THE HIGH COURT OF MADHYA PRADESH
1
WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
Gwalior, Dated : 16.03.2018
Shri MPS Raghuvanshi, learned counsel for
the appellants.
Shri Raghvendra Dixit, learned Government
Advocate, for the respondent/State.
With the consent of learned counsel for the
parties, the matter is finally heard.
This appeal under Section 2(1) of Madhya
Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko
Appeal) Adhiniyam, 2005, is directed against the
order dated 02.01.2018 passed in Writ Petition
No.98/2017 whereby learned Single Judge has
negatived the challenge to the registration of
offences punishable under Sections 406, 418 and
511 of Indian Penal Code vide Crime No.391/15
dated 30.07.2015 at Police Station Cantt. Guna,
District Guna (M.P.).
Exception whereof was taken by the
appellants on the ground that they are falsely
implicated. It was contended that the genesis lay
in selection of the NGO Krantikala Sangam,
Morena, of which the appellants are the office
bearers, to manage the Children With Special
Need Hostel (CWSN), Guna, memorandum of
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
understanding whereof was signed on
01.06.2015.
It is contended that before a surprise
inspection on 26.07.2015 by the Assistant Project
Officer (Store Dept.), and Stenographer, District
Panchayat Officer Guna whereon it was found
that out of 38 Children only 19 children were
present, they were not given food as per menu,
the vegetables and grains were not stored, and
there was no alternative arrangement if the
electricity is not available (load shedding). The
petitioners had apprised of the infrastructural
shortcomings in the hostel vide letter dated
29.06.2015. That after inspection report the
petitioners were subjected to Show Cause Notice
by the Collector on 29.07.2015 seeking
explanation within seven days. And FIR was
lodged on 30.07.2015. The petitioners submitted
the reply on 04.08.2015 explaining that the
children are to be admitted by the District
Education officer and on the date of inspection
there was heavy rain and as the building roofs
had leaks the food stuff was stocked elsewhere
(Place not disclosed). The petitioners also sought
for release of Rs. One Lac.
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
Challenge to the FIR was on the ground that
no offence under Section 406 of IPC is made out.
Learned Single Judge relying on the
decision on “State of Madhya Pradesh Vs.
Rameshwar and others [(2009) 11 SCC 424]”
declined to cause an indulgence that there is no
bar to proceed under criminal law and that the
authorities are within their right in invoking the
criminal prosecution.
The verdict is questioned mainly on the
basis of the decision in “Indian Oil Corpn. Vs.
NEPC India Ltd. and others [(2006) 6 SCC
736]” and “Rajib Ranjan and others Vs. R.
Vijaykumar [(2015) 1 SCC 513]”.
In Indian Oil Corpn. (supra), Hon’ble
Supreme Court was concerned with the following
issues:
“(i) Whether existence or availment of
civil remedy in respect of disputes
arising from breach of contract, bars
remedy under criminal law?
(ii) Whether the allegations in the
complaint, if accepted on face value,
constitute any offence under Sections
378, 403, 405, 415 or 425 IPC?
Dwelling upon the first issue their Lordships
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
were pleased to hold:-
“16. The respondents, no doubt, have
stated that they had no intention to
cheat or dishonestly divert or
misappropriate the hypothecated
aircraft or any parts thereof. They have
taken pains to point out that the
aircrafts are continued to be stationed at
Chennai and Coimbatore Airports; that
the two engines of VT-NEK though
removed from the aircraft, are still lying
at Madras Airport; that the two DART
552 TR engines of VT-NEJ were
dismantled for the purpose of
overhauling/repairing; that they were
fitted into another aircraft (VT- NEH)
which had been taken on lease from M/s
Aircraft Financing and Trading BV and
that the said aircraft (VT-NEH) has been
detained by the lessor for its dues; that
the two engines which were meant to be
fitted to VT-NEJ (in places of the
removed engines), when sent for
overhauling to M/s Hunting Aeromotive,
U.K., were detained by them on account
of a dispute relating to their bills; and
that in these peculiar circumstances
beyond their control, no dishonest intent
could be attributed to them. But these
are defences that will have to be put
forth and considered during the trial.
Defences that may be available, or
facts/aspects when established during
the trial, may lead to acquittal, are not
grounds for quashing the complaint at
the threshold. At this stage, we are only
concerned with the question whether the
averments in the complaint spell out the
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
ingredients of a criminal offence or not.
17. The High Court was, therefore,
justified in rejecting the contention of
the respondents that the criminal
proceedings should be quashed in view
of the pendency of several civil
proceedings.”
(Emphasis Supplied)
As regard to verdict on Issue No.(ii) it has
no relevance in the case at hand wherein the
offences registered are under Sections 406, 418
and 511 of IPC.
The decision in Indian Oil Corpn. (supra),
thus, affirms the view of learned Single Judge.
In Rajib Ranjan and others (supra), the
Hon’ble Supreme Court was concerned with the
offence under Sections 120B, 468, 420, 500 IPC.
