Allahabad High Court
Indrakant Jha vs State Of U.P. And Another on 30 September, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:162304 Reserved on: 23.08.2024 Delivered on: 30.09.2024 Court No. - 77 Case :- APPLICATION U/S 482 No. - 10933 of 2024 Applicant :- Indrakant Jha Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manjari Singh Counsel for Opposite Party :- Atul Mehra,G.A. Hon'ble Rajeev Misra,J.
1. This application under Section 482 Cr.P.C. has been filed by charge sheeted accused Indrakant Jha challenging the police report/charge sheet dated 21.12.2023 submitted by Investigating Officer in terms of Section 173(2) Cr.P.C. in Case Crime No. 455 of 2023, under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad, the Cognizance Taking Order/Summoning Order dated 02.02.2024 passed by Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad in consequential Criminal Case No. 186 of 2024 (State Vs. Indrakant Jha and Others), under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad as well as the entire proceedings of aforementioned criminal case now pending in the Court of Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad.
2. I have heard Mr. Amit Saxena, the learned Senior Counsel assisted by Mrs. Manjari Singh, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Sanjeev Singh, the learned Senior counsel assisted by Mr. Atul Mehra, the learned counsel representing first informant-opposite party-2.
3. Present application came up for admission on 05.04.2024 and this Court passed the following order:-
“1. Heard Mrs. Manjari Singh, learned counsel for the applicant, Mr. Vinod Kumar Tiwari, learned A.G.A. for the State and perused the record.
2. The instant application under section 482 Cr.P.C. has been filed seeking quashing of the entire criminal proceedings as well as impugned summoning order dated 02.02.2024 passed by the Additional Chief Judicial Magistrate, Court No.2, Ghaziabad in Case No.186/2024 arising out of Case Crime No.455 of 2023 (State Vs. Indrakant Jha and Others) under Sections 384, 406 and 120-B of I.P.C., P.S.- Crossing Republik, Ghaziabad pending before the Court of Additional Chief Judicial Magistrate, Court No.2, Ghaziabad.
3. Learned counsel for the applicant raised various issues with regard to the fact that the applicant has never worked with the company namely, Crossings Infrastructure Private Limited and he was, in fact, working with Vibgyor Facility Management Private Limited. Learned counsel for the applicant submits that there was no proper authorization to the opposite party No.2 to file an application under Section 156(3) of Cr.P.C. whereby the instant F.I.R. has been lodged against the applicant herein.
4. In view thereof, issue notice to opposite party No.2 through Chief Judicial Magistrate, concerned.
5. Put up this matter on 29.04.2024, as fresh.”
4. Pursuant to above order dated 05.04.2024, pleadings have been exchanged between the parties.
5. Counsel for the parties submit that since affidavits have been exchanged between the parties, the matter be finally decided at the admission stage itself without formally admitting the present application and on the basis of material on record. In view of the consent of counsel for the parties and as provided under Rules of the Court, present application is being disposed of finally at the admission stage itself without formally admitting the same and calling for the record.
6. The matter was heard on 23.08.2024 with liberty to the counsel for the parties to file their written submissions. They have, accordingly, filed the same, which are on record.
7. It transpires from record that Crossings Infrastructure Private Limited is a consortium of Promoters (hereinafter referred as ‘Promoter’) who had jointly developed the project. In the aforesaid project, a maintenance agency, which is in the name and style of VIBGYOR Facility Management Private Limited, had been installed by the promoter Crossings Infrastructure Private Limited for maintenance of the common areas and facilities.
8. Record shows that applicant Indrakant Jha was appointed as a Senior Account Executive on 06.06.2011 in the aforesaid maintenance company i.e. VIBGYOR Facility Management Private Limited. Pursuant to the aforementioned appointment letter, applicant Indrakant Jha is said to have joined his services on 13.06.2011. He worked as such up till 10.08.2021.
9. Ultimately, applicant Indrakant Jha resigned from the aforesaid company by means of a communication dated 15.07.2021. The resignation submitted by applicant was accepted by the company. Accordingly, a relieving letter dated 10.08.2021 followed by an appreciation letter dated 10.08.2021 were issued to the applicant. This was followed by a settlement agreement dated 15.12.2021, whereby full and final settlement of the claims of applicant Indrakant Jha with the company aforementioned was settled. Accordingly, no liability was said to be due against applicant.
10. Subsequently, applicant Indrakant Jha formed his own company in the name and style of CAREBLEND FACILITY MANAGEMENT PRIVATE LIMITED.
11. The promoter namely Crossings Infrastructure Private Limited handed over the society (GH07) to the Crossings Republik Infrastructure Apartment Owners Association on 02.02.2023.
12. The contract, regarding maintenance of common areas and other maintenance, was previously given to VIBGYOR Facility Management Private Limited. The said contract was operational till January, 2023.
13. That subsequently, the Apartment Owners Association gave contract to the company of applicant for maintaining common areas and other maintenance, vide letter dated 19.01.2023.
14. That thereafter, as a counterblast to above and being a business rival, the company in which, applicant was previously working namely VIBGYOR Facility Management Private Limited passed a resolution dated 01.02.2023, whereby a decision was taken to lodge a criminal complaint against applicant and others.
15. Pursuant to the aforesaid resolution, an application dated 27.03.2023 was given to the Commissioner of Police, Ghaziabad in terms of Section 154(4) Cr.P.C. for a direction to the Station House Officer of concerned Police Station to register the FIR to be lodged by first informant-opposite party-2. However, no consequential action appears to have been taken on aforesaid application.
