1.Shailesh Agarwal @ Sailesh Agarwalla 2.Ashish Agarwalla The State of Jharkhand & Another v. CORAM : HON’BLE
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 708 of 2017 1.Shailesh Agarwal @ Sailesh Agarwalla 2.Ashish Agarwalla The State of Jharkhand & Another ..... …Opposite Parties .... …Petitioner Versus CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners :- Mr. Shailesh Kumar Singh, Advocate ------ For the State : Mr. Santosh Kr. Shukla, A.P.P. 07/ Dated:-24.11.2023 Notice upon the O.P. No.2 has been effected. On 11.10.2022 with a view to provide one more opportunity to the O.P. No. 2 the matter was adjourned. Today, again on repeated calls nobody responded on behalf of the O.P. No.2 that is why this matter is being heard in absence of the O.P. No.2.
Legal Reasoning
2. Heard Mr. Shailesh Kumar Singh, learned counsel for the petitioners and Mr. Santosh Kumar Shukla, learned counsel for the State. 3. This petition has been filed for quashing the entire criminal proceeding in connection with Dhanbad P.S. Case No. 512 of 2016, corresponding to G.R. No. 3108 of 2016, pending in the Court of the learned Chief Judicial Magistrate, Dhanbad. Subsequently, the learned court by order dated 02.05.2017 has been pleased to take cognizance which has been challenged by way of I.A. No. 3135 of 2022. 4. Learned counsel for the petitioners submits that during pendency of this petition learned court has been pleased to take cognizance and in view of that the prayer made in I.A. may kindly be allowed. 5. The said prayer has been resisted by Mr. Shukla, learned 2 counsel for the State submitting that belatedly the said order has been challenged. 6. Considering that initially F.I.R. was challenged and during pendency of this petition the said order has been passed to avoid the multiplicity of litigation prayer made in I.A. is allowed. 7. 8. 9.
Decision
I.A. No. 3135 of 2022 stands disposed of. Let the said I.A. be treated as part of this Cr.M.P. The F.I.R. has been lodged alleging therein that on 16.05.2015 complainant entered into an agreement for sale of land with the co-accused Samir Kumar Mandal and Ajay Paswan for sale of land measuring an area of 5.46 acres of land situated in mouza no, 10, khata no. 14, plot no. 113, 115, 117. The said land is registered in the name of Dudhani Fuels Pvt. Ltd, of which the petitioners are the directors. It is further alleged that the petitioners were also present at the time of agreement being made between the informant and co- accused Samir Mandal and Ajay Paswan. It is further alleged that the said agreement had taken place at the registry office Dhanbad and on that particular date 10,01,000/- Rs. as an advance amount was given by the informant to co accused Samir Mandal and Ajay Paswan and subsequently on different dated, further amount of Rs. 34,50,000/-was also paid to co-accused who have acknowledged the receipts. It is further alleged that on 16.07.2015 a cheque of 5 lacs rupees of HDFC Bank having no. 0004 dated 16.07.2015 was also paid in the name of Dudhani Fuels Pvt. Ltd. and the said cheque was encashed on 21.07.2015 and the directors of Dudhani Fuels Ltd. are Shailesh Agarwal and Ashish Agarwal. It is further alleged that the informant has spent around 20 3 lacs rupees more for renovation of old house, deep boring, repairing, coloring, constructing septic tank, electrification etc, and the entire records of the expenditure is with the informant. It is further alleged that the said land has been sold by the petitioner and other co-accused person as a result of conspiracy violating the terms of agreement co-accused Eqbal Singh, Lucky Pal Singh and Harbhajan Singh by four registered sale deeds. It is further alleged that the accused persons have forcibly taken control of the land and house. When the informant came to learn, he went to make an objection, and was abused and assaulted and thrown out of the plant. Co-accused Ajay Paswan threatened that he would file a case against him under SC & ST Act. Hence the present FIR. 10. Mr. Shailesh Kumar Singh, learned counsel for the petitioners submits that the petitioners are directors of the Dudhani Fuels Pvt. Ltd., Dhanbad. He submits that on the basis of agreement of sale of a particular land the present case has been filed. The said agreement is between Samir Kumar Mandal, Ajay Paswan and the O.P. No.2. He submits that one Pankaj Prasun Tiwari has singed the said agreement as a witness and he deposited a sum of Rs. 5 lakhs in the account of said company namely, Dudhani Fuels Pvt. Ltd. He submits that so far these petitioners are concerned, they have got no role in such transaction and when it came to the knowledge of the petitioners, they already returned the said amount in the Court on 20.09.2016 and the said amount was received by Pankaj Prasun Tiwari on 06.10.2016. He submits that inspite of that chargesheet has been submitted and the learned court has taken cognizance. 4 11. Mr. Santosh Kumar Shukla, learned counsel for the State submits that chargesheet has been submitted and in view of that the learned court has taken cognizance and at this stage this court may not interfere. 12. The Court has gone through the contents of F.I.R. as well as agreement which is annexed with the petition. It is an admitted position that the said agreement was between Samir Kumar Mandal, Ajay Paswan and the O.P. No.2. One Pankaj Prasun Tiwari signed the said agreement as a witness and he has deposited an amount of Rs. 5 lakh in the account of company and the said amount has already been returned which is fortified in the order recorded by the learned court contained in Annexure-2. Apart from that so far these petitioners are concerned, nothing has been disclosed how they are involved in said transaction. If such a situation was there the High Court is having duty to examine the matter as to whether the case against the petitioners are made out or not. 13. The ambit and scope of power of the High Court under section 482 of Cr.P.C for quashing the criminal proceeding was considered by the Hon’ble Supreme Court in the case of “ Vineet Kumar Vs. State of U.P. and Another”(2017) 13 SCC 369 wherein para 22, 23 and 41 it has been held as under:- “22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 CrPC vested in the High Court. Section 482 CrPC saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. 23. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three- in State of Karnataka v. L. Judge Bench of this Court 5 Muniswamy [State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 : 1977 SCC (Cri) 404] held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated: (SCC p. 703) “7. … In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , which is to the following effect: (SCC p. 379, para 102) “102. 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.” Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the of judgment (7) Where a criminal proceeding of Haryana v. Bhajan Lal [State of State 6 Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.” 14. Further the guidelines for interfering in quashing matter was channelized by the Hon’ble Supreme Court in the case of “State of Haryana and others V. Bhajan Lal and others” 1992 Supp. (1) SCC 335 wherein para 102 the Hon’ble Supreme Court has 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 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 (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.” 15. Coming to the facts of the present case it appears that the petitioners are not signatory in the agreement and they have already returned the amount to witness of the agreement namely, Pankaj Prasun Tiwari who deposited the amount in the account of the company and recorded in the orders of the learned court, it is crystal clear that these petitioners are maliciously made accused and in view of that the case of the petitioners are fully covered with category no. 1 and 3 of the Bhajanlal (supra). 16. In view of above facts, reasons and analysis the entire criminal proceeding including order taking cognizance dated 02.05.2017 in connection with Dhanbad P.S. Case No. 512 of 2016, corresponding to G.R. No. 3108 of 2016, pending in the Court of the learned Chief Judicial Magistrate, Dhanbad, so far these petitioners are concerned, is quashed. 17. This petition stands allowed and disposed of. Pending I.A. If any stands disposed of. Interim order is vacated. 18. It is made clear that entire criminal proceeding and cognizance order so far other accused persons are concerned, this court has not interfered with. The learned court shall proceed in accordance with law. Satyarthi/- (Sanjay Kumar Dwivedi, J.)