Tuesday 5 September 2017

Sanjay Shrivastava, aged about __Years, S/o Mr. Mahesh Prasad Shrivastava, H.No.125 Uttariya Nehru Nagar Patna 13 Bihar Currently R/O At Bagh Mugaliya Bhopal , (Madhya Pradesh)

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
CRIMINAL REVISION NO.                OF 2017
APPLICANT/            :  Sanjay Shrivastava, aged about __Years,
Accused                            S/o Mr. Mahesh Prasad Shrivastava, H.No.125 Uttariya Nehru Nagar Patna 13 Bihar Currently R/O At Bagh Mugaliya Bhopal , (Madhya Pradesh)

VERSUS

NON-APPLICANT/           :       THE STATE OF MADHYA PRADESH
Prosecution                        P.S. KOTWALI KATNI , (MADHYA PRADESH)

Crime No. : 958/2015
offences : Sections 420, 467, 468, 471 and 34 of the IPC


CRIMINAL REVISION UNDER SECTION 397/ 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 (NO. 2 OF 1974)


Being aggreived by the Order dated 28.04.2017 passed by the Court of IVth Additional Session Judge, Katni in the matter of the State of Madhya Pradesh V/s Sanjay Kumar Shrivastava & Anor. in the file of Session Trial No. 2700063 of 2016, the applicant/ accused named above most humbly and respectfully begs to this revision petition on following facts and grounds amogenst the others :

Material Facts of the Case :

1.   This is the first revision petition against the impugned Order before this Hon’ble High Court. Applicant has not filed any other revision petition against the impugned Order before any Court of Law.


2.   Crime No.958/2015 registered at Police Station Kotwali, Katni against him and co-accused persons namely, Akash Deep, Ritesh Kumar Sinha and Rajesh Sinha for the offences punishable under Sections 420, 467, 468, 471 and 34 of the IPC. According to the prosecution, on 04.10.2015, complainant Ved Prakash Mishra lodged the written FIR alleging that an Organization by the name of Abhinav Prayas, Headquarters at Baghsewania, Bhopal advertised positions for Block In-charge in the newspapers some time in April, 2010. Thereupon, he contacted on telephone co-accused Rajesh Sinha who was the Project Head of the organization. He directed him to come over to the headquarters of the organization for interview. Co-accused persons namely, Akash Deep and Rajesh Sinha interviewed him and appointed him as Block In-charge of Badwara Block of Katni district. They explained him the scheme of the organization. According to them, the organization is linked with the Life Insurance Corporation of India and the organization does insurance of the villagers through their appointees at micro level upon the annual premiums of Rs.315/, Rs.350/- and Rs.400/- for a period of five years. Upon completion of five years, the insurer will get Rs.1800/-, Rs.1950/-, Rs.2250/- depending upon the annual premium which he/she has chosen. In this regard the applicant and the co-accused persons had organized a camp in his Block in which the officers of L.I.C. of India also participated. He had also appointed persons at Panchayat levels. He and his appointees collected near about Rs.57,000,00/- (rupees fifty seven lac) which he had deposited in the bank accounts of the accused persons. After the maturity period of five years, he asked co-accused Akash Deep to pay back the money with interest to the insurers as they are demanding the same, but he had adopted dilly-dally approach in this regard. Thereupon, he brought pressure upon him to return the money to the insurers. He gave him three bank cheques the total amount of them was Rs.1,50,000/- (rupees one lac fifty thousands). However, the bank dishonoured the cheques. As such, the accused persons cheated him and the insurers. Copy of the complete challan is filed herewith and marked as Annexure A-1.