16. Thereafter, an application dated 05.04.2023 under Section 156(3) Cr.P.C. was filed by first informant-opposite party-2 Dharmendra Dhama before the IInd Additional Chief Judicial Magistrate, Ghaziabad. Same was registered as Application NO. 323 of 2023 (Dharmendra Dhama Vs. Sanjay Singh and Others), under Section 156(3) Cr.P.C., Police Station-Crossing Republik, District-Ghaziabad.
17. Jurisdictional Magistrate passed an order dated 01.06.2023 directing the police of Police Station concerned to submit it’s report. In compliance of above order dated 01.06.2023, the Assistant Commissioner of Police, Waive City, Commissionerate Ghaziabad submitted his report dated 19.06.2023 categorically stating therein that the allegations made in the application under Section 156(3) Cr.P.C. filed by complainant now first informant-opposite party-2 are false and concocted. No evidence with regard to theft or extortion was submitted by the first informant. Furthermore, during course of enquiry, no evidence could be collected regarding allegations made in aforementioned application.
18. It appears that ultimately, the concerned Jurisdictional Magistrate allowed the application dated 05.04.2023 under Section 156(3) Cr.P.C. filed by opposite party-2.
19. Thus in compliance of the order passed by the Jurisdictional Magistrate, an FIR dated 03.11.2023 came to be registered as Case Crime No. 455 of 2023, under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad at the behest of first informant-opposite party-2. In the aforesaid FIR, 4 persons namely (1) Sanjay Singh, (2) Shivam Gupta, (3) Indrakant Jha and (4) Shivam Gahlot have been nominated as named accused.
20. Gravamen of the allegations made in aforesaid FIR is to the effect that applicant and Shivam Gupta, who are employees of the company (i.e. M/s VIBGYOR Facility Management Private Limited), in criminal conspiracy with Sanjay Singh and Shivam Gahlot by committing a breach of trust have stolen the data of company including confidential information. When the informant company acquired knowledge regarding aforesaid theft, it, accordingly, made a demand for return of the documents so stolen. On this, a demand of Rs. 50 lacs was made. On the basis of records so stolen, applicant Indrakant Jha made contacts with customers of informant company on account of which, informant company started making losses.
21. The FIR further records that all the accused started blackmailing informant company by making a demand of Rs. one crore, failing which, the stolen data shall be used to make complaints with different departments. In furtherance of above, messages were also sent on Whatsapp. The FIR further alleges that various projects have come to an end on account of the activities of accused.
22. Since the FIR is an ad-verbatim copy of the application dated 05.04.2023 filed by first informant-opposite party-2 under Section 156(3) Cr.P.C., therefore, paragraphs 4, 5 and 6 of the said application/FIR, which have a material bearing on the submissions urged by the counsel for parties and fate of the present application need to be noted. Accordingly, the same are extracted herein below:-
“4- यह कि संजय सिंह निवासी फ्लैट नं0 14112 जी0एच0 07 क्रासिंग रिपब्लिक व शिवम् गहलौत जो आपराधिक किस्म के व्यक्ति है तथा संजय सिंह व शिवम् गहलौत के विरुद्ध अन्य कई व्यक्तियों द्वारा रंगदारी मांगने व जबरन अवैध वसूली के सम्बन्ध में पुलिस में शिकायत व प्रथम सूचना रिपोर्ट दर्ज करायी गयी है।
5-यह कि प्रार्थी की कम्पनी के कर्मचारी इन्द्रकान्त झा व शिवम् गुप्ता ने संजय सिंह व शिवम् गहलौत के साथ मिलकर एक आपराधिक षडयन्त्र के तहत क्रासिंग रिपब्लिक इन्फास्ट्रक्चर प्राइवेट लिमिटेड, की नौकरी छोड़ दी. तथा बिना कम्पनी की जानकारी के कम्पनी का समस्त डाटा, गोपनीय जानकारी, लेजर रिकार्ड, रसीदे, इलैक्ट्रिसिटी डिपार्टमेन्ट रिकार्ड, नक्शे, जी0डी0ए0 सम्बन्धी रिकार्ड जो कम्पनी ने कर्मचारी होने के नाते अमानत के रुप में उन्हें दिये थे, वह सभी रिकार्ड बदनियती से कम्पनी को ब्लेकमेल करने की नीयत से अपने साथ ले गये।
6- यह कि जब कम्पनी को इस सम्बन्ध मे पता चला तो इन्द्रकान्त झा व शिवम् गुप्ता से अपने सभी कम्पनी सम्बन्धी रिकार्ड वापिस करने को कहा किन्तु उन्होने स्पष्ट रूप से कहा कि यह बेशकीमती रिकार्ड है, चाहिये तो 50 (पचास लाख रुपये) देने होगे तथा रिकार्ड वापिस नही किया।”
23. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C to find out the veracity of the allegations made in FIR as well as the complicity, if any, of named accused/others in the crime in question. He, accordingly, examined various witnesses. On the basis of above and other material collected by him, during course of investigation, the Investigating Officer came to the conclusion that offence complained of is prima-facie established and complicity of named accused in the crime in question is also apparent. He, accordingly, opined to submit the charge sheet. Resultantly, Investigating Officer submitted police report/charge sheet dated 21.12.2023 in terms of Section 173(2) Cr.P.C. in Case Crime No. 455 of 2023, under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad, whereby all the 4 named accused have been charge sheeted under Sections 384, 406, 120-B IPC.
