Ipc 381 quashed

Excerpt:.Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal.”

From a perusal of the above order it is evident that it is a typed proforma where only information of case no, name of accused, section, Police Station, date and next date is to be filled by Magistrate. This very practice has been depreciated by the court in the case of Ankit Vs State of U.P. (supra). Though no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and therefore, in the present case, cognizance order is passed without any application of mind as the same does not reflect that the Magistrate has applied his mind to materials available and also whether the materials are sufficient to proceed against the applicant/accused.

 

 

Allahabad High Court
Avdhesh vs State Of Up And Another on 19 April, 2019
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Case :- APPLICATION U/S 482 No. - 13583 of 2019
 
Applicant :- Avdhesh
 
Opposite Party :- State Of Up And Another
 
Counsel for Applicant :- B.N.Singh,Santosh Kumar Singh
 
Counsel for Opposite Party :- G.A.,Chandra Jeet Singh,Ran Jeet Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.	
 
1.

Present Application under section 482 Cr.P.C has been preferred assailing the charge sheet dated 21.12.2018 filed in case crime No 346 of 2018 under section 381 IPC, PS Talbehat, District Lalitpur in the court of Chief Judicial Magistrate and also the order of cognizance dated 1.3.2019, whereby applicant has been summoned.

2. Heard Shri B.N.Singh, learned counsel for the Applicant, Shri Ranjeet Kumar, learned counsel for the Opp. Party No 2 and the Government advocate for Opp. Party No 1 and perused the record. The Application is decided with the consent of Advocates appearing on behalf of the parties finally at the stage of admission itself.

3. To go over the facts briefly, Smt Neelam, Opp Party No 2 lodged a First Information Report registered at Case Crime No 346 of 2018 on 31.8.2018 at Police Station Talbehat, Distt Lalitpur, the contents of which were that she had opened a shop in the name and style “Kushwaha Bore Wales” at Laitpur for boring machine. Applicant Avadesh and Dinesh were employed to look after the shop and machine. On 29.8.2018 when the complainant (Opp Party No 2) came to her office, boring machine was found missing. After assiduous efforts, it was revealed that these persons had stolen the machines during night.

4. During investigation, statements of complainant ( Opp Party No 2) Smt Neelam, Ratan Singh (witness), Pappu Rekhwaar (witness), Dashi Kushwaha (witness), Veer Singh (Witness) and Toran Singh (witness) were recorded.

5. During investigation, the applicant and Dinesh had approached this Court by way of filing Criminal Misc Writ Petition No 27265 of 2018 for quashing of First Information report. The co-ordinate Bench of this Court disposed of the said writ petition with the direction that the petitioner therein shall not be arrested till the submission of the Police report under section 173 (2) Cr.P.C.

6. The Investigating officer after conducting investigation submitted impugned charge sheet only against the applicant herein and not against the Dinesh who was also named in the First Information Report under section 381 IPC on 21.12.2008. Later-on, learned Chief Judicial Magistrate, Laitpur took cognizance of the offence and summoned the applicant under order dated 1.3.2019 which is also impugned in the present Application.

7. Learned counsel appearing on behalf of the Applicant forcefully argued that-

(I) On the basis of First Information report, and statements recorded during investigation, no offence , even prima facie, is made out against the applicant.

(II) No recovery of the alleged stolen boring machine has been made out.

(III) Applicant is brother-in-law (Jeeja) of the husband of the Opp Party no 2 and as there were some dispute amongst them and after death of husband of the Opp Party No 2, the applicant has been falsely implicated and nominated as accused in the present case.

(IV) The Opp Party no 2 in her statement recorded during investigation has improved upon her case and added new facts such as, applicant and Dinesh were employed at shop during the life time of husband of Opp Party and after his death, boring machines were given to applicant and Dinesh on rent of Rs 50000/- per month and about a sum of Rs 75000/- was also paid to Opp Party no 2. On 29.8.2018 when she went to her shop neither the boring machine nor these persons were traceable. Accordingly the learned counsel for the applicant submitted that such improvements shows that the entire story is false. If the version of the Opp party No 2 is considered to be true, then it would be a case of contract which is purely a civil dispute.

(V) The other witnesses whose statements were recorded during investigation, allegedly stated that the applicant was carrying boring machine and going towards Jhansi on 29.8.2018. However, they denied involvement of Dinesh. In this regard, the learned counsel for the applicant submitted that these witnesses were wholly unreliable and are making false statements.

(VI) The learned counsel for the Applicant submitted that ingredients of Section 381 IPC are not discernible as the Applicant was neither a clerk or a servant nor employed in the capacity of a clerk or servant and therefore the alleged theft of boring machine from the shop cannot be considered a theft from the possession of his master or employer. There is no relationship between the applicant and the Opposite Party no 2 as clerk or servant and master.

(VII) The Chief Judicial Magistrate has passed the order of cognizance dated 1.3.2019 without application of mind as the order is on an already printed proforma.

