Vimal Kumar Yadav vs State of Madhya Pradesh And Others

Heard on the question of admission through Video Conferencing This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s) :

i. That, the impugned FIR dated 3-6-2020 (Ann.P/1) may kindly be quashed.

ii. That, impugned orders dated 5-6-2020 (Ann. P./2 and P/3) may kindly be quashed.

iii. That, other relief which may deem fit may also be granted.

Before adverting to the facts of the case, it would be necessary to mention one fact. Annexure P/1 is the F.I.R. which has been registered against the petitioner, whereas order dated 5-6-2020 (Annexure P/2) is an order by which the petitioner has been placed under suspension and order dated 5-6-2020 (Annexure P/3) is an order by which the charge of the Society has been given to one Shri Raghunandan Shrivastava. At the very beginning of the arguments, a query was put by this Court, as to how a single writ petition against two different cause of actions is maintainable? In reply, it was submitted by the Counsel for the Petitioner, that since, the suspension of the petitioner is the consequence of the F.I.R., which has been registered against him, therefore, he may be permitted to pursue the writ petition with all the reliefs sought by him. However, it is submitted that his primary arguments would be against the F.I.R.

Accordingly, the petitioner is heard on the question of admission.

It  is  submitted  by  the  Counsel  for  the  petitioner,  that  an inspection was carried out on 2-6-2020 and on the basis of the said inspection, the impugned F.I.R. has been lodged, whereas by order dated 27-4-2020, the petitioner was given the charge of Pohari and Bhatnavar branch of the Society.   Thereafter by order dated 22-5-2020 (Annexure P/6), it was observed by the Administrator, Primary Krishi Sakh Sahkari Sanstha Maryadit, Pohari that by giving the charge  of  two  different  branches  to  one  person  would  cause inconvenience specifically when, one person in spare is available therefore, one Dinesh Verma, Salesman was given the charge of Bhatnavar Branch and thus on 2-6-2020 when the inspection of Bhatnavar Branch was carried out, the petitioner was not in charge of the said branch and thus, the F.I.R. has been lodged on incorrect facts.  Further, the petitioner has been implicated on the basis of the confessional statement made under Section 27 of Evidence Act. It is further submitted that since, the petitioner has been placed under suspension on account of registration of F.I.R., therefore, the order dated 5-6-2020 (Annexure P/2) is also bad and the suspension order of the petitioner is liable to be quashed.

Heard the learned Counsel for the Petitioner.

The Supreme Court in the case of  State v. N.S. Gnaneswaran, reported in (2013) 3 SCC 594 has held as under :

The High Court has not recorded the finding that if the contents of the FIR registered against the respondent are taken on its face value, they do not disclose the cognizable offence and thus, the FIR was liable to be quashed. Rather it has been quashed merely on technical ground that the copy of the said FIR after being lodged had not been given to the informant. The judgment impugned herein is required to be examined as to whether giving the copy of the FIR to the informant is mandatory and if not what is the prejudice caused to the respondent-accused as the informant has not raised the grievance of non-supply of the copy of the FIR nor has it been the case of the respondent that he sought the copy of the FIR and was not given.

The issue also requires to be examined on the touchstone of doctrine of prejudice. Thus, unless in a given situation, the aggrieved makes out a case of prejudice or injustice, some infraction of law would not vitiate the order/enquiry/result. In judging a question of prejudice, the court must act with a broad vision and look to the substance and not to technicalities. (Vide: Jankinath Sarangi v. State of Orissa , State of U.P. v. Shatrughan Lal, State of A.P. v. Thakkidiram Reddy and Debotosh Pal Choudhury v. Punjab National Bank.)

The Supreme Court in the case of Shakson Belthissor v. State of Kerala, reported in (2009) 14 SCC 466 has held as under :

The scope and power of quashing a first information report and charge-sheet under Section 482 CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge-sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive. A number of decisions have been rendered by this Court on the aforesaid issue wherein the law relating to quashing of a complaint has been succinctly laid down.

"5. ... In Nagawwa v. Veeranna Shivalingappa Konjalgi it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations [made] in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of the Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5)

'(1 ) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.'

