Virender Singh And Others vs State Of H.P. And Another

Rakesh Kainthla, Judge

The petitioner has filed the present petition for quashing of FIR No. 05 of 2021, dated 19.01.2021, registered at Police Station Kupvi, District Shimla, H.P, for the commission of offences punishable under Section 39 (1)(a) of H.P. Excise Act, 2011 and Section 171E read with Section 34 of Indian Penal Code (in short ‘IPC’) and the consequential proceedings arising out of the FIR.

It has been asserted that the petitioners were falsely implicated in the FIR at the instance of the informant/respondent No. 2. The dispute involves the Panchayat election. The allegations in the FIR appear to be highly concocted and imaginary. The accused were not even present in the vehicle. The petitioners were major. They could possess two bottles each with a capacity of 750 ML each as per the prosecution. The quantity of bottles recovered from the vehicle if divided amongst 05 petitioners would be less than two bottles and no offence is made out against the petitioners. The allegations in the FIR even if accepted to be correct do not constitute the commission of an offence. Hence, it was prayed that the present petition be allowed and the FIR be ordered to be quashed.

The petition is opposed by filing a status report asserting that the informant made a complaint to the police stating that he was contesting the elections as a Pradhan of Gram Panchayat Dhotali. Krishan Chand informed the informant on 18.01.2021 at 09:54 pm that Virender Sharma, a rival candidate for the post of Pradhan was moving in his vehicle with his four friends and it appeared that he was distributing liquor to influence the voters. He argued with Krishan, Jagat Ram and Ravi Dutt. The vehicle was taken toward Dhotali. The informant sent Rohit, Deep Ram etc. and asked them to stop the vehicle. They attempted to stop the vehicle, however, the driver sped towards Bhalu. Krishan Chand, Ravi Dutt, Jagat Ram, Devender Govind etc. followed the vehicle. The driver stopped the vehicle at a distance of one kilometre from Dhotali. The occupants ran away from the spot. The vehicle had a carton containing Country made liquor and one mobile phone. The carton contained six bottles of country made liquor bearing the mark Sirmaur Orange and the words “for sale in Himachal Pradesh”. The police registered the FIR and seized the liquor. The police arrested the petitioners. The bottles were sent for analysis and as per the report, each bottle contained 47.56% proof alcohol. The police prepared a challan and filed it in the Court of learned Judicial Magistrate, First Class (JMFC) Chopal, which was listed for 06.03.2024 for further orders.

I have heard Mr Sarthak Mehta, learned counsel for the petitioners, Ms Ayushi Negi, learned Deputy Advocate General, for respondent No.1/State and M/s Anubhav Chopra & Bhairav Gupta, learned counsel for respondent No.2/informant.

Mr. Sarthak Mehta, learned counsel for the petitioners submitted that the petitioners are innocent and they were falsely implicated. The FIR was lodged against the petitioners due to the political vendetta. The contents of the FIR even if taken to be correct do not constitute the commission of any offence. The police recovered six bottles as per the status report. Five persons were sitting in the vehicle. Each person can possess two bottles and five petitioners could have possessed 10 bottles. The recovery of six bottles does not constitute any offence. There is no evidence that the petitioners had attempted to influence any person by distributing the liquor. Therefore, he prayed that the present petition be allowed and the FIR be ordered to be quashed. He relied upon the judgments of Kapil Agarwal and others vs. Sanjay Sharma and ors in Cr. Appeal No. 142 of 2021 decided on 01.03.2021, Gulam Mustafa versus State of Karnataka, 2023 SCC Online SC 603, Salib @ Shalu @ Salim vs. State of UP and ors. in Cr. Appeal No. 2344 of 2023 decided on 08.08.2023, Geeta Mehrotra vs. State of UP and anr. in Cr. Appeal No. 1674 of 2012 decided on 17.10.2012, Avijeet Saluja vs. State of NCT of Delhi, 2022 Live Law (Del) 167 and Abhilasha Sharma and others vs. State of H.P and ors, in Cr.MMO No. 965 of 2022 decided on 02.01.2024 in support of his submission.

