Madhya Pradesh High Court
Kailash @ Kallu vs The State Of Madhya Pradesh on 24 November, 2022
Author: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 24th OF NOVEMBER, 2022
MISC. CRIMINAL CASE No. 9477 of 2022
BETWEEN:-
KAILASH @ KALLU S/O PYARELAL RAI,
AGED ABOUT 52 YEARS, OCCUPATION:
BUSINESS JHANDAPURA, POLICE
1.
STATION MAURANIPURA DEVRI,
DISTRICT JHANSI (U.P.) (UTTAR
PRADESH)
PRADEEP S/O SHRI RAMSWAROOP RAI,
AGED ABOUT 35 YEARS, OCCUPATION:
BUSINESS BADAGAON GATE BHAR 960
DADIAPURA, P.S. KOTWALI, DISTT.
2.
JHANSI (UTTAR PRADESH) BOT ABOVE AT
PRESENT R/O BEHIND MADHYA BHARAT
MHOW, SINDIGATE OFFICE MHOW
(MADHYA PRADESH)
.....PETITIONERS
(SHRI PRADEEP KUMAR GUPTA, LEARNED
COUNSEL FOR THE PETITIONERS)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION BADGONDA DISTRICT
INDORE (MADHYA PRADESH)
.....RESPONDENT
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
2
( SHRI N.S. BHATI GA APPEARING ON
BEHALF OF ADVOCATE GENERAL)
This M.Cr.C. coming on for hearing this day, the court
passed the following:
O R D E R
This petition under section 482 of the Code of Criminal
Procedure is preferred by petitioners for quashment of charge sheet
arising out of FIR bearing crime no. 267/2021 dated 25.5.2021 for
the offence under section 34(2) of MP Excise Act, 1915 registered
at police station Badgonda District Indore and all proceedings
arising therefrom.
Facts of the case in brief are that on 25.5.2021 police got
discrete information regarding the illegal transportation of liquor.
Acting upon said information, police party reached on the spot and
intercepted four persons who disclosed their name as Abhishek,
Yashu @ Nanna, Pasa and Vishu and recovered 59 liters 400 ml. of
liquor from their joint possession for which they do not possess any
valid license/permit. On the basis of memorandum under section 27
of Indian Evidence Act given by the co-accused, present petitioners
has been implicated as accused in this offence.
Learned counsel for petitioners contended that both the
petitioners are innocent and they have been falsely implicated in
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
this offence on the basis of memorandum given under section 27 of
Evidence Act by the co-accused persons Pasa and Abhishek,
applicant no. 1 has been implicated in this offence which is not
admissible in evidence. Nothing has been recovered from
possession of present petitioners. There is no legal evidence
available on record to connect the petitioners with the
aforementioned offence. Charge sheet filed against the petitioners is
an abuse of process of law. The charge sheet is so vague and
inherently improbable on the basis of which no produce person can
even reach on a conclusion that there was sufficient grounds for
proceedings against the petitioners. Under these circumstances,
learned counsel for petitioners prays that impugned charge sheet,
FIR bearing crime no. 267/2021 dated 25.5.2021 and all
proceedings arising therefrom be quashed.
On the other hand learned counsel for respondent/State
opposes the prayer and prays for its rejection by submitting that
there is prima facie evidence available on record against the
petitioners and no case for interference is made out.
Heard learned counsel for parties at length and perused the
record.
Learned counsel for the petitioners placed reliance upon
judgment of the Hon'ble Apex court in the matter of Dipakbhai
Jagdishchandra Patel Vs. State of Gujarat reported in (2019) 16
SCC 547 in which it has been held that confession made to a police
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
officer is clearly inadmissible.
Before adverting to the rival contentions of the learned
counsel for the parties it will be useful to record the law laid down
by the Hon'ble Apex court on the jurisdictional issue under section
482 of Cr.P.C.
Hon'ble Apex Court in the case of Kaptan Singh Vs. State of
Uttar Pradesh and Others reported in (2021) 9 SCC 35 in
paragraph No.10 has held as under:-
"The High Court has failed to appreciate and
consider the fact that there are very serious triable
issues/allegations which are required to be gone into and
considered at the time of trial. The High Court has lost
sight of crucial aspects which have emerged during the
course of the investigation. The High Court has failed to
appreciate and consider the fact that the document i.e. a
joint notarized affidavit of Mamta Gupta - Accused No.2
and Munni Devi under which according to Accused no.2
- Ms. Mamta Gupta, Rs.25 lakhs was paid and the
possession was transferred to her itself is seriously
disputed. It is required to be noted that in the registered
agreement to sell dated 27.10.2010, the sale
consideration is stated to be Rs.25 lakhs and with no
reference to payment of Rs.25 lakhs to Ms. Munni Devi
and no reference to handing over the possession.
