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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