3.   It is humbly submitted that the letter dated 10.04.2010, the applicant was appointed by the organization as CLAIM VERIFICATION OFFICER. Thus, the applicant had nothing to do with the field appointees of the organization. After referring to the letters dated 05.12.2014, applicant submits that the applicant resigned as CLAIM VERIFICATION OFFICER and on the same date his resignation was accepted by the Project Head of the organization. He submits that the complainant has stated in the FIR that he had deposited the money in the bank account of the applicant bearing No.20054426673 with the State Bank of India. Applicant submits that the police had obtained a copy of the statement of accounts of the applicant's said bank account from the concerned branch of the Bank. After referring to the statement of accounts of the applicant from the dates between 29.04.2010 and 05.12.2014, the date of resignation of the applicant from the organization, applicant submits that the complainant had not deposited any amount in his bank account. Applicant submits that the complainant has attached bank-deposit slips with his complaint claiming that he had deposited the monies on time to time in the bank accounts of the applicant and the co-accused persons. But there is no bankdeposit slips, whereby he had deposited the amount in the aforesaid bank account of the applicant. Thus, the applicant has not taken the money from the complainant.
4.   The Court belwo without apprecating the true facts and Law framed charges mecahnically for the offences punishable under Sections 420, 467, 468, 471 of the Indian Penal Code. Copy of the Charge- sheet vide Order dated 28.04.2017. Certified Copy of the Order dated 28.04.2017 passed by the Court of IVth Additional Session Judge, Katni in the matter of the State of Madhya Pradesh V/s Sanjay Kumar Shrivastava & Anor. in the file of Session Trial No. 2700063 of 2016, is filed herewith and marked as Annexure A-2. Hence this first criminal revision petition on following amongest the others :

GROUNDS URGED

A.   For that, Life Insurance Corporation of India (LIC) is an Indian state-owned insurance group and investment company headquartered in Mumbai. It is the largest insurance company in India with an estimated asset value of Rs.1,560,482 crore (US$240 billion). As of 2013 it had total life fund of Rs.1433103.14 crore with total value of policies sold of 367.82 lakh that year. The Life Insurance Corporation of India was founded in 1956 when the Parliament of India passed the Life Insurance of India Act that nationalised the private insurance industry in India. Over 245 insurance companies and provident societies were merged to create the state owned Life Insurance Corporation. It is govrned by Life Insurance Corporation Act, 1956, Insurance Act of 1938 and the Insurance Regulatory and Development Authority Act of 2000.

B.   For that, In the case of "P. Eswara Reddy v. State of Andhra Pradesh, 1987 (1) Crl. LR 1980", it was observed that mere dishonor of a cheque for an antecedent debt does not amount to cheating. Mere evasion or deferment in the realization of the amount due which amounts to a pecuniary advantage obtained by the accused, cannot under the Indian Law be treated as a penal offence.
C.   For that, It was explained in the case of "Anil Kohli v. State (NCT of Delhi), 2002 (61) DRJ 227 (DB)" that to deceive is to induce a man to believe that a thing is true which is false and which a person practising the deceit knows or believes to be false. It must be shown that there existed a fraudulent and dishonest intention at the time of commission of offence.

D.  For that, In the present case there are no specific allegations against the present accused and having made any fraudulent or dishonest representation or of having committed breach of trust or misappropriation of the goods of the complainant. It is significant to note that similar were the conclusion made in the charge-sheet vis a vis the present accused.

E.   For that, Criminal Law does not recognize the principle of vicarious liability of the CLAIM VERIFICATION OFFICER for any offence committed by the NGO under any provisions of Indian Penal Code. For bringing any of the offence under IPC against any person it has to be shown that the specific ingredients of the offence were committed by the accused persons.

F.   For that, The Supreme Court in the case of "S. K. Alagh v. State of Uttar Pradesh & Ors., (2008) 5 SCC 662" had noted that the Penal Code, save and except some provisions specifically providing therefor, does not contemplate any vicarious liability on the part of a party who is not charged directly for commission of an offence. If and when a stature contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself. (Also in "Sabitha Ramamurthy v. R. B. S. Channabasavarthya, (2007) 1 SCC (Crl.) 621".)

G.  For that, It is only Section 141 of NI Act, which has made the Directors and the specified officers of the accused Company responsible for the acts of the Company but that too, subject to the conditions of them being involved in the day to day affairs of the Company. Even u/s 141 N.I. Act there has to be clear and specific averment in the complaint that when the offence was committed, the accused person was in-charge of and was responsible for the conduct of the business of the Company as was observed in the case of "S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr., 2005 (4) RCR (Criminal) 141". Therefore Section 138 and 141 by which statutory fiction makes the director responsible for the act of the Company also provides that there has to be specific averment that Director was involved in the day to day affair of the Company. In the present case after due investigations it had been concluded that the involvement of the accused in the day to day affairs of the business of the Company was not established.