However, in the joint notarized affidavit of the same date
i.e., 27.10.2010 sale consideration is stated to be Rs.35
lakhs out of which Rs.25 lakhs is alleged to have been
paid and there is a reference to transfer of possession to
Accused No.2. Whether Rs.25 lakhs has been paid or not
the accused have to establish during the trial, because
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
the accused are relying upon the said document and
payment of Rs.25 lakhs as mentioned in the joint
notarized affidavit dated 27.10.2010. It is also required
to be considered that the first agreement to sell in which
Rs.25 lakhs is stated to be sale consideration and there is
reference to the payment of Rs.10 lakhs by cheques. It is
a registered document. The aforesaid are all triable
issues/allegations which are required to be considered at
the time of trial. The High Court has failed to notice
and/or consider the material collected during the
investigation."
Hon'ble Apex Court again in the case of Munshiram Vs.
State of Rajasthan and Another passed in Criminal Appeal
No.515-516 of 2018 on 09/04/2018 in paragraph No.13 has held as
under:-
"In light of the fact that the enquiry was pending
and there are aspects which may require investigation,
we are of the considered opinion that the High Court
erred in quashing the FIR at the threshold itself without
allowing the investigation to proceed. We cannot agree
with the reasons provided under the impugned judgment
concerning certain factual assertions made by the
Respondents as to the condition of the deceased and
reasons for committing suicide because acceptance of
the said would not be in consonance with the settled
jurisprudence under Section 482 of CrPC as laid down
by various judgments of this Court."
The Apex Court in the case of CBI Vs. Arvind Khanna
reported in (2019) 10 SCC 686 in paragraph No.17 has held as
under:-
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
"17. After perusing the impugned order and on
hearing the submissions made by the learned senior
counsels 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 Cr.P.C.,
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 allegtions made by the
appellant-C.B.I., 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 Cr.P.C.
18. In our view, the assessment made by the High
Court at this stage, when the matter has been taken
cognizance by the Competent Court, is completely
incorrect and uncalled for."
In the case of Ramveer Upadhyay and Anr. Vs. State of U.P.
& Anr. passed in Special Leave Petition (Crl.) No.2953 of 2022,
Hon'ble Apex Court has held as under:-
".....Whether the allegations are true or untrue,
would have to be decided in the trial. In exercise of
power under Section 482 of the Cr.P.C., the Court does
not examine the correctness of the allegations in a
complaint except in exceptionally rare cases where it is
patently clear that the allegations are frivolous or do not
disclose any offence. ...."
Thus it is crystal clear that Section 482 of Cr.P.C. has been
incorporated to prevent abuse of process of law and not to
encourage the offence.
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
From perusal of the charge sheet and all other documents
filed alongwith the petition, it appears that prosecution case against
the petitioners are not only based upon memorandum statements
under section 27 of Evidence Act given by co-accused persons, but
prosecution also produced call details and tower location of the
present petitioners with other co-accused persons as a supporting
evidence. Statement of witness Ankush under section 161 of Cr.P.C.
is also significant to establish the connection of the present
petitioners with other co-accused persons in respect of
aforementioned offence. The uncontrovered facts prima facie
indicate towards the involvement of the petitioners in offence
punishable under section 34(2) of MP Excise Act 1915.
This court cannot make roving inquiry at this stage, but if the
uncontroverted allegations do not make any offence, only then this
Court can quash the FIR. Therefore, the claim of the petitioners
that there is no evidence available against them, cannot be accepted
at this stage.
In view of the prima facie evidence available on record
against the petitioners, this court is of considered view that it is not
a fit case where this Court can exercise the power conferred under
Section 482 of Cr.P.C.
Accordingly, this petition preferred under Section 482 of
Cr.P.C. is hereby dismissed. Before parting with this order it is made
clear that this Court has not expressed any opinion on the merits of
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
the case. The trial Court shall continue the trial against the applicant
without being influenced or prejudice by the observation made in
this order.
Certified copy as per rules.
(ANIL VERMA)
J U D G E
BDJ
Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 24-11-2022
17:45:45
