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Rama Shankar Mishra v/s State of U.P. Thru. Secy. Home Lko & Others

    Application U/s 482 No. 479 of 2021

    Decided On, 10 February 2022

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE SURESH KUMAR GUPTA

    For the Applicant: Piyush Kumar Singh, Advocate. For the Respondents: G.A.



Judgment Text

1. Heard learned counsel for petitioner and learned A.G.A. for the State and perused the material available on record.

2. By means of this petition under Section 482 Cr.P.C. the petitioner has prayed for a writ of certiorari quashing the summoning order dated 10.11.2020 passed by learned Judicial Magistrate, Kheri in Case No. 1998 of 2020 arising out of Case Crime No. 63 of 2020, under Section 406 IPC, Police Station Phoolbehad, District Kheri as well as charge sheet no. 182 of 2020 dated 07.06.2020 submitted by the police in the aforesaid case.

3. Learned counsel for petitioner has submitted that a false and frivolous FIR under Section 406 IPC was registered by the Assistant Development Officer (Cooperative) Block Phoolbehad, Kheri on 22.02.2020 with the allegation that the petitioner being In-charge of Paddy Purchase Centre, FSS Servayant Maineha and the petitioner purchased more than 100 quintal paddy from farmers in violation of purchase policy of paddy in purchase year 2019-20. After loding of the FIR, the Investigating Officer after completing the formalities of investigation filed charge sheet against the petitioner under Section 406 IPC.

4. Further submission is that no disclosed offence under Section 406 IPC is made out against the petitioner as the petitioner never entrusted in any manner any property nor he misappropriated any property nor converted to his own use. It is further submitted that if the prosecution story is accepted in toto then only the allegation against the petitioner is for violating the government purchase policy. The petitioner in violation of purchase policy purchased more than 100 quintals paddy. Further submission is that in this case five farmers sold more than 100 quintals paddy. During investigation, this fact is clearly established that the purchase price is totally paid to the farmers.

5. Even if the irregularity has been committed by the petitioner then in such circumstances, no criminal offence is made out against the petitioner. If the petitioner purchased paddy in violation of purchase policy, then only administrative or departmental action could be initiated against him. Thus the charge sheet as well as entire proceedings initiated against the petitioner is liable to be set aside.

6. Learned A.G.A. for the State has submitted that after investigation, charge sheet has been submitted against the petitioner and consequently cognizance order has been passed as such, prima facie offence is made out against the petitioner.

7. This Court perused the entire record. Perusal of FIR shows that the petitioner was the In-charge of Paddy Purchase Centre. As per purchase policy, it was the duty of the petitioner not to purchase more than 100 quintal. As per allegation made in the FIR it transpires that the petitioner purchased more than 100 quintals paddy. The petitioner violated the clear mandate of purchase policy of the government. Therefore, the petitioner has committed irregularity for purchase of paddy crops from agriculturists. Thus it amounts to dereliction of duty on the part of the petitioner. In this regard, departmental/ administrative action can be initiated against the petitioner.

8. The criminal breach of trust has been defined under Section 405 IPC, which reads as under:-

405.Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

A careful reading of Section 405 shows that the ingredients of a criminal breach of trust are as follows:-

i) A person should have been entrusted with property, or entrusted with dominion over property;

ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person t do so; and

iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such.

Entrustment is an essential ingredient of the offence. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code-

Section 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."

9. Perusal of the definition under Section 405 IPC shows that entrustment of the property as well as if the property is converted to his own use then the offence under Section 406 IPC is made out.

10. This Court in exercise of its jurisdiction under Section 482 Cr.P.C. is to examine whether the averments in the complaint constitute the ingredients necessary for an offence alleged under the Penal Code. If the averments taken on their face do not constitute the ingredients necessary for the offence, the criminal proceedings may be quashed under Section 482. A criminal proceeding can be quashed where the allegations made in the complaint do not disclose the commission of an offence under the penal Code. The complaint must be examined as a whole, without evaluating the merit of the allegations. Though the law does not require that the complaint reproduce the legal ingredients of the offence verbatim, the complaint must contain the basic facts necessary for making out an offence under the Penal Code.

11. Inherent power u/s 482 Cr.P.C. include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effet to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.

12. It is well settled that the inherent powers under section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and Not where a specific remedy is provided by the statute. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, especially when the applicant may not have availed of that remedy.

13. The case of the petitioner is squarely covered by the judgment of Hon'ble Apex Court in the case of Shafiya Khan alias Shakuntala Prajapati Vs. State of U.P. and Anr. passed in Criminal Appeal No(s). 200 of 2022 on 10.02.2022, wherein Hon'ble Apex Court in paragraph nos. 15 to 17 has held as under:-

15. The exposition of law on the subject relating to the exercise of the extra-ordinary power under Article 226 of the Constitution or the inherent power under Section 482 Cr.PC are well settled and to the possible extent, this Court has defined sufficiently channelized guidelines, to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. This Court has held in para 102 in State of Haryana v. Bhajan Lal (supra) 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 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 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 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."

16. The principles laid down by this Court have consistently been followed, as well as in the recent judgment of three Judge judgment of this Court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharasht

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ra and others AIR 2021 SC 1918. 17. It is no doubt true that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court 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 inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies." 14. In the given circumstances and going through the complaint on the basis of which FIR was registered and other material placed on record, we are of the considered view that no offence of any kind as has been alleged in the FIR, has been made out against the appellant and if we allow the criminal proceedings to continue, it will be nothing but a clear abuse of the process of law and will be a mental trauma to the appellant. 15. Consequently, petition under Section 482 Cr.P.C. is allowed. The criminal proceedings initiated against the petitioner in reference to FIR No. 63 of 2020, under Section 406 IPC, Polcie Station Phoolbehad, District Kheri are hereby quashed and set aside.
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