Their Lordships were pleased to observe:-
“24. Having regard to the circumstances
narrated and explained above, we are also
of the view that an attempt is made by the
respondent to convert a case with civil
nature into a criminal prosecution. In a
case like this, the High Court would have
been justified in quashing the proceedings
in exercise of its inherent powers under
Section 482 of the Code. It would be of
benefit to refer to the judgment in Indian
Oil Corpn. v. NEPC India Ltd. and others,
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
(2006) 6 SCC 736, wherein the Court
adversely commented upon this very
tendency of filing criminal complaints
even in cases relating to commercial
transaction for which civil remedy is
available or has been availed. The Court
held that the following observations of the
Court in this behalf are taken note of:
“13. While on this issue, it is necessary
to take notice of a growing tendency in
business circles to convert purely civil
disputes into criminal cases. This is
obviously on account of a prevalent
impression that civil law remedies are
time consuming and do not adequately
protect the interests of
lenders/creditors. Such a tendency is
seen in several family disputes also,
leading to irretrievable breakdown of
marriages/families. There is also an
impression that if a person could
somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. Any effort to
settle civil disputes and claims, which
do not involve any criminal offence, by
applying pressure through criminal
prosecution should be deprecated and
discouraged. In G. Sagar Suri v. State
of U.P., (2000) 2 SCC 636, this Court
observed: (SCC p. 643, para 8)
8. ……”It is to be seen if a
matter, which is essentially of a
civil nature, has been given a
cloak of criminal offence.
Criminal proceedings are not a
short cut of other remedies
available in law. Before issuing
process a criminal court has to
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
exercise a great deal of caution.
For the accused it is a serious
matter. This Court has laid
certain principles on the basis of
which the High Court is to
exercise its jurisdiction under
Section 482 of the Code.
Jurisdiction under this section
has to be exercised to prevent
abuse of the process of any
court or otherwise to secure the
ends of justice.”
14. While no one with a legitimate
cause or grievance should be
prevented from seeking remedies
available in criminal law, a
complainant who initiates or persists
with a prosecution, being fully aware
that the criminal proceedings are
unwarranted and his remedy lies only
in civil law, should himself be made
accountable, at the end of such
misconceived criminal proceedings, in
accordance with law. One positive step
that can be taken by the courts, to
curb unnecessary prosecutions and
harassment of innocent parties, is to
exercise their power under Section
250 CrPC more frequently, where they
discern malice or frivolousness or
ulterior motives on the part of the
complainant. Be that as it may.”
The appellants, in the given facts of present
case, are not benefited from the decisions in
Indian Oil Corpn. (supra) and Rajib Ranjan
and others (supra). As the FIR prima facie
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
indicated the mens rea and the criminal
culpability.
Section 406 IPC mandates:
“406. Punishment for criminal
breach of trust.–Whoever commits
criminal breach of trust shall be
punished with imprisonment of either
description for a term which may extend
to three years, or with fine, or with
both.”
Similarly Sections 418 and 511 IPC
respectively envisage:
“418. Cheating with knowledge that
wrongful loss may ensue to person
whose interest offender is bound to
protect.–Whoever cheats with the
knowledge that he is likely thereby to
cause wrongful loss to a person whose
interest in the transaction to which the
cheating relates, he was bound, either
by law, or by a legal contract, to protect,
shall be punished with imprisonment of
either description for a term which may
extend to three years, or with fine, or
with both.
511. Punishment for attempting to
commit offences punishable with
imprisonment for life or other
imprisonment.–Whoever attempts to
commit an offence punishable by this
Code with 1[imprisonment for life] or
imprisonment, or to cause such an
offence to be committed, and in such
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
attempt does any act towards the
commission of the offence, shall, where
no express provision is made by this
Code for the punishment of such
attempt, be punished with
2[imprisonment of any description
provided for the offence, for a term
which may extend to one-half of the
imprisonment for life or, as the case may
be, one-half of the longest term of
imprisonment provided for that offence],
or with such fine as is provided for the
offence, or with both.”