Ms. Ayushi Negi, learned Deputy Advocate General for respondent No.1/State submitted that it is impermissible to divide the bottles amongst the occupants of the vehicle. The FIR cannot be quashed on this ground alone. The informant specifically stated that the petitioners were distributing the liquor amongst the voters to influence their voting; hence, the ingredients of Section 171E of IPC were duly satisfied. Therefore, she prayed that the present petition be dismissed.

Mr. Anubhav Chopra, learned counsel for respondent No.2/informant adopted the submissions made by Ms. Ayushi Negi, learned Deputy Advocate General and submitted that as per the status report, the charge sheet has been filed. Learned Trial Court is seized of the matter and this Court should not exercise the extraordinary jurisdiction under Section 482 of Cr.P.C. at this stage; hence, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The law regarding the exercise of jurisdiction under Section 482 of Cr.P.C. was considered by the Hon’ble Supreme Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed: -

The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC 736: 2006 INSC 4521 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:

“12. The principles relating to the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC  (Cri) 234], State  of  Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence.

(v.) A given set of facts may make out : (a) purely a civil wrong; (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

Similar is the judgment Maneesha Yadav v. State of U.P., 2024 SCC OnLine SC 643, wherein it was held: -

We may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335: 1990 INSC 363:

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) 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.

(4) Where the allegations in the FIR 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 under Section 155(2) of the Code.

(5) Where the allegations made in the FIR 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.

(6) 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.

(7) 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 spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

It was submitted that the status report shows that

the police had recovered six bottles of country made liquor from the vehicle. A person can possess two bottles each of country made liquor having a capacity of 750 ml as per the notification issued by the State Government; therefore, the quantity of liquor recovered from the vehicle if divided amongst the five petitioners would be less than the limit of retail sale and the petitioners cannot be held liable. He relied upon the judgment of the Delhi High Court in Avijeet Saluja (supra). This submission is only stated to be rejected. This Court held in Veena Devi and Ors. vs. State of Himachal Pradesh (24.08.2020 - HPHC):MANU/HP/0728/2020 that it is impermissible to divide the quantity amongst the accused. It was observed:

“The plea taken by learned Counsel for the petitioners that the quantity of recovered contraband has to be equally divided between two petitioners itself cuts out petitioners' case of not possessing the contraband. The contraband was allegedly recovered from one bag held by two petitioners between their feet. Petitioners occupying seat Nos. 37 and 38 in the bus are real sisters. There was no separate recovery of contraband in question from the individual petitioners.

A full Bench of the Hon'ble High Court of Punjab and Haryana in Bhupinder Singh Alias Bhinda vs. State of Punjab, reported in MANU/PH/1084/2004: 2005(1) RCR (Cri.) 168 discussed the question whether, where recovery of narcotic substance is effected from more than one person, it would be open to them to assert while seeking bail that the quantity recovered be divided equally between them for determining whether the quantity recovered can be termed a small, less than commercial or commercial quantity and after discussing the whole law concluded in para-8 as follows:-

"Looked from any angle, we find it difficult to support the view that at the stage of bail, it would be permissible for the Court to accept the request of the applicant that the recovery of a narcotic substance jointly effected from him and his co-accused should be divided equally amongst them for determining whether the quantity recovered was small, less than commercial or commercial and the question of bail should be considered in the light of such a division unless such a plea is taken by him at the time of the framing of the charge, which would necessarily involve an admission on the part of the applicant and his co-accused of the factum of recovery."

According to the prosecution, the instant was a case of joint possession of contraband by the petitioners/real sisters. The contention of learned Counsel for the petitioners for dividing the recovered contraband between the two petitioners is not tenable at this stage and is rejected.”

Therefore, the submission that the number of bottles has to be divided amongst the five petitioners and if so divided, the petitioners had not violated the terms of the notification is not acceptable.