H.  For that, there is no allegation whatsoever of any of the ingredient of 420, 467, 468, 471 of the IPC alleged against the present accused. In the circumstances, it cannot be held that a prima facie case for the offences u/s 420, 467, 468, 471 and 34 of the IPC are made out against the present accused. In Som Mittal v. Govt. of Karnataka, the Supreme Court, among other things, said, when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court under Section 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice. In R.P. Kapur v. State of Punjab the Apex Court summarised some of the categories of cases where inherent power should be exercised to quash a criminal proceeding against the accused, stating: (SCR p. 393)
(i) Where it manifestly appears that there is a legal bar against the institution or continuance e.g. Want of sanction;
(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
Gajendragadkar, J. who spoke for the Court in Kapur’s case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court’s inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the strait-jacket of a rigid formula.
I.    The Hon’ble Bombay High Court, in the case of Abasaheb Homname versus State of Maharashtra, CRIMINAL APPLICATION NO. 766 OF 2007, in their Full Bench Judgment, in Para 5.2 observed as – the power of the court to annul or overthrow, which is an exception to let the normal procedure of law specified in the Code be followed, should be exercised sparingly and subject to the satisfaction of the condition precedents to exercise of such power. The doctrine of inherent power is the basic support for exercise of such power. The court inherently would be couched with such power to do justice and to ensure that basic rule of law is not frustrated. Wherever the court has to implement orders, to prevent the abuse of process of law and to meet the ends of justice, it is entitled to take recourse to its inherent powers including that of quashing. Power of the court to quash, thus, is an inbuilt power to do justice and in fact, is a power of great substance which categorically finds its place in the provisions of section 482 of the Code. Power to quash is one of the powers where the court would be empowered to quash the FIR or even a criminal proceeding in furtherance thereto;
     i.        In Para 7.9 observed – Recourse to inherent powers under section 482 would be permissible even in non-compoundable offences for quashing an FIR and/or criminal proceedings and this power of the court is not controlled and/or moderated by any of the provisions of the Code including Section 320 of the Code;
    ii.        In Para 2.5, the Court observed as –  A bare reading of the above provision indicates that the Legislature intentionally worded this provision widely and, thus, necessarily would have larger impact and ramifications on the procedural law governing enquiry, investigation and trial in criminal cases. It is a well-known concept that law is not static and it develops and varies according to the progress of time and the need of society. Similarly, the provision of section 482 in regard to the inherent powers of the Court is not meant to be static and diverse views have been expressed by different High Courts as well as the Supreme Court.
  iii.        In Para 3.16, the Court observed as –  In a very recent case titled as Hamida v. Rashid @ Rasheed, (2008) 1 SCC 474, the Supreme Court took the view that a Procedural Code, however, exhaustive, cannot expressly provide for all time to come against all the cases or points that may possibly arise, and in order that justice may not suffer, it is necessary that every court must in proper cases exercise its inherent power for the ends of justice or for the purpose of carrying out the other provisions of the Code. It is a well established principle that every Court has inherent power to act ex debito justitiae to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court.
  iv.        In Para 5.6, the Court observed as – Catena of judgments of the Supreme Court can be referred to where the Supreme Court upheld and/or permitted exercise of inherent powers for quashing proceedings. The scope of power under Section 482 was held to be vast to prevent abuse of process of law by inferior Courts and to see that the stream of administration of justice remains clean and pure. The Courts have also taken the view that mere nomenclature of a petition would not matter and even in a petition under Article 226, the Court could take recourse to the provisions of Section 482 of the Code. The legal position was stated to be well settled that when prosecution is sought to be quashed at the earliest stage, the test would have to be applied by the Court as to whether the uncontroverted allegations, as made prima facie, establish the offence. It is for the Courts to take into consideration any special features which appear in a particular case and would justify quashing of the proceedings may be at the preliminary stage.
   v.        In Para 5.14, the Court observed as – When the Court has to consider whether the criminal proceedings should be allowed to continue or the same should be quashed, two aspects are to be satisfied, (i) whether the uncontroverted allegations, as made in the complaint, prima facie establish the offence, and (ii) whether it is expedient and in the interest of justice to permit a prosecution to continue. Applying these two tests, the Supreme Court in the case of M.N. Damani vs. S.K. Sinha and others, (2001) 5 SCC 156, where the accused was charged with offences punishable under Sections 499 and 500 of the IPC, held that the order of the High Court quashing the proceedings was not sustainable. The Supreme Court also relied upon its earlier judgment in the case of Shatrughna Prasad Sinha v. Rajbhau Surajmal Rathi, (1996) 6 SCC 263 and held that on cumulative reading of the complaint, offence was prima facie established and it was not expedient and in the interest of justice to quash the proceedings. The Court also indicated that no special circumstances existed so as to justify the quashing of the proceedings.
  vi.        In Para 5.15, the Court said – In the case of Indian Oil Corporation vs. NEPC India Limited and others, (2006) 6 SCC 736, the Supreme Court, while referring to all its earlier judgments, restated the principles relating to exercise of jurisdiction under Section 482 of the Criminal Procedure Code to quash complaints and criminal proceedings and reiterated the principles as follows:-
“(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c ) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.”
vii.        In Para 5.19, the Court said – Upon plain analysis of the principles of law, stated supra, it can safely be concluded that the court can exercise its inherent power vested in it for quashing the FIR or criminal proceedings free of limitations but with caution, circumspection and sparingly, with reference to the facts and circumstances and the special features of a given case.
