Surendra Singh & Ors vs State on 18 May, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 346 / 2017

1. Surendra Singh Nunia S/o Shri Prahalad Ram

2. Tejpal Nunia S/o Shri Prahalad Ram

3. Mahesh Kumar S/o Shri Suresh Kumar,
All R/o Village Nunia Gothda, Tehsil Baggad, District Jhunjhunu
(presently All Lodged In District Jail, Jhunjhunu)

—-Petitioners
Versus
The State of Rajasthan

—-Respondent
__
For Petitioner(s) : Mr.G.R.Punia, Senior Advocate assisted by
Mr.Man Prakash Choudhary
For Respondent(s) : Mr.M.S.Panwar PP for the State.
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
18/05/2017

1. This criminal misc. petition under Section 482 Cr.P.C.

has been preferred in the matter of charge-sheet No.257/2016

filed against the petitioners in FIR No.04/2012 registered at Police

Station, Sangariya in the Court of learned Additional Chief Judicial

Magistrate, Sangariya for the offences under Sections 420, 406

and 34 IPC and Sections 4, 5 6 of the Prize Chits and Money

Circulation Schemes (Banning) Act, 1978 (hereinafter referred to

as ‘the Act of 1978’) and in the matter of proceedings in Criminal

Case No.616/2016 pending the Court of learned Additional Chief

Judicial Magistrate, Sangariya.

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2. The complainant filed a complaint before the learned

Additional Chief Judicial Magistrate, Sangariya on 04.01.2012

regarding a scheme being launched by the petitioners with the

name “Preeya Home Study Pvt. Ltd.”. The agents of the Company,

as per the allegation levelled, lured the complainant into making

certain payment and the same was to be paid back in multiple

form as per the proper receipt provided by the Company. A

Membership Certificate and receipt of the amount were issued by

the Company, of which the petitioners are the office bearers.

3. Since the amount was not paid in accordance with the

promise to pay back, as per the complainant, which was

Rs.60,000/-, the complaint was filed. The investigation took place

and the FIR was registered by the concerned police station on

04.01.2012, and the offences under Sections 420 and 406 IPC

were investigated. Thereafter, a negative final report was

submitted at one stage. However, upon re-investigation, the

offences under Sections 420, 406 120B IPC and Sections 4, 5

6 of the Act of 1978 were found to be proved against the

petitioners.

4. In repeated investigation, the stand of the prosecution

was changed many a times. However finally, the investigation

culminated into filing of the charge-sheet under Sections 420, 406

34 IPC and Sections 4, 5 6 of the Act of 1978. The petitioner

has challenged the said charge-sheet on account of the fact that

similar FIRs have been lodged by other complainants and due to

multiplicity of the complaints, the petitioners are suffering the
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investigation going on at various places by various authorities.

5. Learned Senior Counsel, Shri G.R.Punia assisted by

Shri Man Prakash Choudhary appearing on behalf of the

petitioners has argued that the Income Tax Department had found

that the affairs of the Company were in order, and therefore, no

dereliction of the laws of Taxation has been done by the Company

against the complainant.

6. Learned Senior Counsel for the petitioners also argued

that the multiple FIRs have been lodged and different investigating

authorities have, at various times, drawn different conclusions

with regard to the charges levelled. It was also stated that in

some of the conclusions, the final report submitted by the

prosecution has already been accepted by the competent court,

and therefore, the matter falls within the ambit of Section 300

Cr.P.C., which provides that a person who has once been tried by a

Court of competent jurisdiction for an offence and convicted or

acquitted of such offence shall, while such conviction or acquittal

remains in force, not be liable to be tried again for the same

offence, nor on the same facts.

7. Learned Senior Counsel for the petitioners has also

drawn the attention of this Court towards Section 6 of the Indian

Evidence Act, in which the relevancy of facts forming part of same

transaction has been defined, and as per learned Senior Counsel

for the petitioners the transaction was same and once so many

complaints have been lodged, either they should have been

investigated under a common umbrella of the investigating
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authority, or once the outcome of one of the FIRs of the same

nature was clear, then the same outcome ought to have been

followed.

8. Learned Senior Counsel for the petitioners emphasized

upon the principle of res gestae and has cited the precedent law

laid down by the Hon’ble Apex Court in Sathish Mehra Vs. State

of N.C.T. of Delhi Anr., reported in 2013 Cri.L.J. 411.

Relevant para 15 of the said judgment is as follows:-

“15. The power to interdict a proceeding either at the
threshold or at an intermediate stage of the trial is
inherent in a High Court on the broad principle that
in case the allegations made in the FIR or the
criminal complaint, as may be, prima facie doe not
disclose a triable offence there can be no reason as
to why the accused should be made to suffer the
agony of a legal proceeding that more often than not
gets protracted. A prosecution which is bound to
become lame or a sham ought to interdicted in the
interest of justice as continuance thereof will amount
to an abuse of the process of the law. This is the core
basis on which the power to interfere with a pending
criminal proceeding has been recognized to be
inherent in every High Court. The power, though
available, being extra-ordinary in nature has to be
exercised sparingly and only if the attending facts
and circumstances satisfies the narrow test indicated
above, namely, that even accepting all the
allegations levelled by the prosecution, no offence is
disclosed. However, if so warranted, such power
would be available for exercise not only at the
threshold of a criminal proceeding but also at a
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relatively advanced stage thereof, namely, after
framing of the charge against the accused. In fact
the power to quash a proceeding after framing of
charge would appear to be somewhat wider as, at
that stage, the materials revealed by the
investigation carried out usually comes on record and
such materials can be looked into, not for the
purpose of determining the guilt or innocence of the
accused but for the purpose of drawing satisfaction
that such materials, even if accepted in its entirety,
do not, in any manner, disclose the commission of
the offence alleged against the accused.”

