IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8944 of 2010 Deepak Pandey, Son of Satyadeo Pandey, Resident of Village Sargadia, P.S. Golapar, Dist. Betiah (West Champran), presently workingas a Manager in the firm namely Perfect Acqua Pvt. Ltd. in the industrial Area, Hajipur, Vashali, Bihar. ---------- Petitioner Versus 1. State Of Bihar through the Director General of Police, Govt. of Bihar. 2. Luxman Mishra, S/o Baidyanath Mishra, Resident of Village Manchi, P.S. Belsond in the district of Sitamarhi, Presently at the establishment of Bihar State Road Transport Corporation, Muzaffarpur (Driver). -------- Opposite Party ----------- For the Petitioner : Mr. Gajendra Pratap Singh, Advocate For the State : Mr. H.A. Khan, A.P.P. ------------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (31.03.2010) Mihir Kumar Jha, J. Heard learned counsel for the petitioner and counsel for the State. The prayer in this application is for quashing of the First Information Report arising out of Hazipur Sadar P.S. Case No. 47 of 2010 dated 13.02.2010 registered for offence under Sections 323, 341, 342, 504, 353, 379 & 34 of the Indian Penal Code. The ground for quashing of such First Information Report of the petitioner is that prior to the lodging of the said First Information Report, he had lodged First Information Report with regard to the same occurrence and, therefore, that by itself would be sufficient to show that the subsequent First Information Report is malicious and therefore should be 2 quashed. He would further submit that the law in this respect stands well settled by the judgment of the Apex Curt in the case of Madhavrao Jiwajirao Scindia & Ors. Vs. Sambhajirao Chandrojirao Angre & Ors. reported in 1988(1) SC 692 as also the judgment in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604 ~ 1992(1) Supp. 335. In the considered opinion of this Court the first and foremost question would as to how the petitioner is aggrieved of the First Information Report when he has not been even named therein. Counsel for the petitioner would try to explain that since there is a mention of a small car being the subject matter of the offence, the petitioner has a hunch that he is being sought to be impleaded in this case. Such submission on the face of it infact needs to be rejected inasmuch as when the petitioner is not named in the First Information Report, he will have normally no locus-standi even to challenge the First Information Report. This Court however has also examined the allegations made in the two First Information Reports. The version in the First Information Report that was filed by the petitioner vide Annexure-1 to the application would go to show that an accident had taken place wherein according to the petitioner, it was the fault of the driver of the Government bus bearing 3 registration no.BR06P/0676 about which the petitioner had lodged a written report to the police. The driver and the khalasi of the said Government bus, however, have given different version in their written report with regard to the same accident and in the resultant F.I.R. registered it has clearly alleged by the two government employees that on account of the melee created by the persons on the site not only they were assaulted but their vehicle in question, the government bus, was also forcibly taken away by unknown miscreants which was later on found to be at the police station. Obviously, either of the version may be correct or even of both the versions may be incorrect but that can only be gone into after the police would complete its investigation. For that reason, the First Information Report however cannot be quashed. Merely because there are two versions of the same occurrence leading to two separate First Information Reports, one of them cannot be held to be false even before the investigation by the police is completed. The power of investigation of the police in respect of cognizable offence being a statutory, the same cannot be preempted by this court. The only significant thing to be examined for quashing of the impugned First Information Report at this stage is as to whether on a plain reading of it any offence is made out or not. That was how the law settled way back by the Apex Court in the case of State 4 of Bihar & Anr. Vs. J.A.C. Saldanna & Ors. reported in AIR 1980 SC 326, which has also been followed by the Apex Court in a number of its subsequent judgments including State of Bihar Vs. P.P. Sharma reported in A.I.R. 1991 S.C. 1260 . This Court however on reading of the impugned F.I.R. would find that there are sufficient ingredients to make out offences for it has been registered. The reliance placed by the learned counsel for the petitioner on the case Bhajan Lal (supra) is wholly misplaced. In paragraph no.102 where the conclusion have been drawn, the Apex Court has enumerated the following considerations for exercise of power under Section 482 of the Cr.P.C. or Article 226 of the Constitution of India and they are to be always read together with each other and not in isolation as was sought to be canvassed by the counsel for the petitioner by only relying on Sub Para-(7) of paragraph no.102 of the judgment. “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 5 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 non-cognizable 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 6 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 malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spit him due to private and personal grudge.” From reading of the said judgment, it would be clear that even Sub para-(1) of Para-102 of the judgment will hold as much force in law as its sub paragraph no.(7) and if sub para-(1) is read, it would be clear that the Apex Court has made it clear that where the allegation made in the First Information Report or complaint petition even if they are taken into account at its face value and accepted in entirety do not make any prima-facie case then alone the power can be used for exercise of Article 226 or 482 of the Cr.P.C. As noted above, this Court has found that the First Information Report, in question, do contain the allegation making out the ingredients of offence u/s 379 and other penal provisions therefore, it will be difficult for this Court to quash the First Information Report by placing reliance on the Bhajan Lal case (supra). 7 Coming next to the judgment in the case of Madhavrao Jiwajirao Scindia (supra), this Court would not be in a position to accept that paragraph no.7 thereof as referred to and relied by the learned counsel for the petitioners lays down as an abstract proposition of law that a prosecution at the initial stage can be quashed only because the same would be a malafide prosecution. Paragraph no. 7 of the judgment in fact reads as follows:- “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 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 is 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.” From reading of the aforementioned paragraph, it would be thus clear that the Courts have to apply a test as to whether the uncontroverted allegation do make out a prima-facie case or not. In the present case, when the when the driver and the khalasi of the bus have stated that they were thrashed after the accident and the bus was forcibly taken away from their 8 custody by unknown persons (not specifically naming the petitioner) and such bus was a Government bus, the snatching of such bus and the assault by itself do prima-facie make out an offence under Section 379 and Section 323 I.P.C. apart from others for which the First Information Report has been recorded. In that view of the matter, this Court would find that the judgment of the Madhavrao Jiwajirao Scindia (supra)case far from supporting the petitioner would actually go against him. That being so, this Court would not find any merit in this application and the same is, accordingly dismissed. Patna High Court Dated the 31st March 2010 N.A.F.R./Rsh (Mihir Kumar Jha, J.)