In Drugs Inspector v. Dr. B.K. Krishnaiah it was held by this Court that: (SCC p. 455, para 5)

"5. In a quashing proceeding, the High Court has to see whether the allegations made in the complaint petition, if proved, make out a prima facie offence and that the accused has prima facie committed the offence."

In the said decision this Court refused the prayer for quashing of the complaint on the ground that there were sufficient allegations in the complaint to make out a case that the accused persons were responsible for the management and conduct of the firm and, therefore, the extent of their liability could be and should be established during trial.

In MCD v. Ram Kishan Rohtagi it was held that when on the allegation made in the complaint, a clear case was made out against all the respondents (the accused persons), the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.

In MCD this Court observed as follows in para

8: (SCC p. 5)

"8. Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Nagawwa v. Veeranna Shivalingappa Konjalgi where the scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC p. 741, para 5 : SCC (Cri) pp. 511-12]

'5. ... Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.' "

The Supreme Court in the case of V. Ravi Kumar v. State, reported in (2019) 14 SCC 568 has held as under :

Exercise of the inherent power of the High Court under Section 482 of the Criminal Procedure Code would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court under Section 482 CrPC.

Power under Section 482 CrPC might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.

Where the accused seeks quashing of the FIR, invoking inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. Reference may be made to the decision of this Court, inter alia, in State of Punjab v. Subhash Kumar and Janata Dal v. H.S. Chowdhary.

The Supreme Court in the case of CBI v. Arvind Khanna, reported in (2019) 10 SCC 686, has held as under :

After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.

The Supreme Court in the case of State of Punjab v. Dharam Singh, reported in 1987 Supp SCC 89, has held as under :

The High Court has, however, not confined its scrutiny to the averments contained in the first information report but has traversed beyond and examined the case in the light of the contentions put forth by the respondents in their petition under Section 482 CrPC. By indulgence in such exercise the High Court has come to the conclusion that the second respondent Cooperative Society cannot be termed a dealer of the alleged adulterated fertilizer distributed to its members because there was no sale involved in the transaction, that for the same reason the second respondent Society was not bound to obtain a Registration Certificate for selling fertilizer and furthermore the alleged sale of adulterated fertilizer was itself open to serious doubt because of conflicting analysis reports issued by the Chemical Analyst regarding the fertilizer and hence the emergent position is that the first information report does not disclose the commission of cognizable offences. Thus what the High Court has done is to go far beyond the contents of the first information report and enter into a discussion on the merits of the case before the investigating agency had conducted investigation and collected evidence.

It is the claim of the petitioner, that the charge of the Bhatnavar Branch was already given to one Dinesh Verma, therefore, the FIR has been wrongly lodged. Whether the goods found in the branch belong to the petitioner, or whether the order dated 22-5-2020 was actually executed or not, are various disputed questions of facts which cannot be gone into by this Court, at this very early stage.

This  Court  while  exercising  its  powers  under  Article  227  of Constitution of India or under Section 482 of Cr.PC., cannot embark upon a factual enquiry. This Court cannot stifle the legitimate prosecution.

The Supreme Court in the case of Amit Kapoor Vs. Ramesh Chander reported in (2012) 9 SCC 460 has held as under :

This further raises a question as to the wrongs which become actionable in accordance with law. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. In Indian Oil Corpn. v. NEPC India Ltd. this Court took the similar view and upheld the order of the High Court declining to quash the criminal proceedings because a civil contract between the parties was pending.

The Supreme Court in the case of N. Soundaram v. P.K. Pounraj, reported in (2014) 10 SCC 616, has held as under :

It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD v. Ram Kishan Rohtagi.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora.]

Accordingly, this Court is of the considered opinion, that the F.I.R. lodged against the petitioner cannot be quashed unless and until, the entire material/evidence is collected by the investigating agency.

So far as the order dated 5-6-2020 (Annexure P/2) by which the petitioner has been placed under suspension is concerned, it is the stand of the petitioner, that the said order is merely a consequential order. Since, this Court has declined to interfere with the F.I.R. lodged against the petitioner, therefore, no case is made out for entertaining the writ petition against the order of suspension. If the petitioner is so advised, then he is given the liberty to challenge the same in departmental appeal.

With aforesaid observations, the petition is Dismissed in limine.