In FIR it is said:
lwpukdrkZ Jh ds-,y-xkS ftyk ifj;kstuk leUo;d
vf/kdkjh ftyk f’k{kk dsUnz xquk }kjk ,d ys[kh; vkosnu
i ykdj ,Q-vkbZ-vkj- ntZ djus fo”k;d is’k fd;k tks
vkosnu i etcwu ls izFke nz”V;k vi-/kkjk
406]418]511 Hkknfo dk ik, tkus ls izdj.k iathc) dj
foospuk esa fy;k x;k udy vkosnu i udy fuEu gSA
dk;kZy; ftyk f’k{kk dsUnz xquk ¼e-iz-½ dz-@ft-f’k-ds-
@vkbZbZMh@2015@684@xquk fnukad 29@7@2015 izfr
Fkkuk izHkkjh iqfyl Fkkuk dSaV ftyk xquk e-iz- fo”k;%
,Q-vkbZ-vkj- ntZ djus fo”k;d mijksDr fo”k;karxZr
ys[k gS fd loZ f’k{kk vfHk;ku varXkZr ukuk[ksM+h esa fu
%’kDr cPpksa gsrq 50 lhVj Nkkokl dk lapkyu
Lo;alsoh laLFkku dzkfrdyk laxe eqjSuk }kjk fd;k tk
jgk gSA Nkkokl dk lapkyu ftyk f’k{kk dsanz ,oa mDr
laLFkk ds e/; laikfnr ,e-vks-;w- fd ‘krksaZ ds vuqlkj o”kZ
201516 ds fy;s fd;k tkuk Fkk blds fy;s laLFkk dks
izFke fd’r ds :i esa nks yk[k ipkl gtkj :i;s iznku
fd;s x;s Fks laLFkk }kjk 1@7@2015 ls Nkkokl izkjaHk
fd;k x;k gS mDr Nkkokl dk fufj{k.k lgk;d
ifj;kstuk vf/kdkjh ¼LVksj ‘kk[kk½ ,oa LVsuksxkzQj ftyk
iapk;r xquk ds ny }kjk fnukad 26@07@2015 dks
la;qDr :i ls fd;k x;k ftlesa ntZ 38 cPpksa ds fo:)
19 cPps mi- ik;s x;s cPpks ds esU;w vuqlkj Hkkstu
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
forj.k ugha ik;kA [kk?k lekxhz i;kZIr ekk esa Hk.Mkj esa
ugha ik;k x;k rS;kj Hkkstu Hkh mifLFkr cPpksa ds eku
ls de gksuk ik;k x;k rFkk fo|qr dh vuqmiyC/krk dh
fLFkfr esa dksbZ oSdfYid O;oLFkk ugha FkhA fn-
27@07@2015 dks Jh lkftn elwn lgk- ifj;kstuk
leUo;d ¼ vkbZ-bZMh-½ ftyk f’k{kk dsUnz xquk }kjk Hkh
Nkkokl dk fufj{k.k fd;k x;k ftlesa iwooZr fLFkfr
ikbZ xbZ ftlls Li”V gS fd lapkyu drkZ laLFkk }kjk
‘kklu }kjk fu%’kDr cPpksa gsrq fu/kkZfjr jk’kh ,oa
lqfo/kkvksa Nkkokl esa ntZ cPpksa dks iznk; ugha djrs
gq;s izko/kkfur jk’kh ,oa lqfo/kkvksa dk nq:i;ksx fd;k
x;k ftlds dkj.k fu%’kDr cPps ‘kklu }kjk fn;s x;s
ykHk izkIr djus ls oafpr jgs mijksDr rF;ksa ds izdk’k esa
lacaf/kr Lo;a lsoh laLFkk ds lapkyudrkZvksa ds
fo:) ,Q-vkbZ-vkj- nTkZ dj vfxze vko’;d dk;Zokgh
djus dk d”V djsaA
Trite it is that an F.I.R is only an information
for setting the criminal machinery in motion. It
is not a punishment and is purely an
administrative act which does not warrant an
appropriate opportunity of hearing before
lodging a complaint.
In “Union of India Vs. W.N. Chadha [AIR
1993 SC 1082]” it has been observed:
“88. The principle of law that could be
deduced from the above decisions is
that it is no doubt true that the fact
that a decision, whether a prima facie
case has or has not been made out, is
not by itself determinative of the
exclusion of hearing, but the
consideration that the decision was
purely an administrative one and a full-
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
fledged enquiry follows is a relevant
and indeed a significant factor in
deciding whether at that stage there
ought to be hearing which the statute
did not expressly grant.
89. Applying the above principle, it
may be held that when the
investigating officer is not deciding any
matter except collecting the materials
for ascertaining whether a prima facie
case is made out or not and a full
enquiry in case of filing a report under
S. 173(2) follows in a trial before the
Court or Tribunal pursuant to the filing
of the report, it cannot be said that at
that stage rule of audi alteram partem
superimposes an obligation to issue a
prior notice and hear the accused
which the statute does not expressly
recognise. The question is not whether
audi alteram partem is implicit, but
where the occasion for its attraction
exists at all.
90. Under the scheme of Chap. XII of
the Code of Criminal Procedure, there
are various provisions under which no
prior notice or opportunity of being
heard is conferred as a matter of
course to an accused person while the
proceeding is in the stage of an
investigation by a police officer.
94. Under S. 235(2), in a trial before a
Court of Sessions and under S. 248(2)
THE HIGH COURT OF MADHYA PRADESH
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WA.192.2018
Shahrukh Khan and others
Vs.
State of M.P. and others
of the trial of warrant cases, the
accused as a matter of right, is to be
given an opportunity of being heard.
Unlike the above provisions which we
have referred to above by way of
illustration, the provisions relating to
the investigation under Chapter XII do
not confer any right of prior notice and
hearing to the accused and on the
other hand they are silent in this
respect.”
In view whereof, we find no discrepancy in
the impugned order as would warrant any
indulgence.
Consequently, appeal fails and is dismissed.
No costs.
( Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
pd
Digitally signed by
PAWAN DHARKAR
Date: 2018.03.22
10:27:14 -07’00’
