Madhya Pradesh High Court

Bharat Lal Bhargava vs The State Of Madhya Pradesh on 24 August, 2021

Author: Sushrut Arvind Dharmadhikari

          THE HIGH COURT OF MADHYA PRADESH
                    W.P. No.14094/2021
 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)
                               (1)

Gwalior, dated : 24/8/2021

      Shri D.S.Raghuvanshi, Advocate for the petitioner.

      Shri G.K.Agrawal, Government Advocate for the

respondents/State.

Shri R.B.S.Tomar, Advocate for the Intervener.

Heard on the question of admssion.

This petiton, under Article 226 of the Constitution of

India, has been filed for the following reliefs:-

(i) That, the impugned letter dated 20.07.2021 (Annexure P/1) be directed to be quashed. 7(i)-A That, the impgned FIR dated 01.08.2021 (Annexure P/5) may kindly be quashed

(ii) That, it may be held that that the respondent Sub Divisional Officer committed grave error of law while directing for registration of criminal case against the petitoiner.

(iii) That, all consequential action if any, including criminal proceedings, if instituted, during pendency of this petition be also directed to be produced before the Hon'ble Court and same be set aside. (It is however stated that till now the impugned letter has not been executed and no FIR has been lodged against the petitioners.)

(iv) That, other relief which is just and proper in the facts and circumstances of the case may also be granted"

It is submitted by learned counsel for the petitioner that THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

petitioner no.1 is holding the post of Secretary of Gram

Panchayat Gata, Janpad Panchayat Mehgaon, District Bhind

while petitioner no.2 is Secretary of Gram Panchayat Sondha,

Janpad Panchayat Mehgaon, District Bhind. The impugned

FIR has been lodged against the petitoners for the offence

punishable under section 420/34 of the IPC in connection

with Crime No. 319/2021 registered at Police Station

Mehgaon, District Bhind. The Sub Divisional Officer

Mehgaon, District Bhind registered a complaint filed by Mr.

Shanti Yadav S/o Sadhu Yadav in respect of the resolutions

passed and issued notice to the concerned Gram Panchayats.

Since the petitioners failed to produce the record pertaining to

the aforesaid resolutions, the SDO proceeded for registration

of criminal case against the petitioners without affording

opportunity of hearing and without issuing any notice, which

is illegal. It is further submitted that on the complaint filed by

the complainant, a Fact Finding Committee was constituted

and an enquiry was got conducted, in which it was found that

in spite of repeated reminders, the petitioners had not made THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

available the records as desired, which reveals that the work

was not carried out by the laboureres but the same as done

with the help of machines. Even the toilets were not got

constructed but the amount was withdrawn which reflects that

the Secretary and Saranch were involved in corruption.

Accordingly, the FIR was directed to be registered and the

same has been registered. The Apex Court in the case of

State of Haryana and others Vs. Bhajan Lal and others

(1992 Supp (1) SCC 335) and in the case of Lalita Kumari

Vs. Government of Uttar Pradesh and others ((2014)2

SCC 1), has held that if the prosecution of a person is

outcome of malafides of complainants, then the FIR may be

quashed.

Per contra the petition is vehemently opposed by

learned counsel for the State, as well as, Intervener.

Heard, learned counsel for the parties.

The fact finding enquiry was conducted and prima

facie it was found that the petitioners were responsible for

misappropriation. The respondents/Authorities have taken a THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

decision to lodge an FIR and, accordingly, the FIR has been

lodged. In the case of Lalita Kumari (Supra) it has been held

that if the allegations made in the complaint disclose

cognizable offence, then FIR is to be registered. It is not the

case of the petitioners that if the entire allegations are

accepted, no cognizable offence would be made out. The

defence of petitioner at the earliest stage cannot be considered

by this Court. The petitioner would be entitled to raise the

defence at appropriate stage in the trial as held by the Apex

Court in the case of State of Orrisa Vs. Debendra Nath

Padhi ((2005) 1 SCC 568).

So far as the question of quashment of FIR is

concerned, the law is well settled.

The Supreme Court in the case of State v. N.S.

Gnaneswaran, reported in (2013) 3 SCC 594 has held as

under :

11. The High Court has not recorded the finding that if the contents of the FIR registered against the respondent are taken on its face value, they do not disclose the THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

cognizable offence and thus, the FIR was liable to be quashed. Rather it has been quashed merely on technical ground that the copy of the said FIR after being lodged had not been given to the informant. The judgment impugned herein is required to be examined as to whether giving the copy of the FIR to the informant is mandatory and if not what is the prejudice caused to the respondent- accused as the informant has not raised the grievance of non-supply of the copy of the FIR nor has it been the case of the respondent that he sought the copy of the FIR and was not given.

12. The issue also requires to be examined on the touchstone of doctrine of prejudice. Thus, unless in a given situation, the aggrieved makes out a case of prejudice or injustice, some infraction of law would not vitiate the order/enquiry/result. In judging a question of prejudice, the court must act with a broad vision and look to the substance and not to technicalities.

(Vide: Jankinath Sarangi v. State of Orissa, State of U.P. v. Shatrughan Lal, State of A.P. v. Thakkidiram Reddy and Debotosh Pal Choudhury v. Punjab National Bank.)

