Mukesh Rai vs State of M.P. and Another

N.K. Gupta, J.—The applicant has challenged the registration of Crime No. 384/2010 registered at Police Station Bag Sevaniya, Bhopal for the offences punishable under Sections 419, 420, 467, 468 and 471 of IPC. The facts of the case in short are that, the applicant was working as a president of S.B. Police Grih Nirman Sahkari Sanstha, Bhopal. On 17.11.2011, one Sudhakar Pandey was in-charge officer appointed in place of the applicant. On 6.7.2012, one Pramod Rai had succeeded Sudhkar Pandey. However, the applicant continued to sell the various pieces of land to the consumers. Initially, one case for various offences of M.P. Co-operative Society Act (in short ''the Special Act'') was registered at Police Station T.T. Nagar, Bhopal. After sometime, a case under Sections 419, 420, 467, 468 and 471 of IPC was also registered against the applicant at Police Station Bag Sevaniya, Bhopal with an FIR lodged by the Deputy Commissioner Co-operative Department.

I have heard the learned counsel for the parties.

Learned counsel for the applicant has submitted that the applicant was a president of the concerned co-operative society and an order relating to his ouster was not legal. At the most, some offences of the Special Act could constitute against the applicant. Initially, a show cause notice was given by the Deputy Registrar Co-operative Society, Bhopal to proceed with a complaint for various offences of the Special Act. Thereafter, the successor of the applicant sent an application to the S.H.O. T.T. Nagar, Bhopal and an opinion was obtained from the District Prosecution Officer, Bhopal. Vide a letter dated 17.3.2013 (Annexure-A/6), the District Prosecution Officer, Bhopal gave his report that only the offence of the M.P. Special Act were made out against the applicant. Thereafter, a second report was sent to the S.H.O. Bag Sevaniya, Bhopal and it was also submitted as a complaint filed by the applicant to the S.P. Bhopal that no double prosecution can be done against him. Under such circumstances, it is submitted that after considering the opinion of the District Prosecution Officer etc., no alleged offences are made out against the applicant and therefore, the crime registered against him at Police Station Bag Sevaniya, Bhopal may be quashed. In support of his contention, the learned counsel for the applicant has placed his reliance upon the order dated 1.3.2013 passed by the Single Bench of this Court in the Case of Awdhesh Raghuvanshi Vs. State of M.P. [M.Cr.C. No. 2356/13].

After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is alleged against the applicant that he was ousted from the post of president of the co-operative society and he had no right to sale the various plots, whereas he sold six plots to the various consumers. The FIR was lodged by the Deputy Commissioner of the co-operative society, after considering the opinion given by the District Prosecution Officer and other persons.

After considering the facts of the case, prima facie, it is apparent that the applicant violated the various provisions of the Special Act and therefore, the offences of the Special Act are constituted against the applicant. However, he sold six plots to the various consumers being a president of the co-operative society, whereas he was not the president of that society and he had no authority to sale those plots. Under such circumstances, prima facie, a cheating has been done by the applicant that he sold those plots by misrepresentation and he obtained a wrongful gain. Therefore, the offences punishable under Sections 419, 420 of IPC are prima facie constituted against the applicant. Since the applicant was not entitled to execute any sale deed however, he has executed those sale deeds therefore, those sale deeds are prima facie appear to be forged documents. Hence, prima facie, the offences punishable under Sections 467, 468 and 471 of IPC are also made out against the applicant.

The learned counsel for the applicant has raised the contention that, if any offence is made out under the Special Act then, no other offences can be constituted because the Special Act is a special enactment and therefore, the provisions of general enactment shall be superseded. The contention raised by the learned counsel for the applicant cannot be accepted at this stage because, if there is a grave offence constituted under any Act then, a smaller offence may be a part of that grave offence. If it is considered that the offences constituted under the Special Act are of the same nature as of the offences under Sections 419, 420, 467, 468 and 471 of IPC then, according to the Provision of Section 221 of the Cr.P.C. the charges shall be framed for the higher or grave offences and it shall be presumed that the charges of other inferior offences are included in the charge of the higher offences. On the other hand, if it is considered that the offences under Sections 419, 420, 467, 468 and 471 of IPC are of different nature then, the offences constituted under the Special Act against the applicant shall be counted as an offence of different nature arose from the same overt act done by the applicant and under such circumstances, when the offences are of different nature, either the trial may be done in any common prosecution or if, it is not possible that the trial may be done in a common case then, two different cases may run simultaneously because nature of crime is different. If a person commits an offence of breach of trust then, the offences committed by him in a year is to be considered in one trial, whereas remaining offences of later period are to be considered in another trial and therefore, it cannot be said that no separate trials can be done against any accused for the different offences arose from the same sets of the incident.

The order passed by the Single Bench of this Court in M.Cr.C. No. 2356/2013 cannot be applied in the present case, because no law has been laid by the Single Bench of this Court. This is an order passed on the basis of the special set of facts of that case. Under such circumstances, where the report given by the District Prosecution Officer is not binding to the investigation officer, it cannot be said that the crime registered against the applicant for the offences punishable under Sections 419, 420, 467, 468, 471 of IPC would not have been registered or the registration of the crime was illegal. Under such circumstances, there is no reason by which the registration of crime may be quashed. There is no basis by which the present petition filed by the applicant can be accepted and consequently, it is hereby dismissed. Copy of the order be sent to the C.J.M. Bhopal, so that it may be provided to the Magistrate, who has a jurisdiction over the Police Station, Bag Sevaniya, Bhopal for information.