24. Upon submission of aforementioned police report, the Jurisdictional Magistrate i.e. Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad took cognizance upon same in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. and simultaneously summoned the charge sheeted accused in consequential Criminal Case No. 186 of 2024 (State Vs. Indrakant Jha and Others), under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad, vide Cognizance Taking Order/Summoning Order dated 02.02.2024.
25. Thus feeling aggrieved by the police report/charge sheet dated 21.12.2023, the Cognizance Taking Order/Summoning Order dated 02.02.2024 as well as the entire proceedings of aforementioned criminal case now pending in the Court of Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad, applicant, who is a charge sheeted accused, has now approached this Court by means of present application under Section 482 Cr.P.C.
26. Mr. Amit Saxena, the learned Senior counsel assisted by Mrs. Manjari Singh, the learned counsel for applicant submits that the impugned FIR giving rise to present criminal proceedings is simply a bundle of facts devoid of material particulars qua the crime in question. No pin pointed or specific/definite allegation has been made therein. As such, the allegations made in the FIR are vague and bald allegations. They do not even go to show that the ingredients of the Sections, under wich, the FIR was registered, are satisfied. Consequently, no criminality can be inferred against applicant on the basis of same.
27. On the above premise, it was next contended by the learned Senior counsel that though FIR is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case. In support of above, he has referred to the following judgments of Supreme Court in (i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268, (ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641 and (iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543. Referring to the FIR, he submits that in the absence of material particulars with regard to the date of theft, the date on which, extortion was committed, the date on which, any valuable security was transferred in the FIR, clearly goes to show that vague and omnibus allegations have been made in the FIR. In short, the FIR does not even disclose the basic prosecution case. Since the criminal prosecution of a person is a serious thing, therefore, the criminal law cannot be set into motion against prospective accused on the basis of vague, bald and unfounded allegations.
28. On the issue that criminal prosecution of an accused cannot be sustained on the basis of vague and bald allegations in the FIR i.e. such allegations, which are devoid of material particulars qua the crime in question, which in present case is theft and extortion but neither the date of the alleged theft, the date of knowledge of the alleged theft, the date on which, extortion was committed and the date on which, any valuable security was transferred and in what manner, it was committed having not been disclosed, the learned Senior counsel would submit that the very prosecution of accused-applicant cannot be sustained. In support of above, he has referred to the following judgments of Supreme Court as well as this Court;- (i) Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, (ii). Neelu Chopra and Others Vs. Bharti (2009) 10 SCC 184 and (iii). Shabban Khan and Others Vs. State of U.P. and Another, 2024 SCC OnLine All 4844.
29. It was further contended by the learned Senior counsel for applicant that in the body of FIR the date of occurrence has not been mentioned. Similarly, in the date and time column of the FIR qua the occurrence, no date and time has been mentioned. According to the learned Senior counsel for applicant, it is an undisputed fact that applicant worked with the company of the first informant from 2001 up to 2011. He, ultimately, resigned from the company of the first informant on 15.07.2021 and the final settlement between the applicant and informant company took place on 15.12.2021. Up to this stage, there was no allegation against applicant that he has stolen data of the informant company nor any demand was made by informant company to the applicant. Attention of the Court was then invited to the written submissions filed by the learned counsel representing first informant-opposite party-2. With reference to the same, the learned Senior counsel for applicant contends that the company is alleged to have acquired knowledge about the alleged theft committed by the named accused and thereafter, a resolution dated 15.12.2022 came to be passed by the informant company (Annexure-C.A.-4 to the counter affidavit). However, even in the aforesaid resolution, the date of knowledge of the alleged theft has not been mentioned. He further submits that as per the own case of the company on whose behalf, the first informant-opposite party-2 has lodged the FIR, the resolution to file a complaint was passed by the company of the first informant-opposite party-2 namely VIBGYOR Facility Management Private Limited on 01.02.2023 but the application under Section 156(3) Cr.P.C. was filed by the first informant-opposite party-2 on 05.04.2023 i.e. after expiry of a period of more than two months from the date of the said resolution.
30. In furtherance of above, learned Senior counsel took the Court to the FIR giving rise to present criminal proceedings, copy of which is on record as Annexure-12 to the affidavit. On basis thereof, he submits that there is absolutely no explanation in the FIR regarding the delay in lodging the FIR either from the date of knowledge about the alleged theft or from the date of resolution of the company i.e. 15.12.2022 (Annexure-C.A.-4 to the counter affidavit). It is thus urged that since the delay in lodging the FIR has not been sufficiently explained, therefore, the present criminal proceedings arising out of the said FIR cannot be sustained. Consequently, the same are liable to be quashed by this Court. To buttress his submission, he has referred to the following judgements of Supreme Court (i). P. Ramchandra Rao Vs. State of Karnataka, (2002) 4 SCC 578, (ii). P. Rajagopal and others Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8), (iii). Hasmukhlal D. Vora and Another Vs. The State of Tamil Nadu, 2022 SCC OnLine 1732 , (iv). Sekaran Vs. State of Tamil Nadu, (2024) 2 SCC 176 and (v) Shivendra Pratap Singh Thakur @ Banti Vs. State of Chhattisgarh and Others, 2024 SCC OnLine SC 938.
