Allowed

Rajesh Sharma v. State of Punjab and Ors.

Punjab & Haryana HC17 Sept 2010CRM-M/18337/2009

Case brief

AI extract

What is this about?

In a criminal miscellaneous petition under Section 482 CrPC, the court quashed an FIR and subsequent proceedings wherein a departmental inquiry had found the petitioner innocent and the competent authority declined to grant sanction for prosecution, deeming further action an abuse of process.

What did the court decide?

FIR No. 98/03 dated 2.4.2003 and all subsequent proceedings arising therefrom were quashed.

Rajesh Sharma Vs State of Punjab and Ors. — Quashing and FIR | Punjab & Haryana HC (2010)

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Crl.Misc. No. M-18337 of 2009 (O&M)

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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

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Crl. Misc. No. M-18337 of 2009 (O&M) Date of Decision:September 17, 2010

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Rajesh Sharma

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...........Petitioner

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Versus

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State of Punjab and Others

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..........Respondents

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Coram: Hon'ble Mrs. Justice Sabina

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Present: Mr.V.K.Jindal, Advocate for the petitioner Mr.Amandeep Singh Rai, Assistant Advocate General,Punjab Mr.Sumit Puri, Advocate for the complainant

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Sabina, J.

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Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure seeking quashing of FIR No. 98/03 dated 2.4.2003 under Sections 409, 467, 468, 471,120-B of the Indian Penal Code (`IPC' for short) registered at Police Station Civil line, Amritsar (Annexure P1) and subsequent proceedings arising therefrom.

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In the present case, FIR in question was registered against the petitioner for an offence under Sections 409, 467, 468 and 470 IPC. The complainant had alleged that the complainant party was owner of the land in question. After purchase of the land, mutation Nos. 10400 to 10404 dated 27.11.2000 were sanctioned in favour of the complainant and his family members. Petitioner,however, tampered with the revenue record and created his own interest in the said property alongwith Gurwinder Singh, Partap Singh and Smt, Reeta Arora.

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Crl.Misc. No. M-18337 of 2009 (O&M)

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Learned counsel for the petitioner has submitted that the matter was duly inquired into at departmental level and it was found that the petitioner was innocent and sanction to prosecute the petitioner was not granted by the competent authority, Hence, the FIR in question was liable to be quashed.

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Learned State counsel, who is assisted by the counsel for the respondent, on the other hand, has opposed the petition. Paras 7 and 8 of the reply on merits submitted by respondents No.1 to 3 read as under:-

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“7. That in reply to the contents of para No.7 of the petition, it is submitted that as per the enquiry report dated 6.11.2003 passed by the financial commissioner revenue Punjab, no allegation is proved against Rajesh Sharma and accordingly charge sheet issued to the petitioner was dropped vide order dated 6.11.2003 passed by the then Financial Commissioner Revenue Punjab Chandigarh.

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That the contents of para No.8 of the petition are admitted as per record. It is further submitted that during the departmental enquiry the Financial Commissioner was of the firm view that no offence has been committed by the petitioner while performing his duties as Tehsildar. It is further submitted that the sanction u/s 197 Cr.P.C. was not permitted by the Financial Commissioner Revenue Punjab-Chandigarh. There is no impediment in the investigating agency in continuing with the investigation in the absence of sanction u/s 197 Cr.P.C. by the Financial Commissioner.”

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Para 2 of the order whereby charge-sheet proceedings were

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Crl.Misc. No. M-18337 of 2009 (O&M)

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dropped against the petitioner dated 6.11.2003 (Annexure P3) reads as under:-

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“Sh.Rajesh Sharma has given explanation in response to enquiry report. He was also heard in person on 5.11.2003. During hearing he told that he recorded four mutation entries correctly. However, on the basis of the complaint filed by the complainant while enquiry was got conducted through Deputy Commissioner, Amritsar. In the enquiry no fault of the petitioner was found. He also told the then Commissioner, Jalandhar Division has withdrawn his powers under the Revenue Act, however, the same were restored on the letter sent by the Govt. and the case was on account of amical attitude of the Commissioner. His detailed explanation along with the report submitted by Deputy Commissioner was examined and ultimately I have come to the conclusion that no allegation is proved against him therefore charge sheet issued to him is dropped.”

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As per Section 197 Cr.P.C., no Court shall taken cognizance of offence against a public servant without the previous sanction of the competent authority.

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The Apex Court in P.S.Rajya vs. State of Bihar (1996) 9 SCC 1 in Para 17 of the said judgment has held as under:-

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“At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental

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Crl.Misc. No. M-18337 of 2009 (O&M)

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proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it. On these premises, if we proceed further then there is no difficulty in accepting the case of the appellant. For if the charge which is identical could not be established in a departmental proceedings and in view of the admitted discrepancies in the reports submitted by the valuers one wonders what is there further to proceed against the appellant in criminal proceedings.”

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In State of Haryana vs. Bhajan Lal, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-

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“The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482,Cr.P.C. Can be exercised by the High Court 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 chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-

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(1)Where the allegations made in the first information report or the complainant, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any

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Crl.Misc. No. M-18337 of 2009 (O&M)

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offence or make out a case against the accused.

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(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.

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(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.

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(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 Magistrate as contemplated under Section 155(2) of the Code.

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(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.

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(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 aggrieved party.

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Crl.Misc. No. M-18337 of 2009 (O&M)

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(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously

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instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

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Thus, in the facts and circumstances of the present case, the continuation of criminal proceedings against the petitioner would be nothing but an abuse of process of law as the petitioner has been found to be innocent during departmental inquiry and no sanction for prosecution of the petitioner has been granted by the competent authority.

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Accordingly, this petition is allowed. FIR No. 98/03 dated 2.4.2003 registered at Police Station Civil Line, Amritsar under Sections 409, 467, 468, 471,120-B IPC and all subsequent proceedings arising therefrom are quashed.

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( Sabina ) Judge

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September 17,2010 arya

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Crl.Misc. No. M-18337 of 2009 (O&M) 7

Rajesh Sharma v. State of Punjab and Ors.

Case brief

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Rajesh Sharma v. State of Punjab and Ors.

Case brief

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