's^ p"t> ys f .-w, "t^>. y<;'^, f^/"'• ^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH CR.M.P.NO. L(^70F200% PETITIONER T^ ^s^ •t-f."^ ^^.••' '^..' »-l"" /.i-e'' ^.«.^l& *--^< S.P.Dangwal Agedabout65 years, S/o Shri R.P.Dangwal, the then Director General of Police, Special Police Establishment, Lokayukta, Bhopaf-, Madhya Pradesh, Retired as Director General of Police (Jail) MP R/o 6, Amrapali Enclave, Chunabhatti, Kolar Road, Bhopal, Madhya Pradesh. RESPONDENTS -.^•a^s^^s^ VERSUS 1. Umesh Choube S/o Shri Satish Choube, Retired Executive Engineer, Madhya Pradesh Electricity Board, Raipur, Chhattisgarh 2. State of Chhattisgarh, Through Collector, Raipur, Chhattisgarh 3. Shri S.K.S. Bisen, Deputy Superintendent of Police, Special Police Establishment Lokayukta, Raipur, Chhattisgarh 4. Shri G.R. Banjare, Deputy Superintendent of Police, Special Police Establishment, Lokayukta, Raipur, Chhattigarh /] 5. Shri C.S. Amb, Superintendent |'/of Police, Special Police Establishment, Lokayukta, Raipur, Chhattisgarh PETITION UNDER SECTION 482 OF THE CODE OF CRIIVIINAL PROCEDURE, 1973 FOR QUASHING-^THE CRIMINAL PROCEEDINGS PENDING BEFORE THE COURTOF SHRI R.S.TANWAR./^DDITIONAL CHIEF JUDICIAL MAGISTRATE, RAIPUR''IN CRIIVIINAL COMPLAINT CASE N0.1304/2004 UIVIESH CHOUBE VS. S.K.S.BISEN FEBRUARY, 2008 PENDING FOR 6 a The applicant named above respectfully begs to submit as under: - l^- ,'"•• ^ /;\^? "^w^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. h/lr. Justice Pritinker Diwaker) Cr.M.P.No.43of2008 PETITIONER RESPONDENTS VERSUS S. P. Dangwal Umesh Choube and others Post for pronouncement of the order onZS .8.2010 Sd/- Pritinker Diwaker n''«^t'i:fn^!^^.^^^g^R^E^S';fiStB:: A-^-^- HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Cr.M.P.No.43of2008 PETITIONER RESPONDENTS VERSUS S. P. Dangwal Umesh Choube and others Shri Ranbir Singh counsel forthe petitioner. Shri Manish Sharma counsel for respondent No.1. Shri Pravin Das Dy. GA for respondent No.2 None for respondent No.3 Shri Sachin Singh.Rajput counsel for respondent Nos. 4 & 5. PETITION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE. ORDER (Kl.08.2010) The present petition has been filed for quashment of the criminal proceedings pending before the Court of Additional Chief Judicial Magistrate, Raipur in Criminal Complaint Case No. 1304/2004 in connection with the offences under sections 167, 189/34 IPC. 2. Brieffacts ofthe case arethaton 15.12.2000 a complaint case was filed by respondent No.1 Umesh Choubey against the petitioner and respondent Nos. 3 to 5 under sections 420, 467, 468, 218, 120-B, 471, 167, 211 read with section 34 IPC. It has been submitted by the complainant that he is a retired executive engineer of the erstwhile State Electricity Board, M.P. and on 22.3.1999 a charge-sheet was filed against him before special Court Raipur under section 13 (1) (e) of Prevention of Corruption Act. The said charge sheet was challenged by the petitioner before Madhya Pradesh High Court vide M.Cr.C. No.3532 of 1999 and the said petition was ailowed by Madhya Pradesh High Court vide order date 21.09.1999 and the charge sheet was quashed. According to the complainant, the case under the Prevention of Corruption Act which was registered against him and the challan was filed in the same, was totally a false and fabricated case in which ceri:ain documents were forged. He submitted that the wood which was used by him in construction of his. house was wrongly measured while filing the case against him just to ^,.^^5k,. t, •ss-»js%j 'ii!. ' "SS-'^[/ ''ais*as,yS^' ^} \ ^l- make out a case of disproportionate properi:y against him. It is alleged that the said document was prepared by accused No.1 S. K. S. Bisan (respondent No.3 before this Court) and this was done by him with an intention to cause damage to him. The allegation against accused No.2 (G.R. Banjare - respondent No.4 before this Court) is that without verification of the record in respect of the valuation the said document was filed along with the charge sheet and this is an illegal and unconstitutional act and the factual position has been suppressed before this Court just to implicate him in a false case. The allegation in respect of the petitioner is that being head of the institution it was his responsibility to conduct impartial and lawful investigation and he was required to do minute examination of the document and then the sanction ought to have been given by him. It is alleged that he too was involved in the conspiracy to damage the complainant and to defame him causing mental torture for many years. Allegation in respect of C. S. Amb (respondent No.5 herein) is that at the relevant time he. was working as Superintendent of Police and was the controlling authority of respondent Nos. 3 and 4 herein. It is alleged that on his instructions the illegal raid was made on 7.5.1996 and with his consent the false and fabricated documents were prepared to damage the complainant and therefore he too is involved in the case. 3. In support of his case statement of the complainant was recorded under section 