Unknown vs ) Prima Facie Looking To The Fir
2023 Latest Caselaw 1198 UK

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                                 C482 No.775 of 2023
                                 With
                                 IA/1/2023 (For Stay Application)
                                 Hon'ble Sharad Kumar Sharma, J.

Mr. Navneet Kaushik, learned counsel for the applicants.

Mr. A.K. Sah, learned Deputy Advocate General along with Ms. Mamta Joshi, learned Brief Holder for the State.

The challenge as given by the applicants in the instant C482 application, is to the cognizance order dated 21.02.2023, as it was passed by the court of Judicial Magistrate Ist, Haridwar, District Haridwar in Criminal Case No.669 of 2023, "State Vs. Rajnish and Others", for the alleged involvement of the present applicants for the commission of offences under Sections 420, 506 of IPC as registered against the applicants at P.S. Kotwali Ranipur, District Haridwar.

If the allegations levelled in the FIR are taken into consideration, in fact, the applicants are accused of, that they claiming themselves to be members of the Tourism Board and they contended, and portrayed that since they hold a very high post in a political party, they on an exchange of certain money which has been referred to in the FIR would be able to make the complainant as a Minister in the ruling party.

On the cognizance being taken, the Criminal Case has been registered as against the present applicant. What has been attempted to be argued by the learned counsel for the applicants is that:-

1) Prima facie looking to the FIR, in fact, it cannot be even presumed of that there could be any offence under Section 420 and 506 of IPC, which could at all be made out against the present applicant because the story as developed by the complainant is absolutely unbelievable because exchange of money, exclusively cannot be the basis for inducing a person to make him as a Minister in a political party.

2) Secondly, he submits for the purposes of culling out an offence as complained of in the FIR, that if the statement under Section 161 Cr.P.C is taken into consideration by this Court, no prima facie, offence is made out against the present applicants.

This Court is of the view that for making out any criminal offence against an accused, the Courts exercising its inherent powers under Section C482 Cr.P.C. are not at all required to venture into the appreciation of the factual merits of the allegations levelled in the FIR or the evidence to arrive at a conclusion as to whether, prima facie, an offence is made out or not because that would not be the scope of the High Court to appreciate an evidence and then draw its conclusion in relation to an allegation levelled in the FIR.

All these issues as to whether, what are the sanctity of an allegations levelled in the FIR and what truthfulness it carries it will yet again be an issue to be decided by the Trial and that is what has been consistently laid down by the Hon'ble Apex Court in some of the judgments, which are referred hereunder:-

State of Odisha Vs. Pratima Mohanty as reported in AIR 2022 SC 41, wherein the Hon'ble Apex Court has observed, that the High Court exercising powers under Section 482 Cr.P.C. is not supposed to conduct a pre-trial by appreciating an evidence in order to come to a conclusion as to whether at all an offence is made out or not. The aforesaid reference has been made in paragraph no.6 of the said judgment, which is extracted hereunder:-

"6. At the outset, it is required to be noted that by the impugned judgment and order the High Court in exercise of its powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B IPC. From the impugned judgment and order passed by the High Court, it appears that the High Court has entered into the merits of the allegations and has conducted the mini trial by weighing the evidence in detail which, as such, as observed and held by this Court in a catena of decisions is wholly impermissible. As held by this Court in the case of State of Haryana And Ors. vs Ch. Bhajan Lal And Ors., AIR 1992 SC 604, the powers under Section 482 Cr.P.C. could be exercised either to prevent an abuse of process of any court and/or otherwise to secure the ends of justice. In the said decision this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule are carved out in para 102 in Bhajan Lal (supra) which reads as under:

"102. 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 channelized 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 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 noncognizable 42 PART E 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."

6.1 Looking to the allegations in the present case against the respondents - accused and considering the fact that chargesheet has been filed by the Vigilance Cell after a thorough investigation, it cannot be said that the case falls within any of the exceptions as carved out by this Court in para 102 in the case of Bhajan Lal (supra). It cannot be said that the criminal proceedings initiated against the respondents - accused are an abuse of process of any court. On the contrary, the allegations are an instance of abuse of the powers with a mala fide intention and allotment of the plots to the family members by hatching a criminal conspiracy and to allot the plots to the family members at throw away price causing loss to the B.D.A. and the public exchequer.

6.2 It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 Cr.P.C. when after a thorough investigation the charge sheet has been filed. At the stage of discharge and/or considering the application under Section 482 Cr.P.C. the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducing the mini- trial. As held by this Court the powers under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court.

6.3 In the present case the allegations were with respect to allotment of 10 plots which were required to be allotted under the discretionary quota. It is not in dispute that at the relevant time the respondents - accused were connected with the Department concerned with regard to allotment of the plots directly or indirectly. Accused No.4 Smt. Pratima Mohanty was serving as Steno to Vice- Chairman, B.D.A. As per the case of the prosecution an undated application for allotment of plots on plain paper was received from Shri Pradyumna Kumar Mohanty, brother of the accused Smt. Pratima Mohanty. It is also the case on behalf of the prosecution that though the plot was applied in the name of her brother, after the allotment of the plot she is in possession of the same. So far as accused No.5 - Shri Prakash Chandra Patra is concerned, as per the case on behalf of the prosecution, an application on plain paper for allotment of plot of Ms. Rajalaxmi Samal, sisterinlaw of the respondent - Shri Prakash Chandra Patra (accused No.5) was forwarded by the Minister of Housing Urban Development - Mr. Samer Dey (accused No.6) to Shri P.K. Pattanaik, Secretary, B.D.A. It is noted that at the relevant time the said accused was working as Jr. Assistant, Allotment Section, B.D.A. Pursuant to the aforesaid application the sisterinlaw of the said accused has been allotted a plot. So far as accused No.3 Rajendra Kumar Samal is concerned, as per the case of the prosecution and as alleged, an application was made for allotment of plot in favour of his wife who was Dealing Assistant, Allotment Section II, B.D.A. and Personal Assistant to Minister, Housing and Urban Development. It is noted that even the then Minister is the original accused No.6. As per the allegation the application was without any date and on the basis of such undated application, the plot has been allotted in favour of his wife."

Recently, the Hon'ble Apex Court had an occasion to deal with a similar issue in Criminal Appeal No.1025-1026 of 2023, Central Bureau of Investigation Vs. Aryan Singh where yet again the Hon'ble Apex Court vide its judgment of 10.04.2023 had made a similar observation in paragraph no.4.2 that even it is a case of malicious prosecution then too the High Court is not supposed to conduct a pre-trial while appreciating the evidence in order to meet out the allegations made in the FIR.

In that eventuality and for the reasons assigned above, since the learned counsel for the applicants has attempted to address the Courts on merits of the matter to engage its consideration about the set of allegations by appreciating the evidence which is not a scope of C482.

The C482 application lacks merits and the same is, accordingly, stands dismissed.

(Sharad Kumar Sharma, J.) 01.05.2023 Sukhbant