@JUDGMENTTAG-ORDER
Satish K. Agnihotri, J.@mdashBy this petition, the petitioner prays for quashment of FIR (Annexure P-1) as well as the sanction order dated 26-12-2011 (Annexure P-2). Learned counsel appearing for the petitioner submits that the petitioner is working as Accountant in the Department of School Education and posted at Block Education Office Patan, Durg. On 19-11-2010, the petitioner gave an amount of Rs. 20,000/-to the respondent No. 5 towards loan, for which the respondent No. 5 executed an agreement (Annexure P-3) and assured that the same will be repaid after getting the retiral dues. The respondent No. 5 retired on 30-11-2010 and received the retiral dues on 22-12-2010 in the form of account payee cheque. Thereafter, the petitioner asked the respondent No. 5 to repay the loan amount. Instead of repaying the loan amount, the respondent No. 5 lodged a false complaint stating that the petitioner has demanded money for releasing the dues. The respondent No. 3 without verifying the authenticity of the complaint, proceeded against the petitioner on 12-1-2011 on the basis of written complaint dated 6-1-2011 filed by the respondent No. 5.
2. In fact, on 12-1-2011, the petitioner was on casual leave. On the said date, the respondent No. 5 asked the petitioner to come to the office of the Block Education Officer for repaying the loan amount and when the loan amount was given to the petitioner, the authorities of Anti Corruption Bureau caught the petitioner red handed and lodged FIR against the petitioner for commission of offence u/s 7 of the Prevention of Corruption Act, 1988. Thereafter, the petitioner was produced before the trial Court and released on bail.
3. Learned counsel further submits that the investigation is going on and during the course of investigation, the respondent No. 3 recorded the statement of Block Education Officer (for short "the B. E. O.") on 26-9-2011, in which the B. E. O. specifically stated that on 12-1-2011, the petitioner was on casual leave and the retiral dues were paid to the respondent No. 5 prior to lodging of complaint against the petitioner. The B. E. O. also stated in his statement (Annexure P-4) that the respondent No. 5 has never made any complaint against the petitioner. Learned counsel next submits that the sanction for prosecution against the petitioner has been granted vide order dated 26-12-2011, without considering the facts and circumstances of the case in its letter and spirit. The petitioner submitted several representations against the inaction on the part of the respondents authorities, but no action has been taken till date. Hence, this petition.
4. I have heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto.
5. In order to appreciate the scope and ambit of this Court under Article 226 of the Constitution of India in case of quashing of FIR, it is essential to reproduce the relevant extracts of the FIR, which reads as under :
(Vernacular matter omitted-----Ed.)
6. On considering the overall facts recorded in the FIR, as stated hereinabove and other documents, this is not a case, wherein, it can be held that no prima facie case has been made out, seeking interference of this Court when the investigation is going on.
7. The scope and ambit of jurisdiction of this Court under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973, are almost the same. The grounds, which have to be taken into consideration to quash FIR or complaint or charge-sheet or sanction at the initial stage before investigation or during investigation, have been detailed by the Supreme Court in umpteen number of cases.
8. The case of the petitioner cannot be examined at this stage, even it, the same leads to acquittal subsequently after investigation or trial, as the case may be. The Court should exercise its power under Article 226/227 of the Constitution in quashing FIR, complaint or charge-sheet or sanction in the rarest of rare cases. However, the Court would also not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It is the case where allegedly the petitioner was caught red handed while accepting the money, whether it was a case of bribe or refund of loan amount, is the subject-matter of investigation.
9. The Supreme Court in Asoke Basak v. State of Maharashtra and others, observed as under:
16. Before examining the merits of the rival submissions, it would be appropriate to briefly notice the scope and ambit of the jurisdiction of the High Court u/s 482 of the Code. It needs little emphasis that although the jurisdiction of the High Court under the said provision is very wide but it is not unbridled. The High Court is required to exercise its inherent powers u/s 482 of the Code sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice and to prevent abuse of the process of Court. One of the situations when the High Court would be justified in invoking its powers is where the allegations in the first information report or the complaint, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. (See R. P. Kapur v. State of Punjab and Rupan Deol Bajaj v. Kanwar Pal Singh Gill).
10. In V. P. Shrivastava v. Indian Explosives Limited and others (AIR 2011 SC (Cri) 2073), the Supreme Court observed as under
18. In G. Sagar Suri v. State of U. P. this Court had opined as follows : (SCC p. 643, para 8)
8. Jurisdiction u/s 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. 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 exercise a great deal of caution. For the accused it is a serious matter. This Court has laid down certain principles on the basis of which the High Court is to exercise its jurisdiction u/s 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.
11. In
12. Further, in para 70 it was held that:
70...It cannot be considered that this Court laid down as a proposition of law that in every case the Court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power u/s 482 or Article 226 to quash the proceedings or the charge-sheet. In Sirajuddin case the Madras High Court and this Court, though noticed serious infirmity committed in the course of investigation by the Investigating Officer did not quash the charge-sheet.
13. In
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 u/s 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 FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 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 u/s 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.
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.
14. In State of Maharashtra v. Ishwar Piraji Kalpatri the Supreme Court held as under:
24. The position of law, in this regard, has been very succinctly stated in the abovesaid case that at the stage of quashing a first information report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability of genuineness of the allegations made therein.
15. This Court in M/s. Matoshri Development v. State of Chhattisgarh observed as under:
27. Thus, prima facie offences have been made out for prosecuting the petitioners. This is not for this Court to examine the veracity or genuineness of the documents produced by the petitioners in support of the contentions advanced by Shri Tamaskar that they had not committed any offence. This is for the trial Court to consider the evidence of the petitioner No. 1 and its partners along with others after proper trial and come to a particular conclusion.
16. For the reasons mentioned hereinabove and applying the well settled principles of law to the facts of the present case, it is not a case wherein this Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to quash the FIR (Annexure P-1) as well as the sanction order dated 26-12-2011 (Annexure P-2). As an upshot, the writ petition is shorn of merit and is accordingly dismissed at the motion stage itself.