viii.        The language of this provision invites liberal construction keeping in view the objects sought to be achieved that no person should be permitted to abuse the process of court or process of law. The penal code is intended to protect society against crime but it certainly, should not be permitted to be used as an instrument to frustrate the very purpose by incorrectly or illegally implicating other persons and thus, abusing the process of court and law both. Power to quash is the discretion of the court and may be exercised sparingly but there will be no occasion for the court to impose on itself unspecified restrictions or limitations in exercise of such powers. Power to quash is an ancillary or essential aspect of inherent powers of the court. The definition of the ‘court’ under section 20 of the Indian Penal Code is not restricted and it includes, obviously, the appellate and revisional court. When a court is exercising its appellate or revisional jurisdiction, it is not divested of its inherent powers. In a given case, the revision petition or even a petition under Article 226 of the Constitution of India would be treated as a petition under section 482 in the discretion of the court and upon satisfaction of the prescribed tests. As already stated above, nomenclature of the petition is not a determinative factor. Essentially, all the courts exercising jurisdiction under the Code of Criminal Procedure could always have the inherent power and could pass such order which may be necessary to achieve the ends of any of the three objects stated in section 482.
  ix.        In Para 7.9, the Court observed as – Recourse to inherent powers under section 482 would be permissible even in non-compoundable offences for quashing an FIR and/or criminal proceedings and this power of the court is not controlled and/or moderated by any of the provisions of the Code including Section 320 of the Code.
   x.        In Para 7.10 THE Hon’ble Court said – We have held that the inherent powers should be used in cases falling in either of the three categories stated in section 482 itself. This wide power must be exercised with caution and circumspection. The inherent powers of the Court of competent jurisdiction can be invoked for quashing the FIR or criminal proceedings but the Court would pass such orders only if the principles laid down in judicial dicta are satisfied and either of the three objects stated in Section 482 of the Code are achieved by exercise of such power. It is neither permissible nor proper for the court to provide a strait-jacket formula regulating exercise of inherent powers under Section 482 of the Code, particularly in relation to quashing, as it would depend upon the facts and circumstances of a given case. No precise and inflexible guidelines or strait-jacket formula or catalogue of the circumstances in which power should or should not be exercised, may be laid down. Still, while recapitulating the enunciated principles in the judgments of the Courts, particularly the Supreme Court in the cases of (i) State of Haryana vs. BhajanLal, AIR 1992 SC 604, (ii) Indian Oil Corporation vs. NEPC India Ltd. , (2006) 6 SCC 736, (iii) Central Bureau of Investigation vs. Ravi Shankar, (2006) 7 SCC 188, (iv) Popular Muthiah vs. State represented by Inspector of Police, (2006) 7 SCC 296, (v) Sanapareddy Maheedhar vs. State of A.P., 2008 AIR SCW 11, and (vi) Som Mittal vs. Government of Karnataka (Criminal Appeal No. 206 of 2008 decided on 21st February, 2008), and other well accepted canons of criminal jurisprudence, we state the principles as under:-
1. The High Court, in exercise of its inherent powers under Section 482 of the Code, may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice very sparingly and with circumspection;
2. Inherent power under section 482 of the Criminal Procedure Code should not be exercised to stifle a legitimate prosecution.
3. Power under section 482 of the Criminal Procedure Code is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law;
4. The inherent power of the High Court can be invoked in respect of matters covered by the provisions of the Code unless there is specific provision to redress the grievance of the aggrieved party;
5. Inherent power under section 482 of the Code overrides provisions of the Code but evidently cannot be exercised in violation/contravention of a statutory provision or power created under any other enactment;
6. Power under Section 482 to quash proceeding should not be used mechanically or routinely, but with care and caution;
7. Such power should be used only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice;
8. Inherent jurisdiction under Section 482 Cr.P.C. may be exercised in following three circumstances.
(i) to give effect to an order under the Cr. P.C.
(ii)to prevent abuse of the process of court; and
(iii)to otherwise secure the ends of justice.
9. Inherent power should be exercised to do the right and undo a wrong;
10. In exercise of inherent power under Section 482 of the Code, Court would be justified to quash any proceeding if the initiation/continuation of such proceeding amounts to ‘abuse of the process’ of court or quashing of the proceeding would otherwise serve the ends of justice’;
11. While exercising inherent power under Section 482 of the Code, High Court must refrain from making imaginary journey in the realm of possible harassment which may be caused to concerned petitioner on account of investigation of FIR or complaint;
`12. While exercising inherent power under Section 482 of the Code, the High Court must all the while be conscious of the fact that its exercise of such power will not result in miscarriage of justice and will not encourage those accused to repeat the crimes;
13. The inherent powers of High Court under Section 482 of the Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Criminal Procedure Code;
14. For the purpose of quashing, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint;
15. The exercise of inherent jurisdiction under Section 482 of the Code should not be such as to harm legitimate expectation of the people and the society, that the persons committing offence are expeditiously brought to trial and if found guilty are adequately punished;
16. Inherent powers may be used only when reasonably necessary for the court to be able to function and courts may not exercise inherent powers merely because their use would be convenient or desirable;
17. The exercise of inherent power would be necessary whenever it is just or equitable and it should be to ensure observance of the due process of law, to prevent improper vexation or oppression and to do justice between the parties and to secure a fair trial; and
18. While passing an order quashing FIR or criminal proceedings, as the case may be, it may be appropriate for the Court to examine the impact of such an order upon the system of administration of criminal justice and the social fabric. This, of course, is not a determinative factor but only a relevant consideration.