200 of the Code of Criminal Procedure on 30.08.2001 (Additional document -B before this Court) and the statements of Rakesh Chaturvedi and Surendra Kumar Panigrahi were also recorded. In his statement the complainant has elaborately stated in paragraph-7 that the forged document so prepared by the other police officers were forwarded to the present petitioner who was working as Director General of Police and it was within the knowledge of the petitioner but yet for granting the sanction to file challan being hand in glove with the other officers, a decision was taken to prosecute the petitioner. The other two witnesses namely Rakesh Chaturvedi and Surendra Kumar Panigrahi are the witnesses who have stated that the valuation was not done correctly by the authorities and when the house of the complainant was raided, there 311 : ^rIIB: IB ;^;jKl' :ai: vsu SiEi BSl^ •:K flSt •^^i^'1' IBII i •: i SIBi 31!1; SIIK ^ft" B^81 'ri. B! iisl li B: Bi| f 'sS'i i ill^i i Bl4i Billi!:1 IBJ •I i^i: fSf aiESs giiHS';!;? B; !B/:•' Bil; were some technical flaws and the measurement was also not done correctly. 4. It has been argued by Shri Ranbir Singh that even if the entire complaint and the statements of the complainant and his witnesses are taken as it is the offences under sections 167 and 189/34 IPC are not made out against the petitioner. He submits that admittedly at the relevant time the present petitioner was the Director General, Special Poljce Establishment, Bhopal and the only role played by him was that he forwarded the note sheet to the then Lokayukt on 18.03.1999 with the observations as are mentioned in the additional document filed on 27.07.2010 along with this petition, which would be referred to subseuqnetly. He submits that no sanction whatsoever was granted by the petitioner for either prosecuting the complainant or for filing the challan against him and ultimately the decision was taken by the then Lokayukt. He has referred to the note sheet of the Lokayukat which reads as under: "Having regard to Shri Shah's opinion, also my ownjudgment f'n the matter, Chajlan as proposed may be put up. " He further submits that even the Lokayukat had granted permission to filei challan against the complainant after taking legal opinion from the legal^ adviser namely W.A. Shah and therefore the petitioner cannot be blamed| for anything. He submits that the petition of the complainant/respondent| No.1 i.e. M.Cr.C. No.3532/1999 was allowed by the High Court of Madhya Pradeshvideorderdated 21.09.1999 only on thetechnical ground that the' Superintendent of Police had not granted any authority to Dy. Superintendent of Police for conducting the investigation as required under| section 17 of the Prevention of Corruption Act. He has drawn the attentioni ofthis Court to Annexure P-3 filed along with this petition. He submits that| even while quashing the charge sheet, the High Court has observed that:j "With these obsen/ations this petifion is accepted and the prosecution is quashed at this stage. But, this Court is not quashing the first information\ report in the present case." He submits that the case of the petitioner isi squarely covered fromillustrations 1, 3 and 7 of paragraph 102 of the| ^ decision of the Supreme Court in the matter of State of Haryana and^ •s:»: -4- others v. Ch. Bhajan Lal and others reported in 1992 Cri.L.J. 527 which reads as under: (1) 'W/iere 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. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose fhe commission of any offence and make out a case against the accused. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior^ motive or wreaking vengeance on the accused and with a view to\ sp/te him due to phvate and personal grudge" 5. In respect of the objection raised by respondent No.1 regarding maintainability of the petition on the ground that second revision in the garb of petition under Section 482 of the Code of Criminal Procedure.i counsel for the petitioner argued that in view of the judgment of the Supreme Court in the matter of Krishnan and another v. Krishnadevi and another reported in (1997) 4 SCC 241 present petition is very much maintainable. He also placed reliance on the decision of the Supreme1 Court in the matter of Shakuntala Devi and others v. Chamru Mahtoi and another reported in (2009) 3 SCC 310. Reliance is placed on yet another decision of the Supreme Court in the matter of Som Mittal v. Government of India reported in (2008) 3 SCC 753. Further reliance is placed on the decision of the Supreme Court in the matter of Som IVIittali v. Government of tndia reported in (2008) 3 SCC 574. 6. Counsel for the petitioner submits that earlier the petitioner had filed a revision challenging the order of the Magistrate dated 11.10.20041 against registration of the offence against him vide Annexure P-6 but the' same was dismissed on 27.11.2007 (Annexure P-7) on the ground ofl limitation as the order of the Magistrate was challenged after about one year and ten months. He submits that on merit there was no decision by| the Court and in a petition under Section 482 of the Code of Criminal P.rocedure, this Court is not precluded from deciding the legality and validity of the complaint case and that whether continuance of the proceedings would amount to abuse of process of law or not. He submits that even ofherwise also inherent powers under Section 482 of the Code' ,^! f: '"<;. :^ .