1 CWP No.4338/2005 (6.8.2008) IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL WRIT PETITION NO. 4338/2005 Raj Kishore Brijwasi Versus The State of Rajasthan and another Date of order ::: August 06, 2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.B.L. Sharma, for the petitioner Dr.A.S.Khangarot, Addl. GA and Dr.Shyam Sharma, Dy. GA for the State of Rajasthan BY THE COURT By this writ petition, the petitioner has prayed for quashing of the FIR No.181/2004 registered at Headquarter, Anti Corruption Bureau, Jaipur City-II under section 7, 13(1) (d)(2) of the Prevention of Corruption Act, 1988 as also the investigation. During the course of arguments, it was submitted by both the parties that challan in the present case has been filed but because the proceedings have been stayed, therefore, the case could not be proceeded further. Briefly stated, facts of the case, as per the petitioner, are that in the month of January, 2003 the petitioner asked the respondent No.2 Ramjilal to suggest the name of some Carpenter who could make some furniture upon which respondent No.2 said that he himself will make the furniture and Rs.5500/- were settled for preparing the wooden furniture – two speaker column, one table and three gates of Zallee. On 8.3.2003, the respondent No. 2 came at the house 2 CWP No.4338/2005 (6.8.2008) of the petitioner along with one Sita Ram and handed over to him two speaker column and one table. The respondent No.2 directed said Shri Sitaram to take measurement of the gates. On the same day,the respondent No.2 received the entire amount of work i.e. Rs.5500/- from the petitioner and issued a receipt thereof. The respondent No. 2 assured the petitioner that the gates will be supplied to him soon. Thereafter, the respondent No.2 neither supplied the remaining furniture i.e. Gates nor returned the money of gates i.e. Rs.3,000/- and therefore, the petitioner sent a legal notice to the respondent No.2 through his Advocate Premi Chitranjan Pradeep Sharma on 2.7.2003 Under Postal Certificate. The petitioner further averred in the writ petition that the respondent No.2 being annoyed with the notice as aforesaid, lodged a false complaint to the Addl. SP Anti Corruption Bureau, Jaipur City (Ist) on 11.7.2003 in which it was alleged that in FIR No.327/99 u/s 147, 148, 149, 379, 323 and 452 IPC registered at Police Station Chandwaji, Distt. Jaipur the police had submitted the charge sheet against the accused persons and Criminal Case No.35/2000 was pending before the Judicial Magistrate First Class, Jaipur Distt. Jaipur. In the complaint, the respondent No.2 further stated that the petitioner was demanding illegal gratification for properly prosecuting the the case on behalf of the prosecution and that on 9.7.2003 when the respondent No.2 contacted the petitioner on phone to inquire the date of the aforesaid case the petitioner told that he might come to 3 CWP No.4338/2005 (6.8.2008) Jaipur. The respondent No.2 allegedly met the petitioner on 11.7.2003 at 11 a.m. and the petitioner demanded Rs.3100/- plus Rs.500/- as bribe for properly prosecuting the said case. He did not want to give bribe to the petitioner and therefore, wanted to get him caught red handed. On 14.7.2003 the petitioner was trapped by the Anti Corruption Bureau officials and a sum of Rs.1000/- was recovered from the possession of the petitioner. It is further stated in the writ petition that in the complaint dated 11.7.2003 made by the respondent No.2 it was alleged that the petitioner had demanded illegal gratification of Rs.3100/- plus Rs.500/- and that there was no such allegation that earlier to it any bribe amount was received by the petitioner from the complainant. The respondent No.1 has filed reply to the writ petition and submitted that in the present case investigation was done in a proper manner and therefore, it is a criminal case to be tried by the trial court. The respondent No.2 has not filed any reply to the writ petition. Thus, there is no denial of the fact that in fact, the dispute was of civil nature of the non return of the amount of remaining furniture which has been given the colour of criminal case. Submission of counsel for the petitioner is that the allegations levelled in the FIR even if taken at their face value and accepted in their entirety do not constitute any offence. Counsel further submits that the FIR is the result of mala fide and concocted false story against the petitioner due to 4 CWP No.4338/2005 (6.8.2008) personal enmity with the complainant and the said fact has been mentioned by the investigating agency. Counsel for the petitioner has placed reliance on Categories (1) to (7) mentioned in Para 108 of State of Haryana V. Bhajan Lal reported in AIR 1992 SC 604, in which power is to be exercised, out of which Categories (1), (5) and (7) are relevant in the present case. The same read as under: “108....... 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 to 4 ..... 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...... 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.” Counsel for the petitioner has also placed reliance on the judgment in Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others (1998) 5 SCC 749 on the issue that the FIR can be quashed in writ proceedings. Paras 22 and 26 of the aforesaid judgment read as under: “22.It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed 5 CWP No.4338/2005 (6.8.2008) by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guideline is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to. 26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court find that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.” Counsel for the State submits that the material collected during the course of investigation by the police is sufficient to proceed further. I have heard learned counsel for the parties and perused the record of the writ petition and further considered rival submission of counsel for the parties. In my view, the present case is of civil nature relating to 6 CWP No.4338/2005 (6.8.2008) the non-return of the remaining advance amount on account of making incomplete furniture by the complainant Carpenter which has been given colour of criminal case to escape from the civil liability. Therefore, categories (1), (5) and (7) of Para 108 of Bhajan Lal (supra) are fully applicable. Submissions made by counsel for the State have no force and the continuation of the criminal case will cause continuous harassment to the petitioner who is a government employee working as Assistant Public Prosecutor. Resultantly, the writ petition is allowed, the FIR No.181/2003 registered at Headquarter, Anti Corruption Bureau, Jaipur City-II, Jaipur u/s 7, 13(1)(d)(2) of the Prevention of Corruption Act, 1988 is quashed and the investigation taken in pursuance thereof and the challan filed and other proceedings are also quashed. (PREM SHANKER ASOPA) J. गोpa ल