31. It was lastly contended by the learned Senior counsel for applicant that the present criminal proceedings are not only malicious but also an abuse of the process of Court. It is an undisputed fact that applicant was previously working as Senior Account Executive in the company of the first informant namely VIBGYOR Facility Management Private Limited. Applicant resigned from the said company on 15.07.2021. Thereafter, applicant formed his own company in the name and style of CAREBLEND FACILITY MANAGEMENT PRIVATE LIMITED. The maintenance contract qua the common area and other maintenance in respect of Crossings Infrastructure Private Limited was awarded to the company of first informant namely VIBGYOR Facility Management Private Limited. Subsequently, the maintenance contract was awarded in favour of the company of applicant on 19.01.2023, whereas the earlier contract awarded to the company of first informant-opposite party-2 was till January, 2023. It is, thereafter, that present criminal proceedings have been engineered only to wreak vengeance on account of business rivalry. Referring to the judgments of Supreme Court in M/s Eicher Tractor Ltd. Vs. Harihar Singh (2008) 16 SCC 763, Priyanka Srivastava Vs. State of U.P., (2015) 6 SCC 287 and Mohammad Wajid and Another Vs. State of U.P. and Others, 2023 LiveLaw (SC) 624, the learned Senior counsel would thus contend that the present criminal proceedings are, therefore, not only malicious but also an abuse of the process of Court. Consequently, the same are liable to be quashed by this Court.
32. Per contra, the learned A.G.A. representing State-opposite party-1 has vehemently opposed the present application. It was contended by the learned A.G.A. that since applicant is a charge sheeted accused, therefore, no indulgence be granted by this Court in favour of applicant. Applicant has been charge sheeted under Sections 384, 406 and 120-B IPC only because credible material had emerged against him during course of investigation. The innocence of applicant cannot be inferred simply on the basis of technical objections raised by the learned Senior counsel in support of present application under Section 482 Cr.P.C. As prima-facie case has emerged against applicant, remedy lies to applicant to prove his innocence in the resultant trial. He, therefore, concluded by contending that no interference is warranted by this Court in present application under Section 482 Cr.P.C.
33. Mr. Sanjeev Singh, the learned Senior counsel assisted by Mr. Atul Mehra, the learned counsel representing first informant-opposite party-2 adopted the objections raised by the learned A.G.A. in opposition to the present application under Section 482 Cr.P.C.
34. In addition to above, it was also urged by the learned Senior counsel representing first informant-opposite party-2 that since the bar contained in Section 468 Cr.P.C. is not attracted in the present case, therefore, the delay, if any, in lodging the FIR shall not be fatal to the case of first informant-opposite party-2. Since the FIR giving rise to present application under Section 482 Cr.P.C. was lodged within limitation inasmuch as, the period of punishment prescribed for each of the charging Sections mentioned in the FIR/police report submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C. had not expired, either on the date, the application under Section 156(3) Cr.P.C. was filed or on the date, the FIR was registered. Therefore, it cannot be said that there is any delay in lodging the FIR. As such, the impugned criminal proceedings pending against accused-applicant are not liable to be quashed by this Court on the aforesaid ground.
35. In furtherance of above, it was further contended by the learned Senior counsel that the limitation in respect of criminal proceedings has to be calculated as per the mandate of Section 469 Cr.P.C. Since in the present case, the FIR was lodged immediately after gaining knowledge about the theft committed by applicant and other accused came to the knowledge of the company. Therefore, it cannot be said that there is delay in lodging the FIR. Moreover, the same is covered within the ambit and scope of Section 469 Cr.P.C., therefore, it cannot be said that there is delay in lodging the FIR. As such, the criminal proceedings pending against applicant are not liable to be quashed on the ground of delay/laches.
36. Furthermore, the circumstances, in which, the FIR giving rise to present criminal proceedings came to be lodged have been duly explained in the FIR itself. Moreover, the relevant Whatsapp messages of blackmailing, which were sent by the accused, have been supplied datewise to the Investigating Officer in a Pen Drive, which falls in the category of electronic evidence and is also part of the case diary. The same clearly corooborates the FIR.
37. Learned Senior counsel ultimately concluded by contending that since the allegations made in the FIR clearly disclose the commission of a cognizable offence, therefore, the case in hand, is covered under the exceptions provided in State of Haryana Vs. Bhajan Lal, (1992) Supp. 1 SCC 335 (Paragraph 102) as well as the ratio laid down by the Apex Court in paragraph 10.4 of the judgment in Niharika Infrastructure (P) Ltd. Vs. State of Maharashtra, (2021) 19 SCC 401, as such, no illegality can be attached to the consequential proceedings arising out of the said FIR. In short, if the FIR can be sustained, the consequences arising out of the same cannot be said to be illegal.
38. On the edifice of aforesaid submissions, it was, thus, vehemently urged by the learned Senior counsel representing first informant-opposite party-2 that no interference is warranted by this Court in present application under Section 482 Cr.P.C. As such, present application is liable to be dismissed.
39. In view of the rival submissions urged by learned Senior counsel for the parties as noted herein above, this Court finds that following issues arise for determination in present application under Section 482 Cr.P.C.;-
(i). Whether the FIR giving rise to the present application under Section 482 Cr.P.C. is highly delayed and therefore, the consequential proceedigns arising out of such an FIR are liable to be quashed by this Court on the ground of delay/laches?
(ii). Whether the allegations made in the FIR are vague and bald allegations being devoid of material particulars with regard to the date of theft, the date on which, extortion was committed, the date on which, any valuable security was transferred? In the absence of pin pointed, specific and definite allegations, the FIR is just a bundle of facts/hypothesis on the basis of which, no criminal prosecution can be maintained?