9. As per learned Senior Counsel for the petitioners, the

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aforecited precedent law reflects that the stage of filing of the

charge-sheet is an appropriate stage, where inherent jurisdiction

under Section 482 Cr.P.C. could be invoked. Learned Senior

Counsel also referred to the precedent law laid down by the

Hon’ble Apex Court in T.T. Antony Vs. State of Kerala Ors.

reported in (2001) 6 SCC 181, wherein multiple prosecution, of a

person, on the same grounds, on the same facts, in the same

chain of events, as a part of the same transaction, has been

deprecated by the Hon’ble Apex Court.

10. Learned Senior Counsel for the petitioners also pointed

out that the provisions of the Act of 1978, in which the charge-

sheet has been filed, do not apply in the present case, as the

petitioners fell well within the ambit of the Act while conducting

the transactions of the Company. The Company was simply

providing computer education with certain incentives, which is not

prohibited in law, and therefore, the Company could not have
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been deprived of doing its lawful business, leaving aside the

criminal prosecution.

11. Learned Senior Counsel for the petitioners also argued

that the provisions of Sections 420 and 406 IPC should not have

been attracted at the same time, as both the provisions of law

have diametrically opposite dimensions, as Section 420 IPC arises

out of a belief of a person, whereas Section 406 IPC deals with a

breach of that belief, and therefore, both ought not to be applied

in the same chain of events in the present case.

12. Learned Senior Counsel for the petitioner also argued

that the State Government has taken a view vide letter dated

03.01.2014, whereby it was decided that the investigation shall

take place in a uniform manner under one particular agency, and

therefore, conducting of the investigation at various locations was

prejudicing the case of the petitioners, as they were being put to

the investigation at various locations by frequently transferring it

from one place to another, which is not only a harassment, but

also an abuse of the process of law.

13. Learned Senior Counsel for the petitioners also pointed

out that in similar circumstances, the petitioners have been

acquitted. Learned Senior Counsel also emphasized that one such

acquittal, as happened, shall have bearing on the present case.

14. Learned Public Prosecutor, Shri M.S.Panwar states that

without going into the merits of the case also, at the threshold the

present misc. petitions ought not to be entertained, as it is a

settled principle of law laid down by the Hon’ble Apex Court that
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once charge-sheet has been filed, the appropriate recourse

available to the accused is that he should challenge the charge-

sheet before the competent court, who shall be empowered to act

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strictly in accordance with law and dealt with the charge-sheet

and all the submissions, which have been made by the accused.

15. Learned Public Prosecutor has cited the precedent law

laid down by the Hon’ble Apex Court in K.Neelaveni Vs. State

Rep. by Insp. of Police Ors. [Criminal Appeal No.574 OF

2010 (arising out of SLP(Crl.)No.3562 of 2009) decided on

22.03.2010], wherein in para 10, it has been held as under:-

“It seems that accused persons approached the High
Court for quashing of the charge-sheet even before
any order was passed by the Magistrate in terms of
Section 190 of the Code of Criminal Procedure. In our
opinion, when a report is submitted to the Magistrate
he is required to be prima facie satisfied that the facts
disclosed therein constitute an offence. It is trite that
the Magistrate is not bound by the conclusion of the
investigating agency in the police report i.e. in the
charge-sheet and it is open to him after exercise of
judicial discretion to take the view that facts disclosed
in the report do not constitute any offence for taking
cognizance. Quashing of Sections 406 and 494 of
Indian Penal Code from the charge-sheet even before
exercise of discretion by the Magistrate under Section
190
of the Code of Criminal Procedure is undesirable.
In our opinion, in the facts and circumstances of the
case, quashing the charge-sheet under Sections 406
and 494 of the Indian Penal Code at this stage in
exercise of the power under Section 482 of the Code
of Criminal Procedure was absolutely uncalled for.”

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16. Learned Public Prosecutor also cited the precedent law

laid down by the Hon’ble Apex Court in The State Rep. by the

Inspector of Police, Q Branch C.I.D., Tirunelveli Range,

Tamil Nadu, reported in (2015) 9 SCC 294 and emphasized

upon the following relevant para 103 of the judgment:-

“103. 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 FIR 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.” (88) As far as S.B. Johari (Supra)
case is concerned, following proposition of law is laid
down:

“4. In our view, it is apparent that the entire
approach of the High Court is illegal and erroneous.

