Bhupinder Singh v. 1. The State of Jharkhand. 2. Sardar Trilok Singh
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2835 of 2012 Bhupinder Singh ..... … Petitioner Versus 1. The State of Jharkhand. 2. Sardar Trilok Singh -------- ..... … Opposite Parties
Legal Reasoning
“12. … (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 reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of 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 the allegations are absurd and inherently the to cause harm, or where improbable. -4- (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 absolutely necessary for making out the offence. (v)***” 23. A two-Judge Bench of this Court in State of M.P. v. Awadh of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 : 2004 SCC (Cri) 353] made the following observation : (SCC p. 700, para 11) Gupta [State Kishore “11. … the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its the extraordinary proceeding at any stage. … In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code.” 24. This Court in G. Sagar Suri v. State of U.P. [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636 : 2000 SCC (Cri) 513] observed that it jurisdiction of quashing is -5- is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature. 25. This Court has time and again cautioned about converting purely civil disputes into in Indian Oil criminal cases. This Court Corpn. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] noticed the prevalent impression that civil law time consuming and do not remedies are adequately of protect lenders/creditors. The Court further observed that case [Indian Oil : Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , SCC p. 749, para 13) (Indian Oil Corpn. interests the applying “13. … Any effort to settle civil disputes and claims, which do not involve any criminal offence, criminal by and prosecution discouraged.” On these grounds, learned counsel appearing for the petitioner deprecated pressure through should be 5. submits that the entire proceedings against the petitioner may kindly be quashed. 6. On the other hand, Mr. A.K. Das, learned counsel appearing for the O.P. No. 2 submits that the petitioner and the O.P. No. 2 are full brothers, however, in the property in question, the petitioner was not made a partner and he has misutilized the fund, as such, the case is made out against the petitioner. 7. In view of the above submissions of the parties, the court has gone through the contents of the complaint petition and finds that there is allegation with regard to the property. It is an admitted fact that the petitioner and the O.P. No. 2 are own brothers among themselves. It is also an admitted fact that the property in question was the subject matter in Partition Suit No. 77 of 2006, which was decreed by way of decree dated on 16.12.2010, whereby all the brothers have been given the equal share. As such, it appears that for a civil wrong, the present case has been filed. It is also an admitted fact that the matter has been investigated by the police and after investigation chargesheet has been submitted stating therein the mistake of fact, however, on the protest petition, filed by the O.P. No. 2, the learned court has taken the cognizance. If such a situation is there, in the cognizance order, prima facie what has come against the petitioner must be disclosed, however, in the case in hand, the same is lacking. The present case is fully covered in the light of the judgment -6- relied by learned counsel appearing for the petitioner in the case of Vijay Kumar Ghai & Ors. (Supra). 8. Accordingly, the entire criminal proceeding including the order taking cognizance dated 25.05.2011, by which, cognizance for the offence under Section 403 and 418 of the Indian Penal Code has been taken against the petitioner, in connection with C/1 Case no. 3939 of 2010, pending in the court of learned C.J.M., Jamshedpur, are hereby, quashed. 9.
Arguments
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner ------ : : : : : ------ 08/ 18.07.2023 Heard Mr. Suraj Singh, learned counsel appearing for the Mr. Suraj Singh, Advocate. Mr. J.N. Upadhyay, Advocate. Mr. Bishwambhar Shastri, A.P.P. Mr. Amit Kumar Das, Advocate. Mr. Saurav Kumar, Advocate. For the State For the O.P. No. 2 petitioner, Mr. Bishwambhar Shastri, learned A.P.P. for the State and Mr. A.K. Das, learned counsel for the O.P. No. 2. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 25.05.2011, by which, cognizance for the offence under Section 403 and 418 of the Indian Penal Code has been taken against the petitioner, in connection with C/1 Case No. 3939 of 2010, pending in the court of learned C.J.M., Jamshedpur. 3. The prosecution case arising out of a complaint to the effect that complainant was informant of Sakchi P.S. Case No. 142 of 2008 dated 16.06.2008, which was instituted under Section 420, 406/34 IPC corresponding to G.R. Case No. 1320 of 2008. It is stated that the complainant is the Managing partner of M/s Mansarovar Hospitalities, firm registered under a partnership the Bihar and Jharkhand Shops and Establishment Act, having its registered office at 6, C.H. Area (East), PO & PS- Bistupur, Jamshedpur and operating office at Hotel Mansarovar Holding No. 507, Kasidih Lease Area, PO & PS- Sakchi Jamshedpur. It is further stated that day to day business of M/s Mansarovar Hospitalities was being run and managed from Hotel Mansarovar of which the complainant is joint owner along with the accused no.3, Bhupender Singh. It is further stated that on 31st May, while complainant was examining the Account books of his firm M/s Mansarovar Hospitalities, he noticed that there were gross irregularities between cash receipts and deposits made into the existing bank A/c of firm in -2- HDFC Bank having A/c No. 00872000008441 and AXIS Bank, A/c no. 012010200012564 for the period between 1 April 2008 and 31 May 2008.The said irregularities amounting to approximately Rs. 4,50,000/-. It is further stated that the complainant immediately called the accused No.1 and 2 to his office and inquired from them regarding the apparent irregularities in the Account Books but filing to get a satisfactory reason, he was compelled to issue them with a memo dated 31 May 2008 warning them against aiding and instigating others to misappropriate and further warning them with dismissal if they did not stop their illegal activities of misappropriation of funds. 4. Mr. Suraj Singh, learned counsel appearing for the petitioner submits that earlier the complaint case, filed by the O.P. No. 2, was sent by the learned court under Section 156(3) Cr.P.C. for registering the FIR and investigation and thereafter the investigation was conducted and the police has submitted the final form stating the mistake of fact. He submits that thereafter O.P. No. 2 filed a protest petition and the learned court has taken the cognizance. He further submits that the there is dispute between the petitioner and the O.P. No. 2, who are own brothers among themselves. He further submits that for a civil wrong, the present case has been filed. He further submits that the property in question was also the subject matter in the Partition Suit No. 77 of 2006, which was decreed by way of decree dated on 16.12.2010, whereby all the brothers have been given the equal share. In these backgrounds, he further submits that for a civil wrong, the criminal case has been filed and to buttress his arguments, he relied in the case of Vijay Kumar Ghai & Ors. Versus State of West Bengal & Ors., reported in (2022) 7 SCC 124, wherein the Hon’ble Supreme Court in paras-20 to 25 held as follows:- in R.P. Kapur v. State of “20. This Court Punjab [R.P. Kapur v. State of Punjab, (1960) 3 SCR 388 : AIR 1960 SC 866] summarised categories of cases where inherent power can and should be exercised to quash the proceedings: 20.1. Where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction. 20.2. Where first the allegations information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged. the in -3- 20.3. Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 21. This Court in Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] observed : (SCC p. 11, para 27) “27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.” 22. In Indian Oil India Ltd. [Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 : (2006) 3 SCC (Cri) 188] , a two-Judge Bench of this Court reviewed the precedents on the exercise of jurisdiction under Section 482 of the Criminal Procedure Code, 1973 and formulated guiding principles in the following terms : (SCC p. 748, para 12) Corpn. v. NEPC
Decision
This petition is allowed and disposed of. Amitesh/- (Sanjay Kumar Dwivedi, J.)