J.    For that, A three Judge Bench of the Supreme Court in the case of State of Karnataka vs. L. Muniswamy and others, (1977) 2 SCC 699 clearly stated the principle that in exercise of its wholesome power, the Hon’ble High Court was entitled to quash a proceeding as this power is to ensure a salutary public purpose that Court proceedings ought not to be permitted to degenerate into a weapon of harasssment or persecution.

K.   For that, The Hon’ble High Court has powers to stay criminal proceedings in any subordinate court and such power can be exercised even in cases in which motion for stay had not been first made to the trial court. Shaikh Davud versus Yusuf – (1954) Travan 1326.

L.   For that, No doubt the Magistrate can discharge the accused at any stage of the trial, if he considers the charge to be groundless. But that does not mean that the accused cannot approach beofore the Hon’ble High Court under section 482 of CrPC or under Article 227 of the Constituion of India to have the proceedings quashed against him and still he must go the agony of criminal trial. Pepsi Foods Ltd versus Special Judicial Magistrate – AIR 1998 SC 128.

M. For that, That the trial would be an exercise in futility, an innocent person would not be allowed to be subjected to the hardship and humiliation of full dress trial, even though on any reckoning, it would never succeed. The expression “ends of justice” and “to prevent the abuse of the process of the court”, used in this section, are intended to work both ways, either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex-facie well merited prosecution is throttled at the threshold, without allowing the material in support of it to see the light of the day. PNB Finance versus Gita Kriplani, ITO New Delhi – (1985) 1 Crimes 1094, 1100 (Del).

N.  For that, In the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, AIR 2008 SC 251 while referring to the law, both on scope and ambit of court’s power under section 482 and the principles governing for quashing of the criminal proceedings, the court said that every High Court has inherent power to act ‘ex debito justitiae’ to do real and substantial justice for the administration of which alone it exists, or to prevent abuse of the process of the court. Authority of the court exists for the advancement of justice and if any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. In that case, the Supreme Court had quashed the proceedings taken out under sections 420, 120-B and 467 of the Indian Penal Code against the accused.

