.5 restraining the newly elected body to function. The respondent No.5 tried to lodge a police complaint before the CSP, MP Nagar, Bhopal alleging certain irregularities in the election of the President. The complaint was examined by the Assistant District Prosecution Officer and a report declining registration of an FIR was submitted to the Superintendent of Police. Thereafter, he lodged a similar complaint with the respondent No.3/Economic Offences Wing, which has taken cognizance in the matter and got registered an FIR against the petitioner at Crime No.32 of 2015 for the offence under sections 409, 420, 468, 471 & 120-B of the Indian Penal Code read with sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. 3 . It is the case of the petitioner that on the same set of facts on which the opinion from the Assistant District Prosecution Officer has already taken and it was opined that no case for registration of an FIR is made out, the Economic Offences Wing has got registered the FIR. Despite lapse of about seven years, no charge-sheet was filed and, therefore, the respondent No.5 preferred a writ petition before this Court being Writ Petition No.8209 of 2016 which was disposed off with a direction to the Chief Secretary to conduct an enquiry and further directing the Economic Offences Wing to complete the investigation within one year. Despite lapse of about seven years, no charge-sheet was filed and, therefore, the respondent No.5 preferred a writ petition before this Court being Writ Petition No.8209 of 2016 which was disposed off with a direction to the Chief Secretary to conduct an enquiry and further directing the Economic Offences Wing to complete the investigation within one year. The enquiry was got conducted by the Chief Secretary and showed its concurrence and satisfaction with the proceedings pending before the cooperative Courts and tribunal. It is his case that despite the fact that no material was found against the petitioner and the Chief Secretary has not given any positive finding against the petitioner, the Deputy Registrar entertained the complaint and directed for an enquiry. Thereafter, the petitioner was found to be in conflict with sections 72(D), 72 B(1)(e) and 72 B(1)(f) of the Madhya Pradesh Cooperative Societies Act, 1960 (hereinafter referred to as ‘the Act of 1960') and sanction for prosecution under section 76 of the Act of 1960 was given resulting into registration of an FIR vide Crime No. 817 of 2019 for the offence under sections 420, 406 and 34 of Indian Penal Code. After more than two and half years, no charge-sheet was filed and the petitioner has been harassed at the hands of the police authorities. It is submitted that there is no material against the petitioner with the police authorities showing his involvement in commission of offence. Therefore, the present petition has been filed seeking quashment of the FIRs. 4 . During the course of the arguments, the learned counsel for the petitioner fairly submits that now a charge-sheet has been filed by the police authorities and the matter is now pending trial before the concerning trial Court. But as registration of an FIR against the petitioner itself is not warranted looking to the facts of the case, therefore, continuing with the trial of the case will be a futile exercise and will amount to gross injustice and harassment to the petitioner at the hands of the respondents. Therefore, he has prayed for quashment of both the FIRs. 5 . Per contra, learned counsel appearing for the Economic Offences Wing has vehemently opposed the contentions and supported the registration of the FIRs. Therefore, he has prayed for quashment of both the FIRs. 5 . Per contra, learned counsel appearing for the Economic Offences Wing has vehemently opposed the contentions and supported the registration of the FIRs. It is submitted that after investigation, the police authorities have already filed a charge-sheet in the matter and the same is not under challenge in the present writ petition. It is further contended that from a bare perusal of the FIRs, the name of the petitioner is clearly reflected and his involvement in commission of offence has also been shown. Interference in criminal cases as far as quashment of FIR is concerned, should be in a rarest of rare cases when there is virtually nothing against the accused/applicant. In the present case, the petitioner’s name is specifically mentioned in the FIR and there are allegations against the petitioner. Only a prima facie case is required to be seen at this stage because the matter is pending investigation before the authorities. The authorities have found some material against the petitioner showing his involvement in commission of offence, therefore, they have chosen to file a charge-sheet, for which, a sanction has already been granted by the State. He has placed reliance upon a judgment of the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp(1) SCC 335 and a judgment recently passed by the Hon’ble Supreme Court in the case of Niharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others reported in 2021 SCC Online 315 wherein certain guidelines have been framed with respect to interference in the criminal cases seeking quashment of the criminal proceedings. Under these circumstances, no case for quashment of the FIRs is made out. He has prayed for dismissal of the writ petition. 