HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No.: 5 of 2006 Decided on: 27.5.2008 Ashok Sharma ………Petitioner. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Mr.Atul Jhingan & Ms.Shilpa Sood, Advocates. For the respondent: Mr.J.S. Guleria, Law Officer. V.K. Ahuja, J. (Oral): The petitioner has filed the present petition under Article 227 of the Constitution of India and Section 482 of the Cr.P.C. for quashing of FIR No.18/1998, dated 21.8.1998, registered against him under Sections 468, 471, 420, 409, 218, 109, 34, 120(b) of the IPC and Section 13(2) of the Prevention of Corruption Act, at Police Station Enforcement, Shimla. The petition was subsequently amended since the challan was filed before the learned Special Judge(Forest), Shimla and by way of this amended petition, the petitioner has also sought relief of quashing the case pending before the learned Special Judge (Forest), Shimla in pursuance of the final report submitted under Section 173 Cr.P.C. in the aforesaid FIR. _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Reply was filed by the State. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the petitioner were that a 3-Member Committee was constituted by the Pollution Board for verification of 21 articles allegedly missing when the petitioner was working as Member Secretary, Pollution Control Board. The learned counsel for the petitioner had also challenged the constitution of the Committee and the Members constituting the Committee since it was submitted that one of the Members of the Committee, namely, Hitender Sharma was the Store Keeper and he could not have been Member of the Committee. It was further submitted that on verification, the articles allegedly found missing have been recovered and either these are lying in the various offices of the Board or are with the Members/officials of the Board and, therefore, the petitioner is not liable for misappropriation of these items. It was also submitted that before the FIR was registered against the petitioner, a preliminary inquiry was required to be got conducted as per the Vigilance Manual, which was not done and, therefore, the challan against the petitioner cannot proceed further and is liable to the quashed. It was further submitted that the prosecution sanction was obtained on 6.7.2001 and challan was not filed, but it was filed in 2006 and, therefore, the fact that the sanction order was taken prior to the completion of the investigation in 2006 is an irregularity rather illegality. Therefore, it was submitted that the proceedings should be quashed. - 3 - A plea was also raised that the investigation has already taken sufficient number of years and the petitioner is suffering and this should weigh with this Court while holding that the proceedings are liable to be quashed. It was further argued that the role of the Chairman is also under scanner since ex post facto sanction was granted by the Chairman for the purchase allegedly made by the petitioner and, therefore, no case is made out for continuance of the proceedings as against the petitioner. Another plea was also raised by the learned counsel for the petitioner that fresh sanction was required before the challan was filed in the Court in the year 2006. This plea cannot be considered at this stage by this Court since it is for the learned trial Court to consider as to whether after the sanction was accorded in 2001, fresh evidence has been collected by the Investigating Agency or not and as to whether fresh sanction, in the facts and circumstances of the case, was required or not and, therefore, no findings on this plea can be given at this stage. The learned counsel for the petitioner has made a prayer that this court should go into case diary of October, 2005 in which it was allegedly observed by the investigating officer that there may be justification to file a cancellation report. This court does not deem it necessary to refer to the said case diary to decide the present petition and the assistance of the case diary can be taken by the learned trial Court during trial, therefore, this plea is rejected. The learned counsel for the petitioner, to substantiate his arguments, has relied upon the following decisions. The decision in P.Sirajuddin etc. v. The State of Madras etc., AIR 1971 Supreme Court 520, shows that a public servant was charged for - 4 - serious misdemeanour. Preliminary enquiry is necessary before lodging of FIR and duties of the enquiring officer were also mentioned therein. The decision in Madhavrao Jiwaji Rao Scindia and another etc. v. Sambhajirao Chandrojirao Angre and others, AIR 1988 Supreme Court 709, shows that the observations were made in para 7, which are relevant and are being reproduced below: “The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” The decision in B.N. Ganjoo v. The State of Himachal Pradesh, 1982 Sim.L.C. 296, shows that T.A. Bills were submitted by the petitioner, who was working as Senior Auditor. Charge sheet was submitted against the petitioner after more than 9 years when the offence was committed. Department’s duty was to lodge the report expeditiously with the police and investigating agency must complete the investigation without unnecessary delay under Section 173 Cr.P.C., and it was the duty of the court to complete the trial on an early date. It was held that the petition was allowed and the proceedings were quashed in exercise of the inherent powers. - 5 - In the present case, as already mentioned, the investigation was completed in the year 2001, sanction was also obtained