As per the status report, the police had recovered six bottles and prima facie, a case of the commission of an offence punishable under Section 39 (1) (a) of the H.P. Excise Act is made out against the petitioners.

It was submitted that there was a political rivalry and a false FIR was lodged. Hence, the FIR should be quashed due to the political rivalry. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Ramveer Upadhyay v. State of U.P., 2022 SCC OnLine SC 484, that a complaint cannot be quashed because it was initiated due to political rivalry. It was observed:

“30. The fact that the complaint may have been initiated by reason of political vendetta is not in itself grounds for quashing the criminal proceedings, as observed by Bhagwati, CJ in Sheonandan Paswan v. State of Bihar (1987) 1 SCC 2884. It is a well-established proposition of law that a criminal prosecution if otherwise justified and based upon adequate evidence, does not become vitiated on account of mala fides or political vendetta of the first informant or complainant. Though the view of Bhagwati, CJ in Sheonandan Paswan (supra) was the minority view, there was no difference of opinion with regard to this finding. To quote Krishna Iyer, J., in State of Punjab v. Gurdial Singh (1980) 2 SCC 471, “If the use of power is of the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.”

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In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such a possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute an offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In the exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No. 19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C.”

Reliance  was  placed  upon  the  judgment  of  the Hon’ble Supreme Court in Gulam Mustafa (supra) but in the cited judgment, the Hon’ble Supreme Court found that a purely civil dispute was converted into criminal proceedings regarding which, a civil suit was also pending. Hence, the FIR was quashed. In the present case, there is no civil dispute and the allegations are regarding the possession of the liquor in violation of the provisions of the Excise Act and the distribution of the liquor amongst the voters to influence their voting, thus, the cited judgment does not apply to the present case.

Reliance was also placed upon Salib @ Shalu @ Salim (supra); however, this judgment will also not help the petitioners because the Hon’ble Supreme Court held in Para 25 that the entire case put up by the informant appeared to be concocted, which is not the case here and the cited judgment does not apply to the present case.

In Geeta Mehrotra & Abhilasha (supra), the Hon’ble Supreme Court dealt with the quashing of FIR for the commission of an offence punishable under Section 498A of IPC and does not apply to the present case. Therefore, no advantage can be derived from the judgments cited by the petitioners.

It was specifically stated petitioners were distributing the liquor in the FIR that the to influence the voters. These allegations, prima facie, satisfy the requirement of Section 171E of the IPC.

It was submitted that the police had failed to collect any evidence to support these allegations, however, the FIR cannot be quashed on the ground that sufficient evidence has not been collected to prove the allegations. It was laid down by the Hon’ble Supreme Court in State of Maharashtra v. Salman Salim Khan, (2004) 1 SCC 525: 2004 SCC (Cri) 337: 2003 SCC OnLine SC 1424 that the Court exercising jurisdiction under Section 482 of CrPC cannot go into the sufficiency of the evidence. It was observed:

“12. We are of the opinion that though it is open to a High Court entertaining a petition under Section 482 of the Code to quash charges framed by the trial court, the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, sufficiency and acceptability of the material produced at the time of framing of charge can be done only at the stage of trial. By relying upon the decisions of the Apex Court, most of which were with reference to appeals arising out of convictions, we think the High Court was not justified in this case in giving a finding as to the non-existence of material to frame a charge for an offence punishable under Section 304 Part II IPC, therefore, so far as the finding given by the High Court is concerned, we are satisfied that it is too premature a finding and ought not to have been given at this stage. At the same time, we are also in agreement with the arguments of the learned counsel for the respondents that even the Sessions Court ought not to have expressed its views in such certain terms which indicates that the Sessions Court had taken a final decision in regard to the material to establish a charge punishable under Section 304 Part II IPC.

Therefore, we think it appropriate that the findings in regard to the sufficiency or otherwise of the material to frame a charge punishable under Section 304 Part II IPC of both the courts below should be set aside and it should be left to be decided by the court trying the offence to alter or modify any such charge at an appropriate stage based on material produced by way of evidence.”

