CHINDHYA vs GANPATI (DIED) LRS JAYA BAI

The applicant has invoked the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (for brevity the '' Cr.P.C '') for quashing the First Information Report (FIR) dated 17.09.2016 registered at Crime No. 654/2016 at Police Station Morar, District Gwalior for the offences punishable under Sections 399, 400, 402 of IPC read with Section 11/13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam (for short ''MPDVPK Act'') and Section 25 / 27 of the Arms Act and also for quashing of the subsequent charge sheet filed before the Court of Special Judge, MPDVPK Act, Gwalior.

Brief facts of the case are that on 17.09.2016, Station House Officer, Morar Gwalior went for a visit along with his sub-ordinate staff at Mohanpura Police Chowki. From 300 meters away from the chowki, on hearing some noise, a search was made by him by distributing the police staff in two parts. It was heard by him that some persons were sitting there and they were planning to commit docoitiy on petrol pump situated at Kishanpura. Police party reached there and caught hold three persons from the spot, but other two persons by taking the advantage of dark night fled from the spot. The Police arrested Virendra, Pappu and Monu. On the information of arrested persons, Police party came to know the names of Vipul Gupta and Ballu @ Balveer, the persons who had been fled from the spot.

On the basis of aforestated facts, an FIR has been registered by the Police at crime No. 654/2016 for the aforesaid offences and after completion of investigation, charge-sheet has been filed.

The contentions which have been canvassed by learned counsel for the applicant is that he has been falsely implicated in the present case. As per the FIR itself, the name of the applicant has been disclosed by the person who have been arrested from the spot. Since the year 1998 to year 2016, a list of antecedent of the applicant has been alleged but except present case which has been registered in the year 2016, no other case is pending against the present applicant. He has already been acquitted in all the remaining cases. All the cases have been registered against the applicant due to political and business rivalry. Applicant is working as liquor contractor and he is also doing the business of real estate. He is an income tax payee. The applicant belongs to a reputed family. His son is in service in Singapur and daughter is taking her studies of B.Tech from IIT Jodhpur, Rajasthan. As per the phootage of CCTV camera, on the day of incident he was in a shop which is situated at Gole ka Mandir Gwalior. The applicant is the member of Jiwaji Club Gwalior which is a reputed club and its membership fees is Rs. 10 lakh per member, therefore, it cannot be said that at any point of time such cheap offence could be committed by applicant. Therefore, he prayed that the offence registered by the police is per-se illegal and deserves to be quashed.

Per contra, learned counsel for the respondent/State submitted that registration of the FIR is on account of actual incident and prima facie the allegation leveled against the applicant are made out, therefore, the application deserves to be dismissed.

I have considered the rival contentions raised on behalf of the parties and have perused the document placed on record along with the present application.

The parameters on which the indulgence can be shown for exercising powers available under Section 482 of Cr.P.C have been laid down in the judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal v. Devi Polymers (P) Ltd ., (2016) 6 SCC 310, wherein the Hon''ble Court observed in the following manner :-

"15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , this Court observed as follows: (SCC p. 695, para 7)

"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 8. In the context of the law laid down by the Apex Court, after the plain reading of the First Information Report, it is evident that the applicant was not apprehended from the place of incident and he has been arrested merely on the basis of the memorandum executed by the co-accused persons namely Veerendra, Pappu and Monu under Section 27 of the Evidence Act. It is also clear from the perusal of the record that, when the Police party conducted the raid, it was very late in the night with near to zero visibility which is the reason by the members of the Police party could not identify the present applicant. The respondent has not pointed out any material except the memorandum of co-accused persons which

may hint at the involvement of present applicant for the commission of offence. At this juncture, the respondents admitted to demonstrate the involvement of the applicant by inviting the attention of this court to the criminal antecedent of the applicant which reflects that there are 17 criminal cases registered against the applicant. In the considered opinion of this Court, the criminal antecedent of the applicant is to be examined from the point of view that these matters were registered against the applicant during the period between the year 1998 to the year 2007, and since then, there is no other matter registered against the applicant, rather the applicant is engaged in real estate business and is regular income tax payee for the income over ten lakh per year. The criminal cases registered against the applicant have culminated into acquittal.

The cumulative consideration of these circumstances clearly demonstrates that the trial cannot be permitted to be held against the applicant on the basis of inadmissible evidence i.e. memorandum of co-accused persons recorded under Section 27 of the Evidence Act. Besides that, the allegation against the applicant are lifeless and not supported by any cogent material, it may not be termed adequate even for framing of charges against the applicant. While recording this observation, the court has taken note of the submission advanced by the respondent about registration of the 17 criminal cases against the applicant. While dealing with the submission, the court cannot swayed away from the

fact that, all these matters have resulted in acquittal and it is well established preposition of law that any person cannot be subjected to trial on the basis of his antecedent when the case in hand has no life in it with respect to the applicant.

Under these circumstances, if the entire evidence collected by the prosecution is considered and if no rebutted evidence is adduced, the applicant cannot be convicted for the offence for which he has been charged. It is the case of no evidence against the applicant and therefore, the present application is allowed and the FIR lodged against the applicant dated 17.09.2016 registered at Crime No. 654/2016, Police Station Morar, District Gwalior under Sections 399, 400, 402 of IPC read with Section 11/13 of MPDVPK, Act and Section 25 / 27 of the Arms Act, is hereby quashed. Consequently, the subsequent charge sheet filed by the Police before the concerned Court against the applicant is hereby quashed, so far as it relates to the present applicant.

Copy of this order be sent to the trial Court to drop the proceeding against the applicant.