(iii). Whether the present criminal proceedings have been engineered as a counterblast to wreak vengeance on account of business rivalry and therefore, the same are not only illegal and malicious but also an abuse of the process of Court?
(iv). Whether as per allegations made in the FIR, the offence under Section 384 IPC is made out against charge sheeted accused including applicant?
(v). Whether in the absence of any detail regarding the exact documents, which were entrusted to the applicant, the offence under Section 406 IPC can be said to be made out against applicant?
(vi). Whether criminal conspiracy can be inferred against the accused as per the statement of the witnesses recorded under Section 161 Cr.P.C. and also nominated as prosecution witnesses in the charge sheet?
40. The first issue is taken first. The said issue is in respect of the delay in lodging the FIR. Perusal of the FIR lodged by first informant-opposite party-2, copy of which is on record as Annexure-12 to the affidavit filed in support of present application, will go to show that no date has been mentioned in the body of FIR regarding the date of commission of the crime in question or the date on which, the informant company acquired knowledge about the alleged crime. Similarly, in the relevant column of FIR regarding day, date and time of occurrence, no particulars has been mentioned. It is thus evident that the date on which, the alleged criminal act was committed nor the date on which, the applicant company at whose behest, the FIR has been lodged, acquired knowledge about the alleged crime, has been disclosed. Admittedly, a resolution dated 15.12.2022 (Annexure-C.A.-4 to the counter affidavit) was passed by the informant company resolving therein that criminal complained be filed in respect of the theft of sensitive data of company. However, in the said resolution neither the date of theft has been mentioned nor the date on which, the informant company acquired knowledge about the alleged theft has been mentioned.
41. In the written submissions submitted by the learned counsel representing first informant-opposite party-2, it has been specifically stated that a resolution dated 01.02.2023 was passed by the informant company to lodge an FIR against applicant and three others. Pursuant to above resolution, an application dated 27.03.2023, in terms of Section 154(4) Cr.P.C., was given to the Commissioner of Police, Ghaziabad for a direction to the Station House Officer of Police Station concerned to register an FIR. However, the application under Section 156(3) Cr.P.C. was filed on 05.04.2023. It is thus evident that even as per the admitted case of the first informant-opposite party-2, there is a delay of 55 days in filing the application under Section 154(4) Cr.P.C. from the date of aforementioned resolution. Apart from above, in case, the delay is calculated from the date of earlier resolution i.e. 15.12.2022, there is a delay of 71 days in filing the application under Section 156(3) Cr.P.C. No explanation has come forward in the counter affidavit filed by first informant-opposite party-2 regarding aforesaid delay/laches in filing the aforementioned application.
42. In support of the submission urged by the learned Senior counsel on behalf of opposite party-2 before this Court that there is no delay in lodging the FIR, it was contended that the limitation for lodging the FIR has to be considered in the light of the provisions contained in Section 468 Cr.P.C. and since the FIR giving rise to present criminal proceedings is not hit by Section 468 Cr.P.C., therefore, there is no delay in lodging the FIR. Moreover, the manner in which, the limitation is to be counted has been provided in Section 469 Cr.P.C. When the FIR giving rise to present criminal proceedings is examined in the light of above, it is explicitly clear that neither the FIR was filed beyond the period of punishment prescribed for each of the charging Sections mentioned in the FIR/charge sheet nor the said FIR can be said to be beyond limitation under any of the stipulations contained in Section 469 Cr.P.C. As such, there is no delay/laches in lodging the FIR.
43. Another argument that was canvassed before this Court by the learned Senior Counsel on behalf of first informant-opposite party-2 was to the effect that the delay, if any, in loding the FIR has been explained in the FIR itself and further the datewise Whatsapp messages sent by the accused have been given to the Investigating Officer in the form of a Pen Drive, which is part of the case diary. As such, there does not exist any deliberate negligence or laches on the part of informant company/first informant in lodging the FIR.
44. Upon evaluation of the aforesaid submissions urged by the respective Senior counsel for the parties, this Court finds that admittedly, the resolution, to lodge an FIR against applicant and others, was passed by the informant company on 01.02.2023, whereas the application under Section 154(4) Cr.P.C. was filed on 27.03.2023 i.e. after 55 days. The application under Section 156(3) Cr.P.C. was filed on 05.04.2023 i.e. after 63 days from the date of resoluation. No explanation with regard to above has come forward from opposite party-2 either in the counter affidavit filed by opposite party-2 or in the written submissions submitted on his behalf. The Apex Court in the case of Shivendra Pratap Singh Thakur (Supra), with reference to the facts of the aforementioned case, observed that since there is no explanation for explaining the huge delay of 39 days in lodging the FIR (as per the facts of aforementioned case), this Court cannot carve out any exception to the observations made by the Apex Court in aforementioned judgment. Paragraph 14 of the said report is relevant for the controversy in hand and is, accordingly, reproduced herein below;-
“14. A bare perusal of the impugned FIR would reveal that the same was lodged by complainant-Barkat Ali on 29th June, 2019 with the allegation that the offences alleged were committed by the appellant and co-accused some time prior to 20th May, 2019. Thus, the complainant was not even sure of the date on which the alleged offences were committed. No reason whatsoever has been given in the
FIR for huge delay of more than 39 days in approaching the police. The Investigating Officer prepared a site plan during the course of investigation which has been made a part of the record. A perusal of the said site plan would reveal that so far as the plot of Purnima Begum, wife of Barkat Ali is concerned, it is fully encumbered by a boundary wall and no damage is shown to this structure. The site plan indicates that there is some damage to the under-construction house of
Sushma Kashyap. In the FIR, the damage suffered by the complainant was quantified at Rs. 6 lakhs whereas the damage suffered by Smt. Sushma Kashyap was quantified as Rs. 4 lakhs owing to the demolition of her under construction house. However, admittedly, Smt. Sushma did not lodge any complaint to the police.”