6. Heard learned counsels for the parties and perused the record. 7. The sole question for consideration before this Court is as to whether an FIR can be quashed pending investigation or even after filing of a charge-sheet, if there is some material found against the petitioner by the investigating authority. From a perusal of the FIR, it is clearly seen that the name of the petitioner is mentioned in the FIR and the allegations are clearly reflected against the petitioner in the FIR. From a perusal of the FIR, it is clearly seen that the name of the petitioner is mentioned in the FIR and the allegations are clearly reflected against the petitioner in the FIR. The authorities have thoroughly investigated the matter and found involvement of the petitioner in the matter, which is clearly reflected from the report submitted by the authorities. Sanction for prosecution has already been given by the State and, therefore, quashing the entire criminal proceedings including the FIRs is totally unwarranted in the present facts and circumstances of the case. Merely the fact that two FIRs have been registered and for a long time the charge-sheet was not filed by the police authorities, cannot be a ground for quashment of an FIR if involvement of the petitioner is found by the authorities. 8 . The Hon’ble Supreme Court in the case of Niharika Infrastructure Pvt. Ltd. (supra), has framed certain guidelines with respect to interference in the criminal cases seeking quashment of the criminal proceedings. The same reads as under :-- “80. 8 . The Hon’ble Supreme Court in the case of Niharika Infrastructure Pvt. Ltd. (supra), has framed certain guidelines with respect to interference in the criminal cases seeking quashment of the criminal proceedings. The same reads as under :-- “80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or ‘’no coercive steps to be adopted’’ during the investigation or till the final report/charge sheet is filed under section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:-- (i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; (ii) Courts would not thwart any investigation into the cognizable offences; (iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; (iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases (not to be confused with the formation in the context of death penalty); (v) While examining an FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; (vi) Criminal proceedings ought not to be scuttled at the initial stage; (vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; (viii) Ordinarily, the Courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; (ix) The functions of the judiciary and the police are complementary, not overlapping; (x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; (xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the Court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) The power under section 482 Cr.P.C. is very wide, but conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court; (xiv) However, at the same time, the Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; (xv) When a prayer for quashing the FIR is made by the alleged accused and the Court when it exercises the power under section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The Court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the Court has to permit the investigating agency/police to investigate the allegations in the FIR; (xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or no coercive steps to be adopted and the accused should be relegated to apply for anticipatory bail under section 438 Cr.P.C. before the competent Court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or no coercive steps either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under section 173 Cr.P.C., while dismissing/disposing of the quashing petition under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India; (xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order; (xviii) Whenever an interim order is passed by the High Court of no coercive steps to be adopted within the aforesaid parameters, the High Court must clarify what does it mean by no coercive steps to be adopted as the term no coercive steps to be adopted can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 9 . Looking to the entire material placed before this Court and also the judgment passed by the Hon’ble Supreme Court in the case of Niharika Infrastructure Pvt. Ltd. (supra), no interference can be made in the present case. The petitioner’s involvement is clearly reflected in the matter and at this stage only a prima facie case against the petitioner is required to be seen. The petitioner’s involvement is clearly reflected in the matter and at this stage only a prima facie case against the petitioner is required to be seen. All the grounds which have been taken by the petitioner are virtually his defence which could be raised before the trial Court during trial. There is no challenge to the charge-sheet, which has been filed by police authorities. Under these circumstances, this Court refrains from entertaining the writ petition seeking quashment of the FIRs. 10. The writ petition sans merit and is accordingly dismissed. No order as to costs.