It was submitted that allegations in the FIR are inherently improbable. It is difficult to believe that the petitioners would have left the car open/unlocked with liquor in it. These allegations appeared to be false and the FIR should be quashed. This submission cannot be accepted. The Court exercising jurisdiction under Section 482 of Cr.P.C. cannot conduct a mini-trial to go into the truthfulness or otherwise of the allegations. It is a matter of trial to be seen by the learned Trial Court. It was laid down by the Hon’ble Supreme Court in Priyanka Jaiswal vs. State of Jharkhand, 2024 SCC OnLine SC 685 that  the  Court  exercises  extra-ordinary  jurisdiction  under Section 482 of Cr.P.C. and cannot conduct a mini-trial or enter into an appreciation of an evidence of a particular case. It was observed:-

“13. We say so for reasons more than one. This Court in catena of Judgments has consistently held that at the time of examining the prayer for quashing of the criminal proceedings, the court exercising extra-ordinary jurisdiction can neither undertake to conduct a mini-trial nor enter into appreciation of evidence of a particular case. The correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution and any such misadventure by the Courts resulting in proceedings being quashed would be set aside. This Court in the case of Akhil Sharda 2022 SCC OnLine SC 820 held to the following effect:

“28. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in the exercise of powers under Section 482 Cr. P.C., it appears that the High Court has virtually conducted a mini-trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr. P.C. As observed and held by this Court in a catena of decisions no mini-trial can be conducted by the High Court in the exercise of powers under Section 482 Cr. P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr. P.C., the High Court cannot get into appreciation of evidence of the particular case being considered.”

A similar view was taken in Maneesha Yadav v. State of U.P., 2024 SCC OnLine SC 643 wherein it was held that: -

“13. As has already been observed hereinabove, the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint at the stage of quashing of the proceedings under Section 482 Cr. P.C. However, the allegations made in the FIR/complaint, if taken at its face value, must disclose the commission of an offence and make out a case against the accused. At the cost of repetition, in the present case, the allegations made in the FIR/complaint even if taken at its face value, do not disclose the commission of an offence or make out a case against the accused. We are of the considered view that the present case would fall under Category-3 of the categories enumerated by this Court in the case of Bhajan Lal (supra).

We may gainfully refer to the observations of this Court in the case of Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home(2019) 11 SCC 706: 2018 INSC 1060:

“14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge sheet is filed, the petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23]. In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23], this Court while deciding the question of whether the High Court could entertain the Section 482 petition for quashing of FIR when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed : (SCC p. 63, para 16)

“16. Thus, the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge [Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.”

Hence, it is not permissible for the Court to go into the truthfulness or otherwise of the allegations made in the complaint.

The allegations in the FIR show that the informant had sent some persons to apprehend the petitioners, who followed the vehicle of the petitioners. Therefore, the petitioners were compelled to leave their vehicle to save themselves; hence, the allegations cannot be said to be improbable justifying the quashing of the FIR.

A charge sheet has been filed before the Court. The learned Trial Court is seized of the matter. It was laid down by the Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC 734: 2023 SCC OnLine SC 949 that when the charge sheet has been filed, learned Trial Court should be left to appreciate the same. It was observed:

“At the same time, we also take notice of the fact that the investigation has been completed and charge-sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence particularly in the absence of any specific date, time, etc. of the alleged offences, we are of the view that the appellants should prefer a discharge application before the trial court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and the charge sheet is ready to be filed before the competent court. In such circumstances, the trial court should be allowed to look into the materials which the investigating officer might have collected forming part of the charge sheet. If any such discharge application is filed, the trial court shall look into the materials and take a call whether any discharge case is made out or not.”

The allegations in the FIR constitute the commission of cognizable offences and it is impermissible to quash the FIR in the exercise of the inherent jurisdiction of the Court.

Consequently, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.