From the reasons recorded by the High Court, it
appears that instead of considering the prima facie
case, the High Court has appreciated and weighed
the materials on record for coming to the
conclusion that charge against the respondents
could not have been framed. It is settled law that
at the stage of framing the charge, the court has to
prima facie consider whether there is sufficient
ground for proceeding against the accused. The
court is not required to appreciate the evidence
and arrive at the conclusion that the materials
produced are sufficient or not for convicting the
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accused. If the court is satisfied that a prima facie
case is made out for proceeding further then a
charge has to be framed. The charge can be
quashed if the evidence which the prosecutor
proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is
challenged by cross-examination or rebutted by
defence evidence, if any, cannot show that the
accused committed the particular offence. In such
case, there would be no sufficient ground for
proceeding with the trial. In Niranjan Singh Karam
Singh Punjabi v. Jitendra Bhimraj Bijjayya
, (1990)
4 SCC 76, after considering the provisions
of Sections 227 and 228 CrPC, the Court posed a
question, whether at the stage of framing the
charge, the trial court should marshal the materials
on the record of the case as he would do on the
conclusion of the trial. The Court held that at the
stage of framing the charge inquiry must
necessarily be limited to deciding if the facts
emerging from such materials constitute the [pic]
offence with which the accused could be charged.

The court may peruse the records for that limited
purpose, but it is not required to marshal it with a
view to decide the reliability thereof. The Court
referred to earlier decisions in State of Bihar v.
Ramesh Singh
, (1977) 4 SCC 39, Union of India v.
Prafulla Kumar Samal
,(1979) 3 SCC 4 and Supdt.
Remembrancer of Legal Affairs, W.B. v. Anil
Kumar Bhunja
,(1979) 4 SCC 274 and held thus:
(SCC p. 85, para 7) “From the above discussion it
seems well settled that at the Sections
227-
228 stage the court is required to evaluate
the material and documents on record with a view
to finding out if the facts emerging therefrom taken
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at their face value disclose the existence of all the
ingredients constituting the alleged offence. The
court may for this limited purpose sift the evidence
as it cannot be expected even at the initial stage to
accept all that the prosecution states as gospel
truth even if it is opposed to common sense or the
broad probabilities of the case.”

(emphasis supplied)”

17. Learned Public Prosecutor also stated that if any

decision has been taken by the State, then the petitioner shall be

at liberty to take up the issue of pursuing such decision, but this

cannot become a ground for any interference under the inherent

jurisdiction under Section 482 Cr.P.C.

18. Learned Public Prosecutor also stated that the FIR

constituted different facts and the complainants were different,

and therefore, the promises made were different, and it cannot be

said that the petitioners have absolutely no case against them.

Learned Public Prosecutor also stated that in the case of Sahara

India being dealt with by the Hon’ble Apex Court, the Company

had abused the legal process of law to illegally detain the amount

of the public at large, and therefore, the Hon’ble Apex Court is

taking a serious view of the matter and making all efforts to get

the money refunded to the public at large, who had invested their

precious money in the said Company.

19. Learned Public Prosecutor however, stated that the

relevant provisions of the IPC as well as the Act of 1978 are well

justified in the charge-sheet, and prima facie, it has been found by

the investigating agency that the offences are made out, and
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therefore, at this stage, there should be no interference by this

Court.

20. After hearing the learned counsel for the parties as well

as perusing the record of the case alongwith the precedent laws

cited at the Bar, this Court is of the opinion that once the charge-

sheet has been filed, then it would not be appropriate to invoke

the inherent jurisdiction under Section 482 Cr.P.C., as prima facie,

the case has already been found to be proved by the prosecution,

and once such prima facie case has been found to be made out,

then it was an appropriate stage, where the petitioners could raise

all their objections before the learned court below at the time of

framing of charge. The ambit of redressal at the time of framing of

charge is immense and as per the precedent law cited by learned

counsel for the parties, it would be an appropriate case, where all

these propositions of facts and law cited by learned counsel for the

petitioners could be considered by the learned court below at the

time of framing of charge and appropriate decision would be

arrived at.

21. Moreover, this Court does not find the present case to

be within the ambit of rarest of rare cases, where the sparing

powers under Section 482 Cr.P.C. ought to be invoked, more

particularly, when the charge-sheet has already been filed by the

prosecution.

22. The precedent laws cited by learned Senior Counsel for

the petitioners are not applicable in the present case, as the prima

facie satisfaction of the prosecution has been recorded and the
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same has been reflected in the record of the charge-sheet.

23. The precedent law cited by the learned Public

Prosecutor is however, applicable in the present case, as it lays

down boundations and parameters, under which powers envisaged

under Section 482 Cr.P.C. ought to be invoked in such cases. The

facts of the present case do not warrant such extraordinary

interference at this stage.

24. Consequently, the present misc. petition is dismissed.

The stay application also stands disposed of. However, the

petitioners shall be at liberty to raise all their issues before the

learned court below at the appropriate stage, who shall consider

the same dispassionately, without prejudice to the present order.

It is also made clear that the petitioners shall be at liberty to

appropriate the appropriate forum for consolidation of the

investigation and the complaints made against them.

(DR. PUSHPENDRA SINGH BHATI)J.

Skant/-

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