O.  For that, This section was enacted to emphasize the fact that the HC has the widest jurisdiction to pass orders to secure the ends of justice and therefore if the HC feels that ends of justice require that an order should be made in an application then HC will entertain the Application and make the necessary orders even though the application is not one contemplated by the code. State of Bombay versus Nilkanth Shripad Bhave – AIR 1954 Bom 65.

P.   For that, Hon’ble High Court can revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same by virtue of its inherent powers reserved under this section. Raj Narain (1959) a All 441 (FB); AIR 1963 Mys 326.

Q.  The Hon’ble Supreme Court has held that the following principles would govern the exercise of the inherent jurisdiction of HC given by section 482 –
     i.        The power is not to be resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party.
    ii.        To prevent abuse of the process of the court or to secure the ends of justice.
  iii.        It should not be exercised as against the express bar of the law engrafted in any other provision of the code.
  iv.        Madhu Limaye versus State of Maharashtra – AIR 1978 SC 47;
   v.        Lalit Mohan Mandal versus Dehayendra Nath Chaterjee – AIR 1982 SC 785.
R.  For that, The inherent powers of the Hon’ble High Court is a wide and wholesome power. If the court has to examine and determine whether the continuation of criminal proceedings would be just or would be improper, there is no reason why there should be any limitation on the powers of the court to look into all the materials available on record. There is nothing in law to place any such limitation on the powers of the Hon’ble High Court. Surendra Kumar Yadav versus State of Bihar – 1989 CrLJ 1967 (Pat).

S.   For that, In Municipal Corporation of Delhi v. R.K. Rohtagi [1983 (1) SCR 884 at p. 890]: AIR 1983 SC 67 at p. 70, it is reiterated: “It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or substracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under S. 482 of the present Code.”

T.   For that, In the case of State of Bihar vs. Muradali Khan and others, AIR 1989 SC 1 held as under: In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that- there should be meticulous analysis of the case before the trial to- find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant , or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the .accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi), Rajesh Bajaj v. State NCT of Delhi and State of Karnataka v. M. Devendrappa.]” (emphasis supplied)

U.  For that, Under 482, the Hon’ble High Court is to see that there is no abuse of the process of the court. If there is any inordinate delay or laches in the prosecution without any progress in the same, it would amount to harassment of the petitioner warranting interference under 482. 1991 CrLJ 970 at page 972 (Bom)

V.   For that, Only in cases where the Hon’ble High Court finds that there has been failure of justice or misuse of judicial mechanism or an order was not correct, the HC may be justified in exercising jurisdiction under section 482. Ved Prakash versus State of UP 2003 CrLJ 2080 at page 2081 (All)

W. For that, Nagawwa versus Veeranna – AIR 1976 SC 1947 – principle laid down as circumstances under which process issued by the Magistrate could be set aside or quashed under section 482 of CrPC.

X.   For that, In the recent case of State of Punjab versus Davinder Pal Singh Bhullar – 2012 AIR SCW 207 – Para 27 – If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order, for the reason, that in such eventuality the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. 1970 CrLJ 378; 1985 CrLJ 23; AIR 1987 Raj 83 (FB); AIR 1972 SC 1300; AIR 1981 SC 1156; (2009) 2 SCC 703; AIR 2011 SC 1232.
     i.        Para 31: Inherent powers, however, can be exercised by the High court only when there are change of circumstances in the case and in the changed circumstances the High court can, in the exercise of inherent powers, pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. (1990) 2 SCC 437 : AIR 1990 SC 1605.
    ii.        Para 33: Inherent powers cannot be resorted if there is specific provision in the CrPC for the redressal of the grievance of the aggrieved party; or where alternative remedy is available.
  iii.        Para 40: Inherent powers can be exercised only to prevent the abuse of the process of the court and to secure the ends of justice. However, said powers can be exercised provided there is no prohibition under the provisions of CrPC for passing such an order; and there is no provision under which the aggrieved party can seek redressal of its grievance.
  iv.        Application under 482 can be entertained only when the proceedings are pending in the subordinate court. In case, the proceedings have attained finality, the inherent powers cannot be exercised. The party aggrieved may approach the Appellate/Revisional forum. Inherent jurisdiction can be exercised if injustice is done to a party for example – a clear mandatory provision of law is overlooked or where different accused in the same case are being treated differently by the subordinate court.
   v.        State of Haryana versus Bhajanlal – Guidelines – AIR 1992 SC 604.

