Neeraj Goswami vs State of M.P.

D.K. Paliwal, J.—This petition has been preferred u/s 482 of Cr.P.C. for quashing the FIR registered at Crime No. 170/2009 at P.S. Mungawali, Distt. Ashoknagar under Sections 420, 205, 467 and 468 of IPC. Brief facts of the petition are that on 23.4.2009 Addl. CJM, Mungawali has passed an order for giving the Hero Honda motorcycle bearing registration No. MP-42-BA-6383 in the interim custody of owner Yashwant Soni after furnishing Supurdginama alongwith bail of Rs. 50,000/-. In compliance of the said order, Yashwant Soni furnished Supurdginama and bail papers and surety Akhlesh appeared on his behalf alongwith Bhu Adhikar Pustika. On verification by the Court, the surety told his name as Kallu son of Kishanlal. Petitioner Neeraj Goswami, who was an Advocate, had identified Kallu son of Kishanlal Ojha as Akhlesh S/o Kalyan Singh. Hence, learned ACJM sent a complaint to police Station, Mungawali, against Yashwant, Kallu and Neeraj Goswami, upon which Crime No. 170/09 under Sections 420, 205, 467 and 468 of IPC has been registered. After investigation, charge-sheet has been filed before JMFC, Mungawali, from where the case has been committed to the Sessions Judge and the same is pending before the Addl. Sessions Judge, (Fast Track Court), Mungawali in S.T. No. 211/2009 (State of M.P. Vs. Yashwant Soni and others). Being aggrieved, the petitioner has preferred this petition.

It is submitted by learned counsel for the petitioner that petitioner is impleaded in the said criminal case only because he has identified a wrong person Kallu @ Kailash as Akhilesh son of Kalyan, while in fact the petitioner was not having any prior knowledge of the fact that said Kallu @ Kailash is a wrong person and he is giving surety in the name of another person Akhlesh son of Kalyan. It is further submitted that petitioner has agreed to identified the said person on the basis of Bhu Adhikar Pustika over which the photograph of the said person was affixed and below the photograph, his name was mentioned as Akhlesh and also on the basis of affidavit produced by said person which was sworn before Oath Commissioner Shri Anand Kumar Shrivastava. There is no prima facie material on record to constitute the offence against the petitioner under Sections 420, 205, 467 and 468 of IPC. Hence, the continuance of the proceedings of Sessions Trial No. 211/09 (State of M.P. vs. Yaswant Singh & Ors.) under Sections 420, 205, 467 and 468 of IPC in respect of Crime No. 170/09 pending before learned ASJ, (FTC), Mungawali, Ashoknagar, is an abuse of process of law. It is prayed that aforesaid proceedings be quashed.

Learned Panel Lawyer for the respondent/State submits that prima facie the offence punishable under Sections 420, 205, 467 and 468 of IPC are made out against the petitioner. Hence, the proceedings cannot be quashed.

I have considered the rival submissions of learned counsel for the parties.

As per the FIR, the ACJM, Mungawali has passed an order dated 23.4.2009 in Criminal Case No. 135/09 (State vs. Radheshyam) for giving Hero Honda motorcycle bearing registration No. MP-42 BA/6383 on Supurdgi to Yashwant Soni on his furnishing Supurdginama of Rs. 50,000/- with a surety of the like amount. In compliance of the order, Yashwant Soni has submitted his Supurdginama and by producing the Bhu Adhikar Pustika in the name of surety Akhlesh son of Kalyan Singh, bail papers were submitted. While verifying the same, the person appeared in the Court as surety, has told his name as Kallu son of Kishanlal and the petitioner Neeraj Goswami has identified him. Therefore, a complaint has been sent to police Station, Mungawali, against Yashwant, Kallu and Neeraj Goswami, upon which Crime No. 170/09 under Sections 420, 205, 467 and 468 of IPC has been registered.

Learned counsel for the petitioner submits that petitioner has identified the said Kallu as Akhlesh on the basis of information given by Kallu and Yashwant Soni and on the basis of affidavit sworn before Oath Commissioner, namely Shri Anand Kumar Shrivastava, in the ordinary course of his profession, therefore, no case is made out against the petitioner. Reliance has been placed on the decision rendered in Hiralal Jain Vs. Delhi Administration, wherein an advocate was engaged by some persons for identifying them as claimants in an application made on their behalf to claim certain Land-acquisition-compensation amount and the advocate believing the statements of the claimants as true, filed his Vakalatnama agreeing to act on their behalf and there was no evidence to show prior knowledge on the part of the advocate that the claimants were not the real persons entitled to claim the amount and no concert between the former and the latter was brought on record. It was held that there was no prima facie evidence entitling the Magistrate to commit the advocate for offences under Sections 120-B read with 419, 420, 511 and 467 r/w 471 of IPC.

In the instant case, upon the FIR lodged by the ACJM after due investigation, charge-sheet has been submitted and the case has been committed for trial to the Sessions Court. The petitioner has identified Kallu as Akhlesh and kallu has submitted the bail papers before the court for acceptance, therefore, prima facie the petitioner cannot say that there is no prima facie material against him. The defence of the petitioner that he has identified said Kallu as Akhlesh on the basis of Bhu Adhikar Pustika and on the basis of affidavit attested by Oath Commissioner Shri Anand Kumar Shrivastava can not be considered at this stage. The facts of the case law on which reliance is placed by the learned counsel are distinguishable with the instant case.

The Hon''ble Apex Court in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, making reference of the following cases:-

(i) R.P. Kapur Vs. The State of Punjab,

(ii) State of Karnataka Vs. L. Muniswamy and Others,

(iii) Chandrapal Singh and Others Vs. Maharaj Singh and Another,

(iv) Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others,

(v) State of Haryana and others Vs. Ch. Bhajan Lal and others,

(vi) Janata Dal Vs. H.S. Chowdhary and Others,

(vii) G. Sagar Suri and Another Vs. State of U.P. and Others,

(viii) Roy V.D. Vs. State of Kerala,

(ix) Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others,

and

(x) Indian Oil Corporation Vs. NEPC India Ltd. and Others,

has observed in para 23 and 24 as under:-

This court in a number of cases has laid down the scope and ambit of courts powers u/s 482, Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power u/s 482, Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and

(iii) to otherwise secure the ends of justice.

Inherent powers u/s 482, Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.

Taking into consideration that FIR prima facie discloses commission of the offence by the petitioner, no case is made out for exercise of powers u/s 482 of Cr.P.C. at this stage. Consequently the petition is dismissed.