(VIII) The counsel further submitted that this Court in Ankit Vs State of U.P. and Another reported in J.I.C 2000 (1) 432, has held that such proforma orders cannot be upheld as the same are passed without application of judicial mind. The counsel further cited judgment passed by Apex Court in Pepsi Foods Limited Vs Special Judicial Magistrate (1997 LawSuit (S.C) 1340) wherein it has been held that summoning of an accused in a criminal matter is a serious business and order must reflect that Magistrate had applied his mind to the facts as well as law applicable thereto.

8. On the basis of these submissions, the learned counsel submitted that circumstances and facts of present case warrant interference of this Court under the inherent power provided under section 482 Cr.P.C, to quash the impugned charge sheet and impugned cognizance/summoning order.

9. Per contra, learned counsel for the Opp Party no 2 submitted that from the materials placed before the learned court below, prima facie case is made out against the applicant under section 381 IPC and the Court has rightly taken cognizance. Inherent power of the High Court should be exercised sparingly and only in exceptional circumstances. In the present case, accused was working as servant in the shop of husband of Opp Party no 2 and after the death of husband of Opp Party No 2, applicant continued to work as servant. However, he started paying money in lieu of work done by him and taking money from the clients as Opp Party being lady could not be able to take care of the shop on regular basis and as such ingredients of the offence under section 381 IPC are disclosed.

10. The learned counsel for the State further contends that prima facie offence is made out against the applicant and all submissions raised by applicant fall under the arena of disputed facts which cannot be decided under the proceeding of section 482 Cr.P.C

11. Considered the submissions raised on behalf of the rival parties and scanned the entire record.

Section 381 IPC being relevant is quoted below-

“381. Theft by clerk or servant of property in possession of master.–Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

From the above provision of section 381 IPC following three ingredients are discernible.

(a) The accused was employed in the capacity of clerk or servant.

(b) He committed theft in respect of alleged property.

(c ) Such property was in the possession of his employer.

12. Hon’ble Supreme Court in the matter of Fakhruddin Ahmad Vs State of Uttranchal and another reported in (2008) 17 SCC 157, discussed the expression “taking cognizance of an offence” by a Magistrate within contemplation of section 190 of the Cr.P.C and also discussed what must have been taken notice by the Magistrate while taking cognizance. Paras 13,14,15,16 and 17 being relevant are abstracted below.

“11.The next incidental question is as to what is meant by expression `taking cognizance of an offence’ by a Magistrate within the contemplation of Section 190 of the Code?

12.The expression `cognizance’ is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit Vs. State of West Bengal2, the word `cognizance’ has no esoteric or mystic significance in criminal law or procedure. It merely means–become aware 2 [1963] Supp. 1 S.C.R. 953 9 of and when used with reference to a Court or Judge, to take notice of judicially. Approving the observations of the Calcutta High Court in Emperor Vs. Sourindra Mohan Chuckerbutty3, the Court said that `taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.’

13.Recently, this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors.4, speaking through C.K. Thakker, J., while considering the ambit and scope of the phrase `taking cognizance’ under Section 190 of the Code, has highlighted some of the observations of the Calcutta High Court in Superintendent & Remembrancer of Legal Affairs, West Bengal Vs. Abani Kumar Banerjee5, which were approved by this Court in R. R. Chari Vs. State of U.P.6. The observations are:

3 (1910) I.L.R. 37 Calcutta 412 4 (2008) 2 SCC 492 5 A.I.R. (37) 1950 Calcutta 437 6 A.I.R. (38) 1951 SC 207 1 0 “7. … What is `taking cognizance’ has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) CrPC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156 (3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.”

14.From the afore-noted judicial pronouncements, it is clear that being an expression of indefinite import, it is neither practicable nor desirable to precisely define as to what is meant by `taking cognizance’. Whether the Magistrate has or has not taken cognizance of the offence will depend upon the circumstances of the particular case, including the mode in which the case is sought to be instituted and the nature of the preliminary action.

15.Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence.” (Emphasis supplied)

12. This Court in the matter of Ankit Vs State of U.P. And another reported in JIC 2010 (1) page 432 has held that-

” Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (4^) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind.”(Emphasis supplied)

14. Hon’ble Supreme Court in the matter of Vineet Kumar and others Vs State of Uttar Pradesh and another reported in (2017) 13 SCC, 369 while considering the issue of scope of section 482 Cr.P.C regarding quashing of criminal proceedings held in paras 22,23,24,25,26,27,28, and 29 as under:

“22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

“23. This Court time and again has examined scope of jurisdiction of High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three-Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699,held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 7 of the judgment following has been stated:

“7….In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”

24. The judgment of this Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482Cr.P.C. Although in the above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226 in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice.

25. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:

“102. In the backdrop of the interpretation of the various relevant provisions of the Codeunder 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 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.”

26. A three-Judge Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse. It further held that Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. Following was laid down in paragraph 6:

“6……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 aliquid alicui concedit, concedere videtur et id sine quo res ipsae 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. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.” Further in paragraph 8 following was stated:

“8…..Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal.”