45. Whether delay in lodging the FIR is by itself a ground so sufficient to quash the same came up for consideration before the Supreme Court in Mohammad Wajid and Another Vs. State of U.P. and Others, 2023 LiveLaw (SC) 624. The Bench upon consideration of aforesaid issue in the light of attending circumstances ultimately concluded as follows in paragraphs 32, 33 and 34 of the report. For ready reference, the same are extracted herein below:-
“32. The alleged incident is said to have occurred sometime in the year 2021. There is no reference to any date or time of the incident in the FIR. The allegations are too vague and general. Had it been the case of prompt registration of the FIR, probably the police might have been able to recover Rs. 2 Lakh from the possession of the accused persons alleged to have been forcibly taken away from the pocket of the first informant. The FIR also talks about a document on which the first informant and his brother were forced to put their signatures. We wonder, whether the investigating agency was in a position to collect or recover any such document from the accused persons containing their signatures in the course of the investigation, more particularly when the State says that the investigation is over and the charge sheet is also ready. In the absence of all this material, how is the State going to prove its case against the accused persons. The FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the trial. The object of insisting upon lodging of the FIR to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of the eye witnesses present at the scene of occurrence.
33. In the aforesaid context, we may clarify that delay in the registration of the FIR, by itself, cannot be a ground for quashing of the FIR. However, delay with other attending circumstances emerging from the record of the case rendering the entire case put up by the prosecution inherently improbable, may at times become a good ground to quash the FIR and consequential proceedings. If the FIR, like the one in the case on hand, is lodged after a period of more than one year without disclosing the date and time of the alleged incident and further without any plausible and convincing explanation for such delay, then how is the accused expected to defend himself in the trial. It is altogether different to say that in a given case, in the course of investigation the investigating agency may be able to ascertain the date and time of the incident, etc. The recovery of few incriminating articles may also at times lend credence to the allegations levelled in the FIR. However, in the absence of all such materials merely on the basis of vague and general allegations levelled in the FIR, the accused cannot be put to trial.
34. The learned Additional Advocate General appearing for the State vehemently
submitted that considering the gross criminal antecedents of the appellants before us, the criminal proceedings may not be quashed. The learned Additional Advocate General appearing for the State in her written submissions has furnished details in regard to the antecedents of the appellants. A bare look at the chart may give an impression that the appellants are history sheeters and hardened criminals. However, when it comes to quashing of the FIR or criminal proceedings, the criminal antecedents of the accused cannot be the sole consideration to decline to quash the criminal proceedings. An accused has a legitimate right to say before the Court that howsoever bad his antecedents may be, still if the FIR fails to disclose commission of any offence or his case falls within one of the parameters as laid down by this Court in the case of Bhajan Lal (supra), then the Court should not decline to quash the criminal case only on the ground that the accused is a
history sheeter. Initiation of prosecution has adverse and harsh consequences for the persons named as accused. In Directorate of Revenue and another v. Mohammed Nisar Holia, (2008) 2 SCC 370, this Court explicitly recognises the right to not to be disturbed without sufficient grounds as one of the underlying mandates of Article 21 of the Constitution. Thus, the requirement and need to balance the law enforcement power and protection of citizens from injustice and harassment must be maintained. It goes without saying that the State owes a duty to ensure that no crime goes unpunished but at the same time it also owes a duty to ensure that none of its subjects are unnecessarily harassed.”
46. There is another aspect of the matter. Delay is a relative term. The same has to be counted from the date, on which, the cause of action for initiating the criminal complaint came into existence i.e. the exact date on which, the alleged criminality was committed. In the entire FIR, which is an ad-verbatim copy of the application under Section 156(3) Cr.P.C., no averment has been made regarding the date of theft, the date of knowledge of the alleged theft, the date on which, extortion was committed or the date on which, any valuable security was transferred. The same clearly goes to show that vague and omnibus allegations have been made in the FIR. As such, the FIR is based upon hypothesis and not on definite facts.
47. An attempt was also made by the learned Senior counsel representing first informant-opposite party-2 that since the datewise Whatsapp message sent by the accused were given in a Pen Drive to the Investigating Officer, which also forms part of the case diary, the delay, if any, in lodging the FIR stands explained. When the aforesaid factor is taken into account, it cannot be said that there has been delay in lodging the FIR.
48. The argument so raised may appear to be attractive at the first flush but upon deeper scrutiny, the same is found to be devoid of substance. No material particulars regarding the Whatsapp messages has been given in the counter affidavit filed by opposite party-2 nor in the written submissions submitted by the learned counsel representing opposite party-2. There is absolutely no pleading on record that the mandatory certificate required in terms of Section 65-B of the Evidence Act regarding aforementioned electronic evidence was also submitted. Therefore, the said material cannot be looked into by this Court at this stage. In view of above, the delay in filing the FIR does not stand sufficiently explained.
49. The second issue that has arisen for consideration before this Court is whether the allegations made in the FIR are vague and bald allegations being devoid of material particulars with regard to the date of theft, the date of knowledge of the alleged theft, the date on which, extortion was committed, what valuable security was transferred, therefore, vague and omnibus allegations have been made in the FIR. In the absence of pin pointed, specific and definite allegations, the FIR is just a bundle of hypothesis on the basis of which, no criminal prosecution can be maintained.