The Supreme Court in the case of Shakson Belthissor v. State of Kerala, reported in (2009) 14 SCC 466 has held as under :

14. The scope and power of quashing a first information report and charge-sheet THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

under Section 482 CrPC is well settled. The said power is exercised by the court to prevent abuse of the process of law and court but such a power could be exercised only when the complaint filed by the complainant or the charge-sheet filed by the police did not disclose any offence or when the said complaint is found to be frivolous, vexatious or oppressive. A number of decisions have been rendered by this Court on the aforesaid issue wherein the law relating to quashing of a complaint has been succinctly laid down.

15. "5. ... In Nagawwa v. Veeranna Shivalingappa Konjalgi it was held that the Magistrate while issuing process against the accused should satisfy himself as to whether the allegations [made] in the complaint, if proved, would ultimately end in the conviction of the accused. It was held that the order of the Magistrate for issuing process against the accused could be quashed under the following circumstances: (SCC p. 741, para 5) '(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.'

16. In Drugs Inspector v. Dr. B.K. Krishnaiah it was held by this Court that: (SCC p. 455, para 5) "5. In a quashing proceeding, the High Court has to see whether the allegations made in the complaint petition, if proved, make out a prima facie offence and that the accused has prima facie committed the offence."

In the said decision this Court refused the prayer for quashing of the complaint on the ground that there were sufficient allegations in the complaint to make out a case that the accused persons were responsible for the management and conduct of the firm and, therefore, the extent of their liability could be and should be established during trial.

17. In MCD v. Ram Kishan Rohtagi it was held that when on the allegation made in the complaint, a clear case was made out against all the respondents (the accused persons), the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.

THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

18. In MCD this Court observed as follows in para 8: (SCC p. 5) "8. Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Nagawwa v. Veeranna Shivalingappa Konjalgi where the scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC p. 741, para 5 : SCC (Cri) pp. 511-12] '5. ... Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(3) where the discretion exercised by the THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.' " The Supreme Court in the case of V. Ravi Kumar v. State, reported in (2019) 14 SCC 568 has held as under :

24. Exercise of the inherent power of the High Court under Section 482 of the Criminal Procedure Code would depend on the facts and circumstances of each case. It is neither proper nor permissible for the Court to lay down any straitjacket formula for regulating the inherent power of the High Court under Section 482 CrPC.

25. Power under Section 482 CrPC might be exercised to prevent abuse of the process of law, but only when, the allegations, even if true, would not constitute an offence and/or were frivolous and vexatious on their face.

26. Where the accused seeks quashing of the FIR, invoking inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. Reference THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

may be made to the decision of this Court, inter alia, in State of Punjab v. Subhash Kumar and Janata Dal v. H.S. Chowdhary.

The Supreme Court in the case of CBI v. Arvind Khanna, reported in (2019) 10 SCC 686, has held as under :

17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.

The Supreme Court in the case of State of Punjab v.

Dharam Singh, reported in 1987 Supp SCC 89, has held as under :

2. The High Court has, however, not confined its scrutiny to the averments contained in the first information report but has traversed beyond and examined the case THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

in the light of the contentions put forth by the respondents in their petition under Section 482 CrPC. By indulgence in such exercise the High Court has come to the conclusion that the second respondent Cooperative Society cannot be termed a dealer of the alleged adulterated fertilizer distributed to its members because there was no sale involved in the transaction, that for the same reason the second respondent Society was not bound to obtain a Registration Certificate for selling fertilizer and furthermore the alleged sale of adulterated fertilizer was itself open to serious doubt because of conflicting analysis reports issued by the Chemical Analyst regarding the fertilizer and hence the emergent position is that the first information report does not disclose the commission of cognizable offences. Thus what the High Court has done is to go far beyond the contents of the first information report and enter into a discussion on the merits of the case before the investigating agency had conducted investigation and collected evidence.

The Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd., reported in (2006) 6 SCC 736, held as under :

"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions.

THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana vs. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj vs. Kanwar Pal Singh Gill [(1995) 6 SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar vs. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168], M. Krishnan vs Vijay Singh [(2001) 8 SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]. The principles, relevant to our purpose are :

(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 the 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 THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(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) A given set of facts may make out :

(a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

13. While on this issue, it is necessary to take notice of a growing tendency in THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri vs. State of UP [(2000) 2 SCC 636], this Court observed : "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under section 250 Cr.P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

The Supreme Court in the case of Vijayander Kumar v. State of Rajasthan, reported in (2014) 3 SCC 389 has held as under :

11. No doubt, the views of the High Court in respect of averments and allegations in the FIR were in the context of a prayer to quash the FIR itself but in the facts of this case those findings and observations are still relevant and they do not support the contentions on behalf of the appellants. At the present stage when the informant and witnesses have supported the allegations made in the FIR, it would not be proper for this Court to evaluate the merit of the allegations on the basis of documents annexed with the memo of appeal. Such materials can be produced by the appellants in their defence in accordance with law for due consideration at appropriate stage.

12. The learned counsel for the THE HIGH COURT OF MADHYA PRADESH W.P. No.14094/2021 (Bharat Lal Bhargava & another Vs. State of M.P. & Others)

respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/ complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd.

In view of the aforesaid, this Court is of the considered

opinion that no case is made out warranting interference in

the FIR registered at Crime No.319/2021 registered at Police

Station Mehgaon, District Bhind.