25. In Sunder Babu and others vs. State of Tamil Nadu, 2009 (14) SCC 244, this Court was considering the challenge to the order of the Madras High Court where Application was under Section 482 Cr.P.C. to quash criminal proceedings under Section 498A IPC and Section 4 of Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case (supra) and held that the case fell within Category 7. Apex Court relying on Category 7 has held that Application under Section 482 deserved to be allowed and it quashed the proceedings.

25. In another case in Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, this Court relied on Category 7 as laid down in State of Haryana vs. Bhajan Lal(supra). In the above case the Allahabad High Court had dismissed an Application filed under Section 482Cr.P.C. to quash the proceedings under Section 494, 120-B and 109 IPC and Section 3 and 4 of Dowry Prohibition Act. After noticing the background facts and parameters for exercise of power under Section 482 Cr.P.C. following was stated in paragraphs 8 to 12:

“8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, the allegation is that the dowry torture was made sometime in 1992. It has not been explained as to why for more than two years no action was taken.

9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband’s mother’s sister, husband’s brother-in-law and Sunita’s father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6-12-1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1.

10. The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.

11. “19. The section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (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 recognises 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 aliquid alicui concedit, concedere videtur id sine quo res ipsa 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. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State 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 magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.” [See Janata Dal v. H.S. Chowdhary, Raghubir Saran (Dr.) v. State of Bihar and Minu Kumari v. State of Bihar, SCC p. 366, paras 19-20.]

12. The present case appears to be one where Category 7 of the illustrations given in State of Haryana v. Bhajan Lal is clearly applicable.

15. In the background of above mentioned facts and legal aspects, now I consider whether in the present set of facts prayer made by applicant for quashing of impugned charge sheet could be allowed or not.

16. The first issue is whether the Chief Judicial Magistrate has applied his mind before taking cognizance of the offence under section 381 Cr.P.C. The order of cognizance dated 1.3.2019 is annexed with the application as Annexure 6 and the same is quoted below.

 
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	(Underline is supplied to show where the space has been left and are filled later-on.)
 

From a perusal of the above order it is evident that it is a typed proforma where only information of case no, name of accused, section, Police Station, date and next date is to be filled by Magistrate. This very practice has been depreciated by the court in the case of Ankit Vs State of U.P. (supra). Though no detailed order is required to pass at the time of taking cognizance but the short cut adopted by the Magistrate is also not acceptable and therefore, in the present case, cognizance order is passed without any application of mind as the same does not reflect that the Magistrate has applied his mind to materials available and also whether the materials are sufficient to proceed against the applicant/accused.

17. The second issue for consideration is whether on the basis of materials available ingredients of section 381 IPC is prima facie disclosed.

I have already enumerated the ingredients of section 381 IPC in para 10 of this judgment. Considering the materials available, there is no material to show that accused was employed in the capacity of servant or clerk with the Opp Party no 2/complainant. Secondly, the machine was not in possession of the Opp Party no2. Therefore, the alleged theft is not from the possession of the Opp party no 2. Therefore, in the present case essential ingredients of section 381 IPC are absent. In this background it is difficult to arrive at a conclusion that in the present matter even prima facie case is made out against the applicant under section 381 IPC.

18. The last issue is whether in the facts and circumstances of the present case, the Court could quash the charge sheet under its inherent power under section 482 Cr.P.C.

There is no doubt that this Court could exercise its inherent jurisdiction under section 482Cr.P.C (I) to make such orders as may be necessary to give effect to any order under the code of criminal Procedure or (ii) to prevent abuse of the process of any court or (iii) otherwise to secure ends of justice.

19. In the present case, neither the concerned Magistrate has applied mind before taking cognizance of offence and rather passed an order in the form of proforma order, nor on the basis of materials available, even prima facie ingredients of section 381 IPC are disclosed and therefore, in my considered opinion, present case is squarely covered by category (c) of the judgment passed in the case of State of Haryana And Ors vs Ch. Bhajan Lal And Ors(supra), which states that-

“(c) where the uncontroverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused;

20. In view of the above discussion to secure the ends of justice and to prevent abuse of the process of court below, present is a fit case to exercise the inherent jurisdiction of the court provided under section 482 Cr.P.C to prevent abuse of process of lower court as well as to secure ends of justice. For disposal of the present case para 34 of the judgment passed by Supreme Court in Anand Kumar Mohatta Vs State of NCT of Delhi 2018 SCC on-line 2447 is also very useful and the same is quoted hereinafter.

“34. It is necessary here to remember the words of this Court in State of Karnataka v. L. Muniswamy and others which read as follows: –

“7. …..In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is 6 1977 (2) SCC 699 14 designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice…..”

21. While exercising such power, the impugned charge sheet is quashed and the present application is allowed.

MH Dated April 19, 2019 (Saurabh Shyam Shamshery,J.)

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