Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.678 of 2012 ====================================================== 1. Nirmaljit Singh Narula @ Nirmal Baba S/O Late S.S Narula R/O 1412- A, Chiranjeev Towers, Nehru Palce, New Delhi- 110019 And Also At E-66, Grater Kailash Part-1, New Delhi Versus .... .... Petitioner/s 1. The State Of Bihar through the Director General of Police, Bihar 2. The Senior Superintendent of Police, District- Ararai 3. Inspector-Cum-Officer-In-Charge, Forbesganj Police Station, District- Araria 4. Rakesh Kumar Singh S/O Phuldev Kumar Singh R/O Behind Power House, Ward No.-9, Forbesganj .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kanhaiya Pd. Singh, Sr. Adv., Mr. Rajesh Ranjan, Mr. Chandra Mohan Jha & Mr. Md. Waliur Rahman, Advocates. : Mr. Pramod Kumar Sinha, AC to AAG-2 For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 4 26-04-2013 Heard Sri Kanhaiya Prasad Singh, learned senior counsel appearing for the petitioner and Mr. Pramod Kumar Sinha, learned AC to AAG-2. 2. Despite valid service of notice upon the respondent no.-4, he has chosen not to appear in the case. 3. The facts germane to this application are that Rakesh Kumar Singh (respondent no.-4) had filed a written information before the Forbesganj Police Station on 21st April, 2012, stating an allegation therein that he is a privately employed person earning a measly sum of Rs.-3,000/- per month and has deep faith in religion. He oftenly used to view Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 2 the programmes of the petitioner on different Television channels, in which the petitioner used to propagate that if a person would give “Dasvand” (10th part of earnings) to the petitioner he would get rid of his sufferings and would have the blessing of the petitioner. Being propelled by his faith in the petitioner he deposited a total sum of Rs.-1,000/ in the publicized Bank Account of Punjab National Bank belonging to the petitioner. He deposited Rs.-300/- on 6th January, 2012, Rs.-400/- on 6th February, 2012 and Rs.-300/- on 4th March, 2012. The informant has alleged that as he failed to reap any financial gains and subsequently, having come to know that the petitioner has been duping several persons all over the country, he found himself cheated. He has also alleged that the petitioner has hurt his religious faith and sentiment. 4. On the basis of the aforesaid written information submitted by the informant, Forbesganj P.S. Case No. 154 of 2012, dated 21st April, 2012, was registered under sections 417 and 420 of the Indian Penal Code and investigation was taken up. 5. Learned senior counsel appearing for the petitioner made the following submissions:- (a) The allegations made in the F.I.R. do not make out any offence and are totally false. The proceedings are maliciously instituted and wholly wanting in bona fide.
Facts
Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 3 (b) The F.I.R. has been instituted in order to harass, humiliate and blackmail the petitioner. (c) The petitioner is a highly revered spiritual guide renowned world over for his spiritual discourses. He regularly conducts congregations termed as “Samagams”, wherein his disciples are led through spiritual guidance to alleviate their personal sufferings. (d) From the F.I.R. it would appear that no promise of financial gain was ever made by the petitioner with fraudulent or dishonest intention which are necessary ingredients for constituting an offence under section 417 and 420 of the Indian Penal Code. (e) The written report is a sheer abuse of the process of the Court, since none of the offence alleged in the complaint are made out even if the averments made in the complaint are accepted in its entirety.
Legal Reasoning
24. It is well settled by now that, if no cognizable offence is disclosed, and still more, if no offence is disclosed, the Police would have no authority to undertake an investigation. 25. In R. P. Kapur Versus State of Punjab, since reported in AIR 1960 (SC) 866, the Apex court while considering the inherent powers of the High Court in quashing the First Information Report under section 561-(A) of the old Code of Criminal Procedure corresponding to section 482 of the new Code of Criminal Procedure made the following observation:- “Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person.” 26. In Madhavrao Jiwajirao Scindia & Others Versus Sambhajirao Chandrojirao Angre, since report in 1988 (1) SCC 692, the Apex Court in paragraph-7 observed as under:- Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 11 whether as made prima “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as uncontroverted to the allegations facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful likely to be served by purpose is allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” 27. The Apex Court in State of Haryana & Others Versus Bhajan Lal & Others, since reported in 1992 Suppl. (1) SCC 335 in paras- 102 and 103 held as under:- “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 Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 12 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 a FIR 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 and continuance of the proceedings and/or where there is a specific institution constitute not the do Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 13 provision in the Code or the providing Act, concerned efficacious the for redress 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. 103. 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 reliability or the genuineness or otherwise of 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.” the to 28. Thus, taking into consideration the allegations made in the First Information Report, the relevant provisions of the Penal Code under which the FIR has been instituted, the rival submissions made on behalf of the parties and the law laid down by the Apex Court for exercising the inherent jurisdiction under Articles 226 and 227 of the Constitution of India, I am of the considered opinion that since no cognizable offence is made out in the facts and circumstances of the present case, allowing the investigation to continue would be an abuse of the process of law. 29. In that view of the matter, the First Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 14 Information Report relating to Forbesganj P.S. Case No.-154 of 2012, is hereby quashed and the respondents are restrained from proceeding with the ongoing investigation of the case. 30. The application stands allowed. P.K./- (Ashwani Kumar Singh, J)
Arguments