Y.   For that, Microinsurance is the protection of low-income people (those living on between approximately $1 and $4 per day( below $4) against specific perils in exchange for regular premium payment proportionate to the likelihood and cost of the risks involved. This definition is exactly the same as one might use for regular insurance except for the clearly prescribed target market: low-income people. The target population typically consists of persons ignored by mainstream commercial and social insurance schemes, as well as persons who have not previously had access to appropriate insurance products. Whilst this and similar organisations in India were setting the landscape for micro insurance products, India’s Insurance Regulatory and Development Authority (IRDA) was also looking at micro insurance. In 2003 they set up a consultative group who published a report in 2004, outlining their proposals for micro insurance in the Indian marketplace. Their goals were clear:
     i.        Enable micro insurance to be an integral part of the country’s wider insurance system
    ii.        Utilise the resources of savings and credit cooperatives, NGOs, and self-help groups to act as conduits, soliciting insurance business and increasing the insurance penetration levels
  iii.        Formalise / establish local institutions who can provide micro insurance
  iv.        Introduce suitable regulations to enable insurers to design, distribute and service micro-insurance products plus release their obligations to the rural and social sectors as per provisions of the Insurance Act, 1938
Z.   For that, This was at a time when insurance buying was primarily driven by tax incentives or mandated by a financier and only really accessible to those in the top quartile of society, so heading straight for the bottom quartile could be difficult. However, you have to give them credit; it is the less fortunate in India who are in the greatest need for the security provided by insurance products. Let’s face it, we are talking about a large proportion of India’s society exposed to the adulterated surroundings they live in, an environment which forces them to seek costly medical care, and incomes that are dependent on sparse resources  vulnerable to the same surroundings.

Applying Micro Insurance to the Non-Wealthy
AA.               After a period of consultation, in November 2005 the Insurance Regulatory and Development Authority introduced a set of regulations, specifically covering micro insurance. It created a charter for insurers to offer micro insurance products targeting both rural and urban inhabitants. Its primary target population included micro-entrepreneurs, small farmers and the landless, women and low-income people, those typically ignored by mainstream commercial and social insurance schemes. From 2005 to 2001 progress was slow, micro insurance in India did not perform against the original set of goals and take up was low against expectations. This prompted the IRDA to refresh the regulation in order to:
     i.        Distinguish between micro insurance and social security schemes when reporting, providing a better understanding of the take up of specifically micro insurance
    ii.        Expand the definition of what constitutes a micro insurance agency, opening up new distribution channels
  iii.        Introduce new products, widening the marketplace
  iv.        Expand the regulatory oversight and bring formality to the purchasing process, protecting the interests of the policyholder

BB.               For that, To this day modifications continue to be proposed by the IRDA. Current products in the market include; endowment, savings, pension, life, health, property and personal accident. The Indian government’s own Department of Financial Services: Insurance Division, include micro insurance as a major initiative; they look to economically empower those sections of society who are otherwise denied access to financial services in the form of micro insurance. It’s difficult to determine exactly why micro insurance hasn’t taken off. Many have cited the buyer’s liquidity, perceived value add or perhaps general insurance awareness as reason why buyers don’t purchase. Hopefully as the Indian mainstream insurance market evolves, micro insurance will flourish behind, opening up opportunities for the consumer and the seller.

CC.               Any other ground (s) shall be raised by the applicant with due permission of Hon’ble High Court at the time of hearing of this revision petition.


PRAYER
IT is therefore most humbly and respectfully prayed that Order dated 28.04.2017 passed by the Court of IVth Additional Session Judge, Katni in the matter of the State of Madhya Pradesh V/s Sanjay Kumar Shrivastava & Anor. in the file of Session Trial No. 2700063 of 2016, may kindly set-aside, in the larger instrest of Justice.

Any other relief (s) deemed fit and proper may also be granted.

PLACE : JABALPUR


DATED :                          ADVOCATE FOR THE APPLICANT

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