Rajasthan High Court - Jodhpur

Kailash Chandra vs State Of Rajasthan ... on 17 February, 2023

Bench: Kuldeep Mathur

[2023/RJJD/005866]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 3847/2021

Kailash Chandra S/o Sh. Jagga Regar, Aged About 48 Years, R/o Bangeda Ghatu, Teh. Nimbahera, Dist. Chittorgarh.

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

For Petitioner(s) : Mr. Kuldeep Singh Kumpawat For Respondent(s) : Mr. Shrawan Kumar, P.P.

HON'BLE MR. JUSTICE KULDEEP MATHUR Order

17/02/2023

By way of filing present criminal miscellaneous petition under

Section 482, Cr.P.C., the petitioner has prayed that FIR

No.0109/2020 lodged at P.S. Bassi, District Chittorgarh and

investigation initiated pursuant thereto may be quashed and set

aside to the extent it relates to the present petitioner.

Briefly stated facts of the case are that on 01.10.2020, the

contraband (opium) weighing 29kg 850gms was recovered by

Investigating Agency from the conscious possession of co-accused

Keshu Ram Banjara, Gopal Dhakkar and Pintu Banjara.

The co-accused Gopal Dhakkar during interrogation,

disclosed the name of the present petitioner under Section 27 of

the Evidence Act.

Learned counsel for the petitioner has submitted that the

petitioner has been falsely implicated in the case, solely on the

basis of the statements of co-accused Gopal Dhakkar. Learned

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counsel vehemently submitted that there is no iota of evidence

available on record which could connect him with the alleged

recovery of contraband, therefore, investigation qua him is

nothing but an abuse of process of law and deserves to be

quashed and set aside.

Per contra, learned Public Prosecutor submitted that during

investigation, the petitioner has been prima facie found to be

involved in the present case. It was submitted that co-accused

Gopal Dhakkar in his information under Section 27 of Evidence Act

has clearly stated that he had purchased 4kg opium from the

present petitioner. Learned Public Prosecutor submitted that

Whatsapp calls were made by co-accused Gopal Dhakkar to the

petitioner and he has also verified the places from where he had

purchased opium from the present petitioner. Learned counsel

submitted that prima facie a case under Section 8/29 of the NDPS

Act is made out against the petitioner, therefore, the present

criminal miscellaneous petitioner may be rejected by this Court.

Reliance was placed on the celebrated judgment of Hon'ble the

Apex Court delivered in the case of State of Haryana & Ors. vs.

Bhajan Lal reported in 1992 Supp.(1) SCC 335.

Heard learned counsel for the parties and perused the

material available on record.

Hon'ble the Supreme Court in the case of Bhajan Lal

(supra), issued certain guidelines wherein inherent powers under

Section 482 of the Cr.P.C. could be exercised either to prevent

abuse of process of any court or otherwise to secure the ends of

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justice. The relevant paras of the judgment in the case of Bhajan

Lal (supra) are reproduced herein below for ready reference:-

"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.

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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 oncerned 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.

109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

In the considered opinion of this Court, the disclosure

statements of co-accused Gopal Dhakkar and investigation made

pursuant thereto, do prima facies make out an offence against the

petitioner under Section 8/29 of the NDPS Act. The case does not

fall under any one of the categories of the cases formulated by

Hon'ble the Apex Court in the case of Bhajan Lal (supra) wherein

inherent powers under Section 482 Cr.P.C. should be exercised to

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quash the F.I.R. or the investigation pursuant thereto against the

petitioner.

In the result, the criminal miscellaneous petition filed by the

petitioner is dismissed.