6. On the other hand, Mr. Pramod Kumar Sinha, learned AC to AAG-2 made the following submissions:- (a) The allegations made in the F.I.R. do constitute a cognizable offence and thus the same should not be quashed at the threshold. (b) The allegations made in the F.I.R. is neither Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 4 false or frivolous or led with any mala fide intention in order to harass, humiliate or blackmail the petitioner. (c) The allegations made in the F.I.R. have been found to be true in course of investigation. The petitioner had dishonest intention of cheating by promising and propagating healing of sufferings and blessing which were not true. The informant had deposited Rs.1,000/- in the Bank Account which was controlled by the petitioner and as such the beneficiary of the fraud played upon the informant was the petitioner. 7. Taking into the consideration, the rival submissions made on behalf of the parties, it is to be seen by this Court, as to whether, the un-controverted allegations made in the F.I.R. do constitute any cognizable offence or not. 8. In this context, it would relevant to quote sections 417 and 420 of the Indian Penal Code under which the F.I.R. has been instituted and which read as under:- for Punishment cheating- “417. Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 420. Cheating and dishonestly inducing delivery of property- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 5 singed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”. 9. From a bare reading of the two provisions of the Penal Code quoted hereinabove, it would appear that simple cheating is punishable under section 417 of the Indian Penal Code, but where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of the person deceiving such cheating would be punishable under section 420 of the Indian Penal Code. 10. In an offence punishable under section 420 of the Indian Penal Code, it must be proved that the person deceived parted with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the outset. It would be relevant to mention here that for constituting an offence punishable either under section 417 or under section 420 of the Indian Penal Code „cheating‟ is an essential ingredient. 11. The word „cheating‟ has been defined under section 415 of the Indian Penal Code which reads as under :- “415. Cheating-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person or any shall intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or property, retain Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 6 omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. 12. The offence of cheating as defined under section 415 of the Indian Penal Code requires:- (1) Deception of any person, (2) (a) Fraudulently or dishonestly inducing that person- (i) (ii) To deliver any property to any person; or To consent that any person shall retain any property; or (b) Intentionally inducing that person to do or omit to do anything which he would not do or omit, if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 13. In the definition of cheating, there are set forth two classes of acts which the person deceived may be induced to do. In the first place, he may be induced fraudulently or dishonestly to deliver any property to any person or to consent that any person shall retain any property. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceive would not do or omit to do, if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 7 of acts, the inducing must be intentional but not fraudulent or dishonest. 14. The word „dishonestly‟ has been defined under section 24 of the Indian Penal Code which reads as under:- “24. Dishonestly- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”. 15. From the definition of the word „dishonestly‟, it would appear that the term „dishonestly‟ is not used in the Penal Code in its popular significance. It has been defined in section 24 I.P.C. to mean deliberate intention to cause wrongful gain or wrongful loss; and when with such intention, deception is practiced and delivery of property is induced, then the offence under section 420 I.P.C. can be said to have been committed. 16. The term wrongful gain and wrongful loss have been defined under section 23 of the Indian Penal Code which reads as under:- “23. gain- “wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful “Wrongful loss”- Wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled.” 17. The word wrongful means prejudicially affecting a party in some legal right. For either wrongful loss or gain, the property must be lost to the owner, or the owner must Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 8 be wrongfully kept out of it. 18. The term „fraudulently‟ has been defined under section 25 of the Indian Penal Code which reads as under:- “25. Fraudulently - A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.” 19. It is well settled that deceit is not an ingredient of the definition of the word „dishonestly‟ while it is an important ingredient of the definition of the word „fraudulently‟. 20. Taking into consideration the relevant provisions of the Indian Penal Code, it has to be seen from the allegations as to whether the ingredients of the offences alleged are attracted in the facts and circumstances of the present case or not. If the ingredients of the offences would be attracted, the Police would have the statutory right to investigate the case. But, if the ingredients of the offence alleged are not attracted, the prayer of the petitioner for quashing the F.I.R. has to be allowed. 21. From the perusal of the allegations made in the F.I.R., it would appear that the informant deposited Rs.- 1,000/- in three installments in the account controlled by the petitioner after coming to know from programmes aired on various Television channels that, if he pays 10% of his monthly income, he would have blessing of the petitioner and the same Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 9 would mitigate his sufferings. There is no allegation that any promise for monetary gain was ever made and, therefore, the allegation of not receiving any monetary benefit despite payment of Rs.-1,000/- would not constitute any offence as defined under section 417 or 420 of the Indian Penal Code as according to the own saying of the informant, the same was never promised by the petitioner. 22. It is well established principle of law that mere mentioning of the word „cheat‟ and „deceive‟ is not sufficient to make out an offence. In order to make out an offence under section 417 or 420 of the Indian Penal Code, there must be a specific allegation to show that a promise was made with a fraudulent or dishonest intention and the complaint parted with his property acting on a representation which was false to the knowledge of the accused. In the present case there is no allegation that any promise was made to the informant with dishonest or fraudulent intention. The ingredients of promise and dishonest intention which are a sine qua non for an offence of cheating, are entirely lacking in the present case. 23. It would be important to mention here that there is no means by which blessing can be measured. The payments made by the petitioner were voluntary in nature. It is similar to the situation where a devotee offers his donation to a deity or a spiritual Guru. However, if, a person fails to get any monetary benefit after offering donations to a deity or a Patna High Court CR. WJC No.678 of 2012 (4) dt.26-04-2013 10 spiritual Guru, he cannot allege that he has been cheated.