^ ',.„,,.. ^ ;;''-?S':" ^?K~r^-^':;:;'';'^. B; ^11^^. '^^1'"1^^ ^i-''^aSTSL?^-' -y' of Criminal Procedure are wide enough in view ofthe various decisions of the Supreme Court in particular the one in the matter of State of Haryanai and others v. Bhajan Lal ahd others (supra). 7. Replying to the argument of the counsel for respondent No.1 thatj the petitioner has the alternative remedy under Section 245 (2) of the; Code of Criminal Procedure, it has been submitted by the counsel for thei petitioner that in view of the decision of Supreme Court in the matter of G.l Sagar Suri and another v. State of U.P. and others reported in (2000) 2 SCC 636, this petition is very much maintainable. Relevant portion of the: said judgment reads as under: "7. It was submitted by Mr Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should.not interfere in the chminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 ofthe Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate and Ashok Chaturvedi v. Shitul H. Chanchani wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the ; accused at any stage ofthe trial ifhe considers the charge to be groundless but that does not mean that the accusaed - cannot approach the High Court under Section 482 of the Cocfe or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony ofa criminal trial. 8. Juhsdiction under Section 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 chminal court has to 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 Cocfe. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends ofjustice." | He submits that the petitioner cannot be prosecuted under sections^ 167and 189 with the aid of section 37 IPC. He submits that section 15 of the Madhya Pradesh Lokayukta and Up Lokayukta Adhiniyam, the .,<»• II'.- 1Si@' 'aas' ,sg:s;.. :^^ SIB 6B. K-—. 9S- 9 lMi-:-. ISIS ai •; •5:'i;^i!1?';i" '.'.';'JI-^- •s' I VKk i!i^!;;^ 1 Blll^' hiil IIB-: ;SK£i. 11111 BB';? fll. ai^: s^ 'sx:ii 9SS: .^.t'l aiss ;B ^^E! aiy: « Kl.'K: S!K! IR — ;?' — petitioner is protected from anything done in good faith or intended to be done under the said Act. 8. Counsel for the respondent No.2/State has assisted the Court. Counsel for respondents 4 and 5 has supported the case of the petitioner. Counsel for respondent No.1 submits that the present petition in its present form is not maintainable because the learned Magistrate is already ceased of the matter and has merely taken the cognizance thereof. He submits that the petitioner will get ample opportunity before the Magistrate to put forth his case. He submits that the petitioner has filed this petition justto avoid his presence before the Magistrate. He submits that against registration of the offence the revision was preferred by the petitioner and once itwas dismissed the petitioner has not challenged the same before' any higher forum and therefore he is prevented from filing the present petition. He further submits that in the order of the Magistrate there is no! illegality or perversity and therefore the same cannot be interi'ered with. 9. So far as the first point raised by the petitioner that even if the entirel case is taken as it is, the petitioner cannot be prosecuted under sections; 167 and 189 IPC is concerned, counsel for the respondent No.1 submitsi that from the complaint it that valuation and measurement of the woodi j which was allegedly used by the complainant in construction of the house,; has been done incorrectly and the correct measurement and valuation thereof was given to the police officer at the time of enquiry but yef ignoring the same the present petitioner has granted sanction for prosecuting the complainant and thereby the petitioner has committedi various offences including the offences under sections 167 and 189 IPC.I If the allegation against the petitioner as mentioned in the complaint is| taken into consideration, the same can be found in paragraph-8 of thei complaint in which it is stated that he being the head of the office has the| responsibility for impartial and lawful investigation and to permit filing of charge sheet after minute examination of the documents available oni record but he too has involved himself in the conspiracy by not doing the needful and thereby damaged property and reputation of the complainant causing him mental agony for years together. Though this allegation has been levelled against the petitioner, there is nothing on record on the basis: of which this allegation can be substantiated. It appears that just toi ^^' s^ s;. Wfr' Sl 11 implicate the present petitioner in a false case such type of allegation has been levelled against him. If the statement of the complainant and his witnesses recorded under section 200 Cr.P.C. are considered, as per