Naresh Rawat vs State Of Madhya Pradesh

This petition under Section 482 of the Code of Criminal Procedure has been preferred by the applicant praying for quashment of FIR registered at

Crime No.0154/2019 by Police Station Pohari, District Shivpuri for the offence punishable under Section 34(2) of Excise Act and added Sections

3/181, 5/180, 39/192/1, 146/196 of Motor Vehicles Act.

The facts leading to filing of present petition are that the petitioner is owner of the hotel namely Rawat Hotel at Pohari, District Shivpuri. The said

hotel is situated near Police Station Pohari and police persons used to come and eat food in the hotel without payment. When the petitioner asks to pay

the bill, the police persons of Police Station Pohari threaten the petitioner, therefore the petitioner denied to offer the food without payment, upon

which police persons felt annoyed against the petitioner and with a view to take revenge, the police persons came at the hotel and requested the son of

the petitioner for dropping them at Police Station. The petitioner's son dropped the police persons at the Police Station through his vehicle No. M.P.

33-C-5012. When the petitioner's son did not return, the petitioner reached the Police Station. The police persons demanded Rupees One Lac and on

failure to fulfill their demand, they threatened to register a case under Section 34(2) of Excise Act. The petitioner denied to fulfill the illegal demand;

therefore, a case under Section 34(2) of Excise Act and under Sections 3/181, 5/180, 39/192/1 and 146/196 of Motor Vehicles Act has been registered

against the son of the petitioner and his vehicle has also been seized.

Learned counsel for the petitioner submitted that the petitioner's son has not committed any offence. The hotel of the petitioner is situated near

Police Station Pohari where the police persons come and eat the food without any payment. Upon refusal by the petitioner to give the food without

payment, the false FIR has been lodged against the petitioner's son, against which, the petitioner made a complaint to Superintendent of Police,

Shivpuri on 14/06/2019 but no action was taken against the erring incumbents. Hence, learned counsel for the petitioner prays for quashing of the FIR

registered against the petitioner's son.

On the the contrary, learned Public Prosecutor for the State opposed the submissions and prayed for dismissal of petition.

Heard learned counsel for the parties and perused the available record.

In Amit kapoor Vs. Ramesh Chander and Anr. (2012) 8 SCC 460, the Hon. Apex Court has observed as under:-

27.1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution

is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of

Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2 The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents

submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no

prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may

interfere.

27.3 The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case

would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error

that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to

throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of CrPC or any specific law in force to the very initiation or

institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute

the offender.

27.7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and

constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the court may be

justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record

to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily

with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to

injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the

investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not

mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external

materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The

court has to consider the record and documents annexed with by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court

should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to

marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2)CrPC, suffers from fundamental legal defects, the Court may be well within its

jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that interest of

justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for

administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) are to be taken into consideration as precepts

to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual

foundation for an offence has been laid down, the Court should be reluctant and should not hasten to quash the proceedings even on the

premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the

requirements of the offence.â€​

It has been held by the Hon'ble Apex Court in the case of State of Haryana and others Vs. CH. Bhaiyalal [AIR 1992 SC 604 ]that when

allegations in complaint clearly constitute cognizable offence, then quashing of FIR is not justified. Similarly, in the case of State of Orissa and another

vs. Saroj Kumar Sahoo [(2006) 2 SCC 272,] it has been observed that inherent powers are to be exercised sparingly and that too in the rarest of rare

cases and the High Courts should not embark upon an inquiry as to reliability of evidence to sustain the allegations, which is the function of the trial

Court.

Truthfulness or falsehood of allegations made by the complainant in his complaint is to be established by evidence to be produced before the trial

Court and only looking to the FIR it cannot be inferred that prima facie no case is made out against the present applicant. Therefore, in the case in

hand, there is no question of invoking inherent powers vested in this Court under Section 482 of Cr.P.C. for quashing of FIR.

In the present case, it is apparent that the FIR was registered on 11/06/2019 at 12:41 A.M. Petitioner has submitted that he had made a complaint

to Superintendent of Police, Shivpuri. The complaint (Annexure-P/4) was sent on 14/06/2019, i.e. after registration of FIR. It appears that for getting

rid of the legal proceedings in compliance of registration of FIR dated 11/06/2019, aforesaid complaint (Annexure-P/4) and thereafter Annexure-P/7

were sent to the Superintendent of Police, Shivpuri.

In view of the above annunciation of law and looking to the offences charged against the petitioner's son, I am of the view that no ground is made

out for quashing the FIR. The petition under Section 482 of Cr.P.C. sans substance and is hereby dismissed being devoid of merit.