Rakesh Kumar & Ors. v. State of Punjab

for quashing FIR No. 56 dated

09.05.2008, under Sections 409, 465, 467, 468, 471 and 120-B of the Indian Penal Code, Police Station Mehna, District Moga, has been filed by the petitioners. Crl. M. No. M- 28700 of 2008 2

2. The aforesaid FIR was registered, on the statement of Sukhwinder Singh, Member Panchayat, on the allegations, that Krishna Devi, petitioner no.2, was the Sarpanch of the village from 1998 to June 2003. After her tenure, the panchayat record was handed over to the present Sarpanch. On perusal of the record, it was found that the Ex- Sarpanch Krishna Devi, petitioner no.2, committed fraud during her tenure. It was stated that Rakesh Kumar, petitioner no.1, the son of Krishna Devi, petitioner no.2, has constructed a School building, the cost whereof is 50 to 60 lacs. The school building is named as Baba Farid Public School. It was further stated that the petitioners, who have no source of income, spent huge amount for the construction of the School building by embezzling the funds of Gram Panchayat. It was further stated that when the record of the Panchayat was produced by Krishna Devi, petitioner no.2, it was found that the same was bearing interpolations. It was also found that there was embezzlement of Rs.5.00 lacs during the tenure of Krishna Devi, petitioner no.2. Ultimately, the accused were challaned.

3. I have heard the Counsel for the parties, and have gone through the record of the case, carefully. Crl. M. No. M- 28700 of 2008 3

4. The Counsel for the petitioners, has submitted that Krishna Devi, petitioner no.2, no doubt, was Sarpanch during the aforesaid period. He has further submitted that she alongwith her son namely Rakesh Kumar, petitioner no.1, did not embezzle any amount of the Gram Panchayat, nor did, make interpolations, or falsify the record. He has further submitted that 'No Due Certificate' was given to Krishan Devi, Sarpanch. It was further stated that initially a complaint was made to the Block Development & Panchayat Officer against Krishna Devi, petitioner no.2, wherein it was ordered that recovery of a sum of Rs.1,97,871/- was liable to be effected from her. It was further stated that Krishna Devi, petitioner no.2, challenged the said order, by way of an appeal, before the District Development and Panchayat Officer. The District Development and Panchayat Officer, vide order dated

13.12.2004, accepted the appeal of Krishna Devi, petitioner no.2, with the observation that the work, which was done during her tenure, as Sarpanch was duly incorporated in the measurement book and the certificate of utilization of grants was issued and, thus, nothing was due against her (Krishna Devi, petitioner no.2). It was further stated that once the appeal was allowed by the District Development and Crl. M. No. M- 28700 of 2008 4 Panchayat Officer, Moga, it could not be said that the petitioner embezzled any amount of the Panchayat or interpolated the record thereof. He has further submitted that, in these circumstances, continuation of the FIR would amount to sheer abuse of the process of the Court.

5. On the other hand, the Counsel for the respondent-State, has submitted that during the course of investigation, it was found that the petitioners, in connivance with each other, interpolated the record of Gram Panchayat and embezzled an amount of Rs.5.00 lacs of the grants, which were sanctioned in favour of the Gram Panchayat. She has further submitted that at the time of deciding the petition under Section 482 Cr.P.C., the Court is not to go into the probable defence, which may be available to the accused/petitioners, during the course of trial of the case. She has further submitted that, if from the allegations, contained in the FIR, and the documents, attached therewith, the commission of criminal offences, is made out, then at the initial stage, the same (FIR), could not be ordered to be quashed. She has further submitted that the instant case is based on the documentary evidence. She has further submitted that the order of the District Development & Panchayat Officer, did not have any effect on the merits of the case. She Crl. M. No. M- 28700 of 2008 5 has further submitted that continuation of the FIR, in these circumstances, would not amount to sheer abuse of the process of the Court.

6. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that, if the allegations, contained in the FIR, and the documents attached therewith, prima-facie disclose the commission of offences, then the Court in exercise of its inherent powers, under Section 482 Cr.P.C., cannot quash the same. The defence, if any, available to the accused, can be taken by them, during the course of trial of the case. It is only, if on bare perusal of the allegations, contained in the FIR, that the Court comes to the conclusion, that no offence, was made out, or that such allegations are so absurd, that no prudent person would believe the same, then such an extra-ordinary power, under Section 482, can be exercised. In State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that, in following category of cases, the High Court may exercise the power, under Article 226 or under Section 482 of the Code of Criminal Procedure, to interfere in the proceedings, relating to Crl. M. No. M- 28700 of 2008 6 cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of justice. However,such power should be exercised sparingly, and that too, in the rarest of rare cases: 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. Crl. M. No. M- 28700 of 2008 7 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 every 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. Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

7. Now, adverting to the facts of the instant case, let us see, as to whether, the principle of law, laid down, in the aforesaid case, is applicable to the same or not. There is no dispute, that Krishna Devi, petitioner no.2, was the Sarpanch Crl. M. No. M- 28700 of 2008 8 of Gram Panchayat, during the aforesaid period. The grants were sanctioned in favour of Gram Panchayat by the Government for development works. It was prima-facie found , on scrutiny of the record, that the same had been interpolated by Krishna Devi, in connivance with her son, namely Rakesh Kumar, petitioner no.1. It was also prima-facie established that heavy amount of grants of the Gram Panchayat had been embezzled by Krishna Devi, petitioner no.2. The allegations, contained in the FIR and the documents, attached therewith, therefore, clearly constituted the criminal offences. If there is any probable defence of the accused-petitioners, they can take the same, at the time of the trial of the Case. At this stage, the probable defence of the accused, cannot be taken into consideration. Continuation of the FIR, therefore, would not cause injustice, nor would amount to the abuse of the process of the Court. The petition is, thus, liable to be dismissed.

8. For the reasons, recorded above, the petition under Section 482 Cr.P.C., filed by the petitioners, being devoid of merit, must fail, and the same is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. Crl. M. No. M- 28700 of 2008 9

9. The Registry is directed to send copies of the order, to the Courts concerned, by all modes of communication, immediately. February 10, 2010 dinesh ( SHAM SUNDER ) JUDGE