Madhya Pradesh High Court

Rajendra Singh Solanki vs The State Of Madhya Pradesh on 9 February, 2022

Author: Rajeev Kumar Shrivastava

                               1

             The High Court Of Madhya Pradesh
                           Bench Gwalior
                          ***************
      SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                     MCRC 54667 of 2021

                     Rajendra Singh Solanki

                               Vs.
                      Sate of MP and Anr.

          ==============================
Shri T.C. Narwariya, counsel for the petitioner.
Smt. Abha Mishra, Public Prosecutor for the respondent No.1/
State.
             ===============================
Reserved on                                   01/02/2022
Whether approved for reporting               ......../........
               ==============================
                            ORDER

(Passed 09/02/2022)

Per Rajeev Kumar Shrivastava, J

By invoking the inherent power of this Court, present

present has been preferred by petitioner u/S. 482 of CrPC

seeking quashment of FIR bearing Crime No.296/2021

registered at Police Station Piprai, District Ashok Nagar for

offences under Sections 353, 294, 506 of IPC and other

subsequent criminal proceedings initiated threfrom.

(2) Factual matrix of the case, in short, is that respondent

No.2 Shivkant Chaturvedi lodged a report on 27/09/2021 at

Police Station Piprai, District Ashok Nagar alleging therein

that on the date of incident, he was engaged in village Garethi

for the purpose of vaccination and while he was doing Covid-

19 Vaccination Work in Health Centre, Garethi, at that time, at

around 01:00 PM and was present in the said Health Centre

petitioner- accused came there and told him to look into the

matter firstly of the pensioners and the persons of Sambal

Yojana. On that, petitioner-accused abused complainant and

when complainant objected to that, petitioner committed

''marpeeet'' with him by means of shoes. Thereafter, nearby

people reached the spot and intervened in the matter.

Petitioner, thereafter, while leaving the place of incident,

threatened complainant to kill him, on the basis of which, the

aforesaid FIR has been lodged against the petitioner for

commission of aforesaid offence vide Crime No.296 of 2021

under Sections 353, 294, 506 of IPC at Police Station Piprai,

District Ashok Nagar. Hence, this petition.

(3) Challenging the impugned FIR, it is submitted on

behalf of petitioner that petitioner has been falsely implicated

in the case. The complaint has been lodged against petitioner

by respondent No.2 is baseless and concocted. It is submitted

on behalf of petitioner that respondent No.2 is being a

Sarpanch of Panchayat and has misappropriated Government

funds and has done various irregularities by which, on the

basis of complaint made by him on 10/08/2021, the CEO of

Janpad Panchayat Chanderi has issued a show-cause notice

against petitioner. It is further submitted that till date, no

documentary evidence has been produced by respondent No.2

before the authorities concerned as to whether any

misappropriation of Government fund has been committed by

him or not. It is submitted that on the date of alleged incident,

respondent No.2 was performing his duty in his official

capacity and he was interrupted by present petitioner in regard

to misappropriation of Government funds and earlier,

petitioner has already made complaint in CM Helpline but

that of no avail, therefore, the complainant has no locus to file

the present FIR against petitioner and the same is false and is

liable to be quashed, by allowing this petition.

(4) Learned Government Counsel supported the impugned

FIR and submits that considering allegations made against the

petitioner, this petition deserves dismissal.

(5) I have considered the rival contentions of both the

parties and have gone through the record.

(6) It is undisputed fact that that a case has been registered

against petitioner for offences under Sections 353, 294, 506

of IPC for mistreating the complainant while performing his

official duties. Petitioner has come before this Court on the

ground that he has falsely been implicated in the case and

there was no wrong act done by him. On bare perusal of the

complaint, it appears that petitioner reached the place of

incident and interrupted in the official duties performed by

complainant while he was doing his working for the purpose

of vaccination. Prima facie a case is made out against

petitioner with an ulterior motive of petitioner for which he

can be held responsible for the offence committed by him and

can be prosecuted for the said offence.

(7) Power under Section 482 of CrPC is extra-ordinary in

nature and it is settled-proposition of law that this power has

to be exercised sparingly and only in the cases where

attaining facts and circumstances satisfy that possibilities of

miscarriage of justice will arise in case of non-use of power.

The Court can interfere in such exceptional cases where it

appears that the if not interfered, then it would cause great

injustice to someone. Where the proceedings are capricious

and arbitrary or based on no evidence or material at all

available on record or the proceedings are based on such

evidence or material which is wholly irrelevant or arbitrary.

At this stage sifting or weighing of the evidence is neither

permitted nor expected and the Court need not enter into

meticulous considerations of evidence and materials at that

stage.

(8) In the case of State of Harayana Vs. Bhajan Lal &

Others reported in 1992 SC(Cri) 426, the Hon'ble Apex

Court has prepared a guideline in this regard. Para 108 of the

judgment reads thus:-

''108. 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 F. I. R. 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 F.I.R. 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 F.I.R. 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. 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.

(9) Further, in the judgment of State of Rajasthan vs.

Fatehkaran Mehdu reported in (2017) 2 SCC (Cri.), the

Hon'ble Supreme Court speaks about the use of power for

quashing criminal proceedings and it is directed by Hon'ble

Apex Court that such powers should be exercised very

sparingly.