from the competent authority and before the challan could be filed, the petitioner made a representation which was considered and further verification of facts was done by the Investigating Agency, which resulted in completion of the challan and submitting of the same in the year 2006 only. The facts of the above case are clearly distinguishable from the present facts and in the present case delay is not attributable fully to the Investigating Agency. On the other hand, the learned Law Officer has submitted that though the investigation was completed in 2001 and the sanction was also granted by the competent authority but since the petitioner filed a representation in 2003, reinvestigation was done which resulted in delaying the completion of the investigation and subsequent filing of the challan, which was filed in the year 2006 only. Thus, it was submitted that the petitioner has been instrumental in delaying the investigation from being completed and now he cannot take any such benefit because of the delay. The petitioner is alleged to have misappropriated number of items for which a preliminary inquiry was got conducted by the Department by constituting a 3-Member Committee, which submitted its report and the FIR was registered. The petitioner is also alleged to have made purchases beyond his competence and also from not authorized persons and as such all these questions are to be considered by the trial Court before whom the case is pending. It has to be seen as to whether all the items allegedly misappropriated by the petitioner have been accounted for or not and that can be done only by the trial Court after considering the various documents placed on the file by the Investigating Agency - 6 - as well as by the accused and it is then for the court to draw a conclusion on perusal of all the documents as to whether all the items stand accounted for or not. No final opinion can be given by this Court since it is the job of the trial Court to consider all these pleas so raised before it at the time of framing of charge. In regard to the powers of the petitioner to make purchases beyond Rs.100/-, it was submitted that at different times, these powers were revised and, therefore, the petitioner was competent to accord sanction for the purchase of these items, which plea also can be considered by the learned trial Court after considering various notifications, if any, placed on record by the petitioner to show that he was competent to make purchases beyond Rs.100/-. In regard to the plea that no preliminary inquiry was conducted as per the Vigilance Manual, it is clear that a preliminary inquiry was conducted by constituting a Committee. Moreover, the provisions of the Vigilance Manual are only guidelines in the nature of administrative instructions to be followed and these cannot override the express provisions of the Code of Criminal Procedure or other provisions in regard to the investigation. Once a cognizable case was made out from perusal of facts, the police was required to register the case. The pleas raised by the learned counsel for the petitioner during the course of arguments cannot be considered in detail by considering each item and the documents filed to show that there was no misappropriation and these pleas can be considered in detail by the learned trial Court only at the time of framing of charge. In so far as the powers of this Court under Section 482 Cr.P.C. are concerned, I may make a reference to the decisions relied upon by the learned - 7 - Law Officer during the course of arguments. The question as to when the powers under Section 482 Cr.P.C. should be exercised by the courts has been considered by the apex court in State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604. Their Lordships have given 7 circumstances in which these powers can be exercised under Section 482 Cr.P.C. A perusal of para 108 of the said judgment shows that it was observed as under: “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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code. 3) Where the unconvroverted 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 F.I.R. 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 under 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 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.” - 8 - Reference can also be made to the decision in Rajinder Chand Abrol v. State of Himachal Pradesh, 1995 Cri.L.J. 800, the perusal of which shows that this Court had made a reference to the decision in Ch.Bhajan Lal’s case supra wherein 7 conditions have been laid down against which the powers under Section 482 Cr.P.C. can be exercised. It was held by this Court that if the FIR/complaint prima facie discloses the offence, the proceedings are not liable to be quashed. Powers under Section 482 Cr.P.C. are to be sparingly used and once the FIR discloses a cognizable offence allegedly committed by the petitioner, it cannot be said that on consideration of the entire evidence, the court should hold that a case is made out for quashing of the challan filed against the petitioner. Therefore, in view of the above discussion, I accordingly hold that no case is made out for exercising these powers under Section 482 Cr.P.C. read with Article 227 of the Constitution of India. There is no merit in the petition filed by the petitioner is dismissed accordingly. The parties are directed to appear before the learned trial Court on 23rd June, 2008, who shall try to decide the case as early as possible. (V.K. Ahuja), May 27, 2008 Judge. (TILAK)