50. From perusal of FIR, this Court finds that the same is a bundle of hypothesis. Allegations made in the FIR are vague and bald allegations. They do not fall in the category of pin pointed, definite and specific allegations. The material particulars regarding the same are conspicuous by their absence. There is no mention regarding the date of theft, the date of knowledge of the alleged theft, the date on which, extortion was committed, the date on which, transfer of valuable security took place, which clearly goes to show that vague and omnibus allegations have been made in the FIR. What will be the fate of such an FIR is no longer res-integra and stands settled by numerous judgments of the Supreme Court as well as this Court.
51. In that regard, reference be made to the judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, wherein the Court has observed as under in paragraphs 18, 19 and 20;-
“18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.
19. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17.
20. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law.
52. In Neelu Chopra and Others Vs. Bharti (2009) 10 SCC 184, Court again considered the issue as to whether criminal prosecution of an accused can be maintained on the basis of vague and unfounded allegations. Observations made by the Court in paragraphs 4 and 5 of the report are relevant for the controversy in hand. Accordingly, the same are reproduced herein below:-
“4. We have seen the complaint very carefully. From a bare reading of the complaint it is apparent that the problem started barely after six months of the marriage. In paragraph 3 of the complaint, it is stated that all the accused came to complainant’s parents house at Gidderbaha and asked her parents to give the complainant more gold and other articles as dowry otherwise they would leave the complainant there and Rajesh would be married second time. In paragraph 4, the complaint is against Rajesh in the sense that the accused Rajesh asked the complainant to hand over the ornaments and clothes to his parents lest they are lost in the way. On reaching to Delhi when the ornament were asked back by the complainant, they were not returned back. When we see the complaint as a whole it is basically against the accused Rajesh. All the allegations are against Rajesh. There is undoubtedly some reference to the present appellants, but what strikes us is that there are no particulars given as to date on which the ornaments were handed over, as to the exact number of ornaments or their description and as to the date when the ornaments were asked back and were refused. Even the weight of the ornaments is not mentioned in the complaint and it is a general and vague complaint that the ornaments were sometime given in the custody of the appellants and they were not returned. What strikes us more is that even in paragraph 10 of the complaint where the complainant says that she asked for her clothes and ornaments which were given to the accused and they refused to give these back, the date is significantly absent. It seems from the order taking cognizance that the learned Magistrate has mentioned about the version of the complainant is supported by Bhagwati and Dharampal to the fact that the ornaments were entrusted to Krishan Saroop and Rajesh while clothes were entrusted to Rakhi and they refused to hand over the same. Even their statements could not be better than the vague complaint. Even about the clothes, the date on which they were handed over to Rakhee who happens to be the daughter of the present appellants and the other details are very significantly absent. It was also the version of the complainant that she was beaten in support of which she has filed a certificate from AIIMS hospital, New Delhi. However, in the complaint, it is not seen as to on which date she was beaten and by whom. It is significant to note that the matter against the Rakhee, the 4th original accused has already been dropped as she was in fact not even the resident of the same house.
5. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.”
53. In yet another case i.e. Shabban Khan and Others Vs. State of U.P. and Another, 2024 SCC OnLine All 4844, a learned Single Judge of this Court, after considering the judgments of Supreme Court in State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335, Neelu Chopra and Others Vs. Bharti (2009) 10 SCC 184, Achin Gupta Vs. State of Haryan and Another, 2024 SCC OnLine SC 759 and Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599 considered the effect of vague and ambiguous allegations made in the FIR. Ultimately, the Court delineated it’s views in paragraph 34 of the report, which reads as under:-
“34. In view of the fact that allegations in the present case are vague in nature and lacks specification in respect of applicant nos. 3, 4 and 5, the criminal proceedings against applicant nos. 3, 4 and 5 are absurd and improbable that no prudent mind can arrive at conclusion for proceeding against applicants in view of the vague allegations.”
54. There is another aspect of the matter. It is now well settled that though FIR is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case, vide (i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268, (ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641 and (iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543. When the FIR giving rise to the present criminal proceedings is examined in the light of above, this Court finds that except for a bundle of hypothesis, no cause of action (a set of facts, which need to be proved in order to succeed) can be deduced from the same. In the absence of material particulars with regard to the date of theft, the date of knowledge of the alleged theft, the date on which, extortion was committed, what valuable security was transferred and on which date, it is evident that vague and omnibus allegations have been made in the FIR. It is in this regard that paragraphs 4, 5 and 6 of the FIR have been reproduced in the preceding part of this judgment.
55. In view of the discussions made above, this Court has on hesitation to conclude that vague and bald allegations have been made in the FIR. They are devoid of material particulars regarding commission of the alleged crime. No pin pointed allegation nor specific/definite allegation has been made therein. As such, the prosecution story as unfolded in the FIR is hypothetical and the criminal law can not set into motion on the basis of hypothesis.
56. The issue as to whether, present criminal proceedings have been engineered as a counterblast to wreak vengeance on account of business rivalry also needs to be noticed. It is admitted to the first informant-opposite party-2 that applicant Indrakant Jha was initially working with VIBGYOR Facility Management Private Limited (first informant/opposite party-2 is an employee of the said company and has lodged the FIR on behalf of the said company) as Senior Account Executive. He resigned from the aforesaid company on 15.07.2021. Accused-applicant, thereafter, formed his own company namely CAREBLEND FACILITY MANAGEMENT PRIVATE LIMITED.