(10) The the Hon'ble Apex Court in the matter of Mahavir

Prashad Gupta & another vs. State of National Capital

Territory of Delhi and Others, reported in (2000) 8 SCC 115

has held as under:-

''5. The law on the subject is very clear. In the case

of State of Bihar and Anr. v. Murad Ali Khan reported in 1988 (4) SCC 655, it has been held that jurisdiction under Section 482 of the CrPC has to be exercised sparingly and with circumspection. It has been held that at an initial stage a Court should not embark upon an enquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335, this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the Court would no be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR of the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

10. Mr. Chidambaram also relied the case of Hridayal Ranjan Prasad Verma v. State of Bihar reported in (2000) 4 SCC 168. In this case there was transaction of sale of land by the Appellant to Respondent No. 2. The cheques had been issued by Respondent No. 2 in favour of the Appellant. Those cheques were dishonored for insufficiency of funds. The Appellant had lodged complaint/FIR under Sections 406, 420 and 120B IPC. As a counter blast, Respondent No. 2 filed a complaint alleging offences under Sections 418, 420, 423, 469, 504 and 120-B IPC. This Court held as follows: (SCC pp. 174-75 & 177, paras 8-9 & 16) ''8. In the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335, this Court in the backdrop of interpretation of various relevant provisions of the CrPC 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 Cr. PC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or

otherwise to secure the ends of justice, making it clear that 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 to myriad kinds of cases wherein such power should be exercised.

102. (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) 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.

9. In the decision this Court added a note of caution to the effect that the power of quashing a criminal proceeding should be exercised "very sparingly and with circumstances and that too in the rarest of rare cases.

** *

16. Judged on the touchstone of the principles noted above, the present case, in our considered view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 418 and 423 has not been made out. So far as the offences under Sections 469, 504 and 120-B are concerned even the basic allegations making out a case thereunder are not contained in the complaint. That being the position the case comes within the first category of cases enumerated in State of Haryana v. Bhajan Lal and as such warrants interference by the Court. Reading the averments in the complaint in entirety and accepting the allegations to be true, the ingredients of intentional deception on the part of the accused right at the beginning of the negotiations for the transaction has neither been expressly stated nor indirectly suggested in the complaint. All that Respondent 2 has alleged against the appellants is that they did

not disclose to him that one of their brothers had filed a partition suit which was pending. The requirement that the information was not disclosed by the appellants intentionally in order to make Respondent 2 part with the property is not alleged expressly or even impliedly in the complaint. Therefore the core postulate of dishonest intention in order to deceive the complainant-Respondent 2 is not made out even accepting all the averments in the complaint on their face value. In such a situation continuing the criminal proceeding against the accused will be, in our considered view, an abuse of the process of the court. The High Court was not right in declining to quash the complaint and the proceeding initiated on the basis of the same.

Undoubtedly there could be interference in rarest of rare cases. However, one such would be when the complaint itself does not disclose any offence. In this case, as set out hereinabove, the complaint merely pointed out that the goods had been entrusted to the Petitioners and that the same, even though accepted and even though Lorry Receipt had been issued, were not delivered and were withheld. On those facts Police had to enquire whether there was any criminal breach of trust and forgery as claimed. On these facts it could not be said that the police should not have registered a FIR and/or to make an enquiry.'

(11) The Hon'ble Apex Court in the case of Dineshbhai

Chandubhai Patel vs. State of Gujarat, reported in (2018) 3

SCC 104 has held as under:-

'25. The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled.

26. This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three-Judge Bench laid down the following principle: (SCC pp. 576-77 & 598, paras 21 & 66) "21 ..........The condition precedent to the commencement of investigation under Section 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences."

66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case......

If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.''

(12) The Hon'ble Apex Court in the case of State of

Madhya Pradesh vs. Surendra Kori, reported in (2012) 10

SCC 155 has held as under:-

''The High Curt in exercise of its powers under

Section 482 CrPC does not function as a Court of Appeal or Revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 CrPC, 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 wide magnitude and cannot be seen in their true perspective without sufficient material.

In M.M.T.C. and Another v. Medchl Chemicals & Pharma (P) Ltd. and Another(2002) 1 SCC 234, this Court held as follows:(SCC p. 236) "The law is well-settled that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage, the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice....."

16. In State of Orissa and Another v. Saroj Kumar Sahoo(2005) 13 SCC 540, this Court held as follows: (SCC p. 547, para 8) "8.Exercise of power under Section 482 of the Cr.P.C. in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It

is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliauid alicui concedit, concedered videtur et id sine guo resipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself."

This Court, again, in Eicher Tractors Ltd. v. Harihar Singh(2006) 12 SCC 763, held as follows:(SCC p. 766, para 13) "13......8...When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it

accusation would not be sustained. That is the function of the trial Judge."

(13) Considering the aforesaid facts and circumstances of

the case as well as considering the law laid down by the

Hon'ble Apex Court, it is evident that on the alleged date of

incident, while the complainant was performing his duty in his

official capacity, he was interrupted by the present petitioner

and the petitioner threatened to kill him. Rather, the defence

of the petitioner that he has not committed any offence on the

alleged date of incident, cannot be considered at this stage and

the same may be considered on the basis of oral and

documentary evidence available during trial. This Court in

exercise of powers cannot adjudicate the aforesaid dispute in