paragraph-7 of the complaint, correct valuation report submitted by the D.F.0. was forwarded to the Director General of Police and the entire proceedings were within his knowledge and while granting permission to| file the challan those documents were ignored and therefore, it can be said that the petitioner was also involved in the conspiracy. Even if this; statement is taken as it is there is again no evidence available on record to substantiate this allegation. Merely on the basis of bald allegation a person cannot be dragged in the Couri: to face litigation for many years and wait for its outcome. Thus, I find sufficient ft)rce in the argument of thel petitioner that even if the entire case of the prosecution is taken at its iace value, no prima facie case against the petitioner is made out. Supreme' Court in the case of State of Haryana and others v. Bhajanlal and others (supra) has madethe position very clearwhich reads 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 extraordinaiy power underArticle 226 orthe 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 yalue 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 offrcers 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 %. ~"^J/ '^ '''9^.^ "'^-^ '^'..^••sy ii'iS.:. •iiRS imi 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 cognlzable 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 Section 155(2) ofthe Code. (5) Where the allegations made in the FIR or complainf 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 chminal 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) V\/here 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." Thus, if the facts of the case in hand are taken into consideration it can be said that it is squarely covered by illustrations 1, 3& 7 ofthe afore-cited decision of the Supreme Court. Further, by the order impugned the Court has taken cognizance against the petitioner under sections 167 and 189| IPC. Section 167 and its essential ingredients are: "167. Whoever, being a public servant, and being, as such public servant, charged with the preparation or translation of any document or electronic records, frames, prepares or translates that document or electrocnic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imphsonment with either deschption or term which may extend to three . years or with fine or with both" a) The accused was public servant on the date of incident. b) The accused was charged with the preparation or translation of a document. ("Document", as defined in Section 3 (18) of the| General Clauses Act, includes any matter written, expressed orj Slii: "^^- -cl- described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended toi be used, or which may be used, for the purpose of recording that matter). c) That the public servant concerned in fact framed or translated the document incorrectly knowing or believing to be incorrect. d) The public servant concerned must be proved to have intended! by his aforesaid preparation or the translation of the document to| cause injury to any person. (Term "Injury" has been defined in| section 44 of the Indian Penal Code as "any harm illegaliyl caused to any person, in body, mind, reputation or property") Similarly Section 189 and its essential ingredients are are: "189. Whoever holds out any threat of injury to any public sen/ant, or to any person in whom he believes that public servant to be interested for the purpose of inducing that public servant to do any act, or to forbear or dealy to do any act, connected with the exercise of public functions of such public servant shall be punished with imprisonment of either description or a term which may extend to two years or with fine, or with both." a) threat of injuy must have been made by the accused. b) The person threatened was a public servant or some other person in whom accused believed, such public servant was interested. c) The purpose of threat was to induce the public servant to do, or' to forbear, or delay to do nay act, connected with the exercise of his public functions. Furtherthe essential ingredients ofthe offence undersection 34 IPC are: a) that the criminal act was done by more than one person. b) That the said act was done, in furtherance of the common! intention ofall. c) Then, each of such persons is liable for the act done. d) The liability of each of such persons would be in the same| manner as if the act was done by him alone. .li3',)i: B'l ••^slii!. aii: aa! -id If the above provisions of law are taken into consideration along with the complaint and statements of the witnesses, it is apparent that ingredients! ofthe same are not attracted to the case in hand. 10. Another point which has been raised by the petitioner in this case is! that the allegation that it was he who granted sanction is also incorrectl because in the case of complainant/respondent No.1 the sanction was not granted by him as it was not required because the respondent No.1 was! the retired employee. From the note sheet of the petitioner it is clear thati the petitioner had forwarded the matter to the