Kamaljeet Singh vs State and Others

J.P. Singh, J.—S. Kamaljit Singh has filed this petition to seek quashing of FIR No. 144/2005 registered at Police station Bahu Fort, Jammu

against him under Sections 406/409 of Ranbir Penal Code Samvat 1989.

The petitioner says that the complainant of the 3rd respondent did not suggest the commission of any cognizable offence and that it had been

registered by the Police Station because of the money power of the complainant.

The 3rd respondent has not filed objections to this petition. State-Respondents though justifying the registration of the FIR, have stated in their

objections that the investigation in the case was in progress and the police agency had asked for some documents from the complainant which

were still awaited. According to the respondents the conclusion of the investigation alone would indicate as to whether or not any case had been

made out against the petitioner.

I have heard learned Counsel for the parties and perused the complaint of the 3rd respondent.

Before dealing with the submissions of the learned Counsel for the parties, perusal of the complaint of 3rd respondent on which the SHO Police

Station Bahu Fort, Jammu had registered an FIR, may be necessary. The complaint reads thus:

..To the SHO Transport Nagar Narwal Jammu Dt: 6.9.05. Dear sir, some time in the past we received information that certain stock of spare

parts was being misappropriated from our store at Narwal. This information was passed on to us by certain taxi drivers of Srinagar/Jammu. During

the investigation carried out by us has come to light that certain spare items from the invoice were not taken into stock. This system regulated in

keeping the management in dark and when ever random physical check was taken, the stock was found to be OK. It has also been noted that it

was only fast moving item which were deliberately not entered into the stock. Our preliminary enquiry and on the basis of information of some taxi

drivers we have come to the conclusion that S. Kamaljeet Singh S/o Darshan Singh behind Sant Ashram near Govt. Middle School Digiana is main

culprit of misappropriation of stock. We request you to please take notice of this and -instruct the concerned police station to register our F.I.R....

Perusal of the complaint indicates that some complaints of misappropriation of spare parts from the store at Narwal, Jammu, based on the

information of some Taxi drivers of Srinagar/Jammu had been received by the complainant, the 3rd respondent, who had learnt on enquiry that S.

Kamaljit Singh was the main culprit of misappropriation of stocks.

The complaint thus does not contain such facts or information which may indicate commission of a cognizable offence. Mere allegation that S.

Kamaljit Singh was the main culprit of misappropriation of stocks would not, in my opinion, constitute offence, either u/s 406 or u/s 409 of the

Ranbir Penal Code.

Section 154 of the Code of Criminal Procedure Samvat 1989 contemplates registration of an FIR when an Officer Incharge of a Police Station

receives information relating to the commission of a cognizable offence.

Information contemplated by the section may be, any source of communication, but it must contain such material, be it oral or written or

otherwise, which would attract the ingredients of one or the other cognizable offence/s. The information, in nutshell, therefore, must spell out the

ingredients of one or the other cognizable offence/s.

Rather than furnishing requisite information, as aforesaid, indicating the ingredients of cognizable offence/s, the 3rd respondent had only

reflected his own conclusion, on the basis of some preliminary enquiry which was not produced before the Officer Incharge of the Police Station,

that the petitioner was the main culprit of misappropriation of stocks. The information of the 3rd respondent was thus much short of requisite

details which would indicate the commission of a cognizable offence.

An FIR for commission of an offence punishable u/s 406 or 409 of the Ranbir Penal Code could be registered by an officer Incharge of a

Police Station only if he had received the requisite information indicating that a person accused of the commission of such offence/s was in any

manner entrusted with the property or had any dominion over the property, and had dishonestly misappropriated or converted to his own use that

property or dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust was Jo be

discharged or had violated any legal contract express or implied touching the discharge of such trust or had willfully suffered any other person so to

do. The sine-qua-non for attracting the penal provisions of Section 406 and 409 of the Ranbir Penal Code is, the dishonest misappropriation of

property entrusted to the person accused of these offences. Mere allegation that the petitioner was the culprit of misappropriation of stock would

not satisfy the requirement of law. There is no allegation in the complaint of the 3rd respondent that any property was entrusted to the petitioner

which he had dishonestly misappropriated or converted to his own use.

The complaint lodged by 3rd respondent thus does not furnish requisite factual details which would indicate the ingredients which would

constitute offence/s punishable u/s 406/409 of the Ranbir Penal Code.

Mr. Slathia, learned Additional Advocate General, submitted that the case of the petitioner was not covered by the categories of cases noticed

by the Hon'ble Supreme Court of India in State of Haryana and others Vs. Ch. Bhajan Lal and others, . In order to deal with the submissions of

Shri Salathia, I would like to reproduce the categories of cases noticed by Hon'ble Supreme Court of India where the High Court may exercise its

jurisdiction to quash the criminal proceedings. The categories of these cases are as follow:

""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.

Where the allegations made 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 u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

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.

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 u/s 155(2) of the Code.

Where the allegations made in the F.I.R 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.

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.

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 spire him due to private and personal grudge.

I am of the view that the case of the petitioner is covered by the first category as the allegations made in the complaint and FIR, even if they are

taken at the face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. Necessary

ingredients of the offence, u/s 406 and 409 of the Ranbir Penal Code i.e. entrustment and the dishonest misappropriation are missing in the

complaint. The State-respondents have not produced any material or records on the basis whereof it could be said that the investigation carried out

so far indicates the commission of offence either u/s 406 or u/s 409 of the Ranbir Penal Code. Shri Salathia was repeatedly asked as to whether

there was any document or other evidence on records which would prove, even prima-facie the ingredients of offence under Sections 406/409 of

Ranbir Penal Code, he however, could not produce any such evidence or document. According to Shri Slathia, the complainant had been

approached several times to produce the record, but those records had not so far been produced before the Investigating Agency.

I, therefore, do not find any merit in the submissions of Shri Salathia that the case of the petitioner was riot covered by State of Haryana v.

Bhajan Lal (supra).

For all what has been said above, I am of the opinion that registration of FIR No. 144/2005 by Police Station, Bahu Fort, Jammu under

Sections 406/409 of the Ranbir Penal Code against the petitioner and continuance of investigation therein is an abuse of the process of law. I

would, therefore, while allowing this petition, quash FIR No. 144/2005 registered under Sections 406/409 of Ranbir Penal Code by Police

Station, Bahu Fort, Jammu.