Rajasthan High Court

Babu Lal Sharma S/O Shri Om Prakash ... vs State Of Rajasthan on 11 April, 2022

Bench: Narendra Singh Dhaddha

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

      S.B. Criminal Miscellaneous (Petition) No. 6032/2019

Babu Lal Sharma S/o Shri Om Prakash Sharma, Aged About 52
Years, R/o Village Badharna, Behind Tejaji Mandir, P.s. Harmada,
Jaipur (Rajasthan)
                                                                   ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through P.p.
2.     Banwari Lal Sharma S/o Late Shri Damodar Prasad
       Sharma, R/o H.no. 29-30, Bajrang Colony, Prem Nagar,
       Khatipura Road, Jaipur.
                                                                ----Respondents

Connected With S.B. Criminal Miscellaneous (Petition) No. 4619/2019 Kamlesh Mittal S/o Late Shri Devi Sahay Mittal, R/o Plot No.a- 289, Nehru Nagar, Panipech, Jaipur, Raj.

----Petitioner Versus

1. State Of Rajasthan, Through Pp.

2. Banwari Lal Sharma S/o Late Shri Damodar Prasad Sharma, R/o Makaan No.29-30, Bajarang Colony, Prem Nagar, Khatipura Road, Jaipur, Raj.

----Respondents

For Petitioner(s) : Mr. Ram Manohar Sharma, Adv. For Respondent(s) : Mr. Mangal Singh Saini, PP Mr. Arvind Kumar Gupta, Senior Counsel with Mr. Rinesh Kumar Gupta, Adv.

HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

Order

ORDER RESERVED ON :: 07.04.2022 ORDER PRONOUNCED ON :: 11.04.2022

These instant criminal misc. petitions have been preferred by

the accused petitioners seeking quashing of FIR No.242/2016

registered at Police Station Jhotwara, Jaipur City (South) for the

Offences under Sections 420, 406, 457, 380 and 120-B IPC.

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Learned counsel for the petitioners submits that petitioners

and complainant are closed relative. Complainant has lodged the

present FIR against the petitioners on wrong facts. As per FIR, it is

lodged after inordinate delay of 4-5 months. Learned counsel for

the petitioners also submits that as per FIR, incident of

Vishvakarma, Jaipur but present FIR has been lodged in Police

Station Jhotwara. So, Police Station Jhotwara has no right to

conduct the investigation in this matter. Learned counsel for the

petitioners also submits that complainant in FIR levelled the

allegation of theft goods value of Rs.1,57,78,771/- but he has not

submitted any document regarding these goods. Learned counsel

for the petitioners also submits that after investigation, two times

FR were proposed but complainant had managed to change the

investigation and present Investigating Officer has wrongly found

the offence under Sections 453 and 380 IPC proved. Learned

counsel for the petitioners also submits that present FIR was

lodged after statement of Kamlesh which was recorded during the

proceedings under Negotiable Instruments Act. Learned counsel

for the petitioners also submits that there is no eye witness

regarding the offence. So, the present FIR be quashed against the

petitioners.

Learned Public Prosecutor as well as learned counsel for the

respondent have opposed the arguments advanced by learned

counsel for the petitioners and submitted that after investigation,

Investigating Officer has found the offence under Sections 453

and 380 IPC proved. They further submitted that proceedings

under Negotiable Instruments Act are pending since 2012 but the

present incident of 2016. They further submitted that previously,

Investigating Officer had given a negative final report due to

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pressure of petitioners. They further submitted that petitioners

had appeared before the concerned Investigating Officer for

investigation. They further submitted that petitioners went to

conclude the trial in proceedings under Section 482 Cr.P.C. So, the

petitions be dismissed.

I have considered the arguments advanced by learned

counsel for the petitioners as well as learned Public Prosecutor and

learned counsel for the respondent.

The Hon'ble Apex court has dealt with the proposition of law

pertaining to quashing of FIR/complaint/all criminal proceedings

initiated against an accused by High Court under Section 482

Cr.P.C. in catena of judgments. Particularly, in the case of

Prashant Bharti v. State of NCT of Delhi, reported in AIR

2013 SC 2753, Hon'ble the Supreme Court has held as under:

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure:

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

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(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal- proceedings, in exercise of power vested in it under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.

In the landmark decision of State of Haryana and Ors. Vs.

Ch. Bhajan Lal and Ors. [1992 Supp (1) SCC 335], the Apex court

has discussed the scope of powers of High Court to quash

FIR/complaint/all criminal proceedings under Section 482 Cr.P.C. in

detail and has determined such instances where FIR/complaint/all

criminal proceedings can be quashed. The relevant part of the

above-mentioned judgment reads as under:

105. 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 extra-ordinary 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 formula and to give an exhaustive

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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 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.

In the present case, as per contention, complainant has

lodged the present FIR after inordinate delay of 4-5 months and in

FIR, complainant stated that petitioners had taken goods of

Rs.1,57,78,771/- but during investigation, petitioners had not

submitted any document regarding these goods. In the present

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case, two times Investigating Officer had given opinion regarding

that the matter pertains to civil nature but on the influenced of

complainant, re-investigation was done. The present Investigating

Officer has found the offence against the petitioners under

Sections 453 and 380 IPC without any prime facie reason. A bare

reading of the FIR shows that the present FIR is not bona fide.