IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 44 of 2009. Judgment reserved on: 4th May, 2010. Date of Decision: 15th May, 2010. _______________________________________________________ Mohan Bag ….Petitioner. Versus State of HP and another ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the petitioner : Mr. Tarlok Chauhan, Advocate. For respondent No.1: Mr. J.S. Rana, Assistant Advocate General. For respondent No.2 : Mr. Suneel Goel, Advocate. ____________________________________________________ SURINDER SINGH, J. Petitioner is an accused in Criminal Case No.198-II of 2008, State versus Mohan Bagh, pending in the Court of learned Sub Divisional Judicial Magistrate, Rampur Bushahr, under Sections 409, 420, 466, 467, 468 and 471 of the Indian Penal Code. The said case was fixed for consideration of charge. In the meantime, instant petition has been filed and the trial Court’s record was called for by this Court in this petition filed under Section 482 of the Code of Criminal Procedure read with Article Whether reporters of the Local papers are allowed to see the judgment? - 2 - 227 of the Constitution of India by the accused/ petitioner for quashing the FIR and criminal proceedings arising therefrom. 2. Precisely, the facts giving rise to the present petition can be stated thus. In the year 2000 the petitioner was Deputy Manager (Vigilance) and his colleague Shri A.K. Singh was Manager (I.A.) in Nathpa Jhakri Power Corporation Limited (NJPC). During the posting at Jhakri the petitioner was issued a “still Camera Model 505 Canon” valuing about Rs.29,000/- to perform his official duty, which according to the petitioner was kept in the official vehicle on 25th April, 2000 parked in front of his office between 7.00 pm to 8.15 p.m. alongwith some loose photographs of Project activities and seven video cassettes, but it was found missing. On 26th April, 2000, he informed the then Station House Officer, Police Station, Jhakri, in writing. It is an admitted case that on the next day, i.e., 27th April, 2000, the police issued a public notice that in case some one finds the aforesaid articles, they should deposit it with the Police Station. Police did not find any clue. 3. On 2nd August, 2000 i.e. after about three months, the same Station House Officer, Police Station, Jhakri, issued a certificate that despite best efforts the - 3 - said Camera alongwith other articles could not be traced. 4. On 5th August, 2000, the petitioner sent a letter to his Department to write-off the “still Camera” and seven used video cassettes in view of the position explained in his letter and attached the certificate of the Station House Officer. 5. Vide letter No.NJPC/DF/04/2001/394 dated 5th December, 2001, Shri O.N. Singh, Director (Finance) of the said Corporation informed that he got re-examined the matter about the items issued to the petitioner which were not returned back to the Corporation. Thus the amount of Rs.27,510/- the cost of the Camera was deducted from the pay of the petitioner towards its cost. The petitioner was informed that the cost of the Camera would be retained till such time it is written-off and this retention was being done, based on the report submitted by Shri R.N. Sharma, SE (Vigilance) vide his IOM No.NJ/Vig./2000/631-33 dated 4th December, 2000. The matter between the Department and the petitioner ended at that time by deducting the cost of the Camera from his salary till written-off. 6. However, on 7th July, 2008, respondent No.2 Shri A.K. Singh had become Senior Manager (C-F) and posted in SJVNL, Sector-1, Parwanoo. He made a written - 4 - complaint to the Station House Officer, Parwanoo, which in turn was sent to S.H.O., Jakhri, informing that there was neither any missing report nor any document in respect of loss item as reported by Shri Mohan Bag petitioner available with the police. Thus guided by his conscious he had made the complaint to the police as aforesaid which culminated into the FIR in the present case. He also alleged that untraceable certificate did not bear the signature of Shri Hukam Singh, SHO, therefore, the untraceable report was false. 7. On these allegations police started investigation without informing Corporation. 8. The petitioner sought pre-arrest bail and joined the investigation. Police on investigation came to the conclusion that the petitioner had lodged a false report with respect to the missing of the Camera as alleged, but did not say anything about the certificate given by the then SHO, Police Station, Jhakri on 2nd August, 2000. It relied upon the statement of H.C. Dharam Pal that the missing report was assigned to him for enquiry by the then SHO, who is alleged to have issued the said certificate. It is alleged that the petitioner had tried his best to get it written-off on wrong and fabricated facts, as such Challan against the petitioner was presented in the trial Court for his trial. - 5 - 9. The petitioner has sought the quashing of the criminal proceedings on the above facts under the inherent powers of this Court. 10. In R.Kalyani v. Janak C. Mehta and others, (2009) 1 SCC 516 the Supreme Court reiterated the proposition of law governing the inherent powers of the High Court considering various decisions, in the following manner:- “15. Propositions of law which emerge from the said decisions are : (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. - 6 - 16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 11. It is now well settled that the High Court has the power to quash an FIR or even a complaint subject to limitations and conditions laid down by the Supreme Court. Even it need not wait for completion of investigation and taking cognizance of by the Magistrate. There is no dispute that this power has to be exercised by the High Court very sparingly with circumspection and also in rarest of rare cases. Though there are limitations on exercise of power by the High Court, but it does not mean that the High Court lacks the power, if the case falls in the rarest of rare cases for its intervention. - 7 - 12. In reply filed by the respondents it is contended that a cognizable offence was made out against the petitioner, therefore, the case was registered, investigated and put in the Court against the petitioner for his trial. 13. In fact, respondent No.2/complainant was a colleague of the petitioner and the petitioner was neither subordinate nor answerable to any of his official act to him. In other words, respondent No.2 was neither his superior nor his Superintending Officer. The Camera in question was entrusted to the petitioner by his Department, i.e., Corporation. If he had misplaced or misappropriated it, for that his Department has retained its cost by deducting it from his salary till they decide to write-off as per rules. Further, the petitioner had applied for writing off the Camera vide letter dated 5th August, 2000 to his Department, but the concerned authority had rejected the proposal and own his responsibility. The documents referred to above are the parts of the Challan. The then SHO Hukam Singh, who died, issued untraceable certificate dated 2nd August, 2000, which is placed on record. It has not been proved to be fake. Although, the complainant had made the complaint, but he did not complain against the SHO issuing certificate so long he was alive that the petitioner had - 8 - submitted a fake certificate. Police did not send that certificate for expert opinion for comparison on the basis of admitted writing and signatures of Hukam Singh. Suddenly, in the year 2008, i.e., after about seven years respondent No.2 filed the complaint on the basis of which FIR was lodged despite the fact that the Department had retained the cost of the Camera and they had no grouse against that as aforesaid, therefore, in my opinion, it is well deserved case for quashing the criminal proceedings, while adjusting equity and taking into consideration the facts emerging from the record in the case of this nature. The petitioner would face harassment although allegations contained in the FIR culminated into the criminal proceedings, even assuming to be correct were of civil nature and, also amenable to the departmental action against the petitioner, but in the circumstances, as put forth in the form of Challan, it is really difficult to appreciate as to on what basis the complaint was filed by respondent No.2 when the Corporation had already recovered the amount of the Camera and they have no grouse. 14. Therefore, against the aforesaid factual background and the law discussed above, I find that the prosecution of the petitioner is an abuse of the process of law and as such the criminal proceedings in Case - 9 - No.198-II of 2008, pending in the Court of Sub Divisional Judicial Magistrate, Rampur Bushahr, emanating from FIR No.88 dated 7th July, 2008 are hereby quashed. 15. The petition stands disposed of. 16. In view of the disposal of the main petition, all pending applications shall also stand disposed of. May 15, 2010. (Surinder Singh), J. (rc)