Virender vs State
2011 Latest Caselaw 2121 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  Crl.M.C.No. 2180/2004

                                       Date of Decision : 20.04.2011

VIRENDER                                           ...... Petitioner
                               Through:    Petitioner in person.

                                  Versus

STATE                                       ...... Respondent

                               Through:    Mr. M.N.Dudeja, APP


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        NO

3.     Whether the judgment should be reported
       in the Digest ?                                NO

V.K. SHALI, J. (oral)

1. This is a petition filed by the petitioner for quashing of FIR

no.401/2004 registered under Section 409, P.S.Tilak Marg.

2. Briefly stated the facts of the case are that an FIR bearing

No.610/2000 under Section 308/34 IPC was registered on

9.7.2000 by P.S. Dabri against some accused persons. The

investigation of the case were handed over to the present

petitioner. It is alleged by the present petitioner, that an

accused by the name of Bharat was arrested by him in

respect of the aforesaid FIR No.610/2000 on 9.7.2000. In

pursuance to the disclosure statement of the said accused i.e.

Bharat, a weapon of offence which was a Darati was seized

and the same is alleged to have been deposited with the

Malkhana of P.S. Dabri.

3. After investigation, the charge sheet was filed and the case

was sent for trial to the Court of Sh.V.P.Vaish, the then

Additional Sessions Judge. During the course of trial before

the learned Additional Sessions Judge, it transpired that the

weapon of offence was not at all deposited with the Malkhana.

This was brought on judicial record by PW-9 who has stated

that no case property was deposited in the Malkhana as per

entry in register No.19, pertaining to the said FIR. Further,

Inspector Satya Pal Yadav, the then Additional SHO, P.S.

Dabri also confirmed the said fact

4. On account of these statements of the witnesses during the

course of trial, the learned Additional Sessions Judge made a

written complaint to the P.S. Tilak Marg against the present

petitioner on the basis of which an FIR no.401/2004 was

registered under Section 409 IPC by P.S.Tilak Marg.

5. The petitioner filed two anticipatory bail applications before

the learned Sessions Judge, Patiala House Courts, but both

these applications were rejected vide order dated 19.8.2004

and 24.8.2004. After rejection of both these applications for

grant of anticipatory bail, the petitioner filed the present

petition for quashing of FIR itself.

6. On the very first date, while issuing notice, this Court had

stayed the investigation vide order dated 2.9.2004, which was

modified on 8.10.2004, inasmuch as, it was directed that the

investigation may continue but the petitioner may not be

arrested till the next date. The said interim order has

continued till date.

7. I have heard the learned counsel for the petitioner as well as

the learned counsel for the State and have perused the status

report. I have gone through the record also.

8. It has been contended by the learned counsel for the

petitioner that the weapon of offence was deposited by the

petitioner with the Malkhana after seizure and if the same

has been misplaced, the petitioner cannot be held responsible

for the same. The second objection, which has been raised by

the learned counsel for the petitioner is with regard to the

modality in which the FIR was registered against the

petitioner. It was contended by the learned counsel that the

learned Sessions Judge ought not to have lodged a complaint

to the P.S.Tilak Marg for registration of an FIR as he could

not have taken the cognizance of the same under Section 190

Cr.P.C. and on the contrary he ought to have lodged a

complaint with the CMM/ACMM, who would have marked

that complaint to the Ilaka Magistrate, whereupon

investigation could have been directed and cognizance could

have been taken. This submission is made by the learned

counsel on the assumption that the offence of the petitioner is

purported to have been committed during the course of

judicial proceeding and therefore, the procedure for taking

cognizance under Section 190 Cr.P.C. has to be exercised

keeping in view Section 193 IPC which deals with the offence

of perjury during the course of judicial proceeding.

9. I have carefully considered the respective submissions

advanced before this Court. The law regarding quashing of

FIR has been enunciated way back in 1992 in case titled

State of Haryana & Ors. Vs. Bhajan Lal & Ors. AIR 1992 SC

604. The said pronouncement of law has been repeatedly

reiterated by the Apex Court in the subsequent judgments. It

has been clearly laid down in the case of Bhajan Lal (supra)

that the power to quash the proceedings have to be exercised

very sparingly and in the rarest of the rare cases. Seven

illustrative contingencies have been given in the said

judgment, where FIR can be quashed. The petitioner has to

show that in which of the contingency his case is covered, so

as to get the FIR quashed.

10. The petitioner has not been able to satisfy, the availability of

even a single contingency which may warrant the quashing of

the FIR. On the contrary, a bare perusal of the FIR clearly

show that the petitioner had admittedly in the capacity of IO

seized the weapon of offence and prepared a seizure memo

and after having done so, the onus was on him to show as to

how it was dealt with and if it is not produced why the same

was not produced before the Court and the reasons thereof.

This has not been done by him before the Trial Court or even

at this stage during the course of hearing of these

proceedings.

11. The contention of the learned counsel for the petitioner is that

the petitioner had deposited the said weapon of offence with

the Malkhana, is a disputed question of fact to be adjudicated

and appreciated by the Trial Court only after the parties have

adduced their evidence. It has already come in evidence by

way of the statement of witness in the case where the

weapon of offence was seized that it has not been deposited in

Court. Therefore, this contention of the petitioner does not

have any merit.

12. So far as the second contention with regard to the modality of

lodging of an FIR or taking of cognizance by the learned

Sessions Judge is concerned, I do not agree with the

submissions advanced by the learned counsel. By making a

complaint to the SHO of P.S. Tilak Marg for registration of an

offence under Section 409 on account of breach of trust by a

public servant in respect of a valuable property, the learned

Sessions Judge has certainly not taken cognizance of the

offence. He acted in the capacity of an informant and

moreover, being a high public servant, he was under an

obligation to lodge a report against the petitioner for the

offence of breach of trust inasmuch as the weapon of offence

which was admittedly seized by the petitioner was not

produced during the course of trial and thereby this would

have helped the accused in going scot-free. It is very well

possible that this might have been done deliberately by the

petitioner with a view to help the accused persons.

13. So far as the lodging of the complaint by the learned Sessions

Judge with the learned AACMM/CMM and then he in turn

marking the same to the Ilaka Magistrate, the latter directing

investigation or taking of cognizance is concerned, I do not

feel that there was anything wrong muchless it being illegal to

lodge a report with the SHO of police station Tilak Marg.

Admittedly in the present case, the offence has not been

committed during the course of judicial proceedings. The

offence relates to the stage where the weapon of offence was

seized by the present petitioner and not deposited with the

Malkhana and thus prima facie an offence of breach of trust

was committed by a public servant.

14. It is worthwhile to reproduce here Section 409 of IPC, which

reads as under:-

"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being

in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

15. A perusal of the aforesaid Section would clearly show that

prima facie the learned Sessions Judge had absolutely no

other option but to lodge an FIR in view of the facts and

circumstances of the case -which he has rightly done.

16. For the reasons mentioned above, I am of the considered

opinion that there is absolutely no ground much less

justification for quashing the FIR against the present

petitioner. Accordingly, the petition is dismissed.

17. Interim order dated 08.10.2004 stands vacated.

V.K. SHALI, J.

APRIL 20, 2011 RN