57. It is also an admitted fact that the contract regarding maintenance of common areas and other maintenance was given to VIBGYOR Facility Management Private Limited. The said contract was up to 21.03.2023. However, before expiry of the aforesaid contract, a fresh contract was awarded in favour of the company of applicant regarding above. It is, thereafter, that the resolution dated 01.02.2023 came to be passed by the informant company to lodge a complaint against applicant and others. It is thus apparent that present criminal proceedings have been engineered when the company of applicant posed business competition to the company of first informant. As such, it is evident that the present criminal proceedings have been set in motion on account of business rivalry. Apart from above, the absence of material particulars in the FIR regarding the date of theft, the date of knowledge of the alleged theft, the date on which, extortion was committed, the date on which, any valuable security was transferred, clearly goes to show that vague and omnibus allegations have been made in the FIR, which give weight to the proposition that the present criminal proceedings have been engineered on account of business rivalry or in other words to wreak vengeance. What will be the fate of such criminal prosecution has also been considered by the Apex Court.
58. In M/s Eicher Tractor Ltd. Vs. Harihar Singh (2008) 16 SCC 763, the Court while dealing with the issue as to whether the proceedings impugned in aforementioned case were a counterblast to the criminal proceedings already initiated against first informant, the Bench observed as under in paragraph 14 of the report;-
“The case at hand squarely falls within the parameters indicated in category (7) of Bhajan Lal’s case (supra). The factual scenario as noted above clearly shows that the proceedings were initiated as a counterblast to the proceedings initiated by the appellants. Continuance of such proceedings will be nothing but an abuse of the process of law. Proceedings are accordingly quashed.”
59. In Priyanka Srivastava Vs. State of U.P., (2015) 6 SCC 287, the Court was dealing with a case in which, criminal prosecution was set in motion by a Debtor against officers of the bank, when admittedly, the first informant was facing proceedings under the SARFAESI Act. Following was observed by the Bench in paragraphs 26, 27 and 28 of the report. For ready reference, the same are reproduced herein below:-
“26. At this stage, we may usefully refer to what the Constitution Bench has to say in Lalita Kumari v. Govt. of U.P.[7] in this regard. The larger Bench had posed the following two questions:-
“(i) Whether the immediate non-registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused.”
Answering the questions posed, the larger Bench opined thus:
“49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable [pic]offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning. “Shall”
xxx xxx xxx xxx
72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent. “Information”
xxx xxx xxx xxx
111. The Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has “reason to suspect the commission of an offence”. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.
xxx xxx xxx xxx
115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint.”
After so stating the constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. After laying down so, the larger Bench proceeded to state:-
“120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’ delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.”
We have referred to the aforesaid pronouncement for the purpose that on certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.
27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating “as per the application” to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, he had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of the appellant No.1, who is presently occupying the position of Vice-President, neither the loan was taken, nor the default was made, nor any action under the SARFAESI Act was taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present appellant No.1. We are only stating about the devilish design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156(3) Cr.P.C. is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance of Section 154(3), indicating it has been sent to the Superintendent of police concerned.”
60. In Mohammad Wajid and Another Vs. State of U.P. and Others, 2023 LiveLaw (SC) 624, the Court dealt with the aforesaid issue in a wider perspective and observed as under in paragraphs 28, 29, 30 and 31 of the report. For ready reference, the same are extracted herein below:-
28. In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably could be said to have been disclosed but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.
29. However, as observed earlier, the entire case put up by the first informant on the face of it appears to be concocted and fabricated. At this stage, we may refer to the parameters laid down by this Court for quashing of an FIR in the case of Bhajan Lal (supra). The parameters are:-
“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any,
accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
In our opinion, the present case falls within the parameters Nos. 1, 5 and 7 resply referred to above.
30. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
31. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-
“5. …Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing
of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)
(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.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death…..”
61. In order to find out whether the allegations made in the FIR make out an offence under Section 384 IPC, it is necessary to reproduce Sections 383 and 384 IPC as extortion is defined in Section 383 IPC. The same read as under:-
“Section 383 IPC- Extortion :-
Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits “extortion”.
384. Punishment for extortion.–Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
62. The scope of Section 384 IPC has been considered by the Apex Court in the case of R.S. Nayak Vs. A.R. Antulay and Another, (1986) 2 SCC 716, wherein following has been observed by the Bench in paragraph 60 of the report;-
“60. “Extortion” is thus defined in Section 383 IPC: ……. Before a person can be said to put any person to fear of any injury to that person, it must appear that he has held out some threat to do or omit to do what he is legally bound to do in future. If all that a man does is to promise to do a thing which he is not legally bound to do and says that if money is not paid to him he would not do that thing, such act would not amount to an offence of extortion. We agree with this view which has been indicated in Habibul Razak v. King Emperor, A.I.R. 1924 All 197. There is no evidence at all in this case that the managements of the sugar co- operatives had been put in any fear and the contributions had been paid in response to threats. Merely because the respondent was Chief Minister at the relevant time and the sugar co-operatives had some of their grievances pending consideration before the Government and pressure was brought about to make the donations promising consideration of such grievances, possibly by way of reciprocity, we do not think the appellant is justified in his contention that the ingredients of the offence of extortion have been made out. The evidence led by the prosecution falls short of the requirements of law in regard to the alleged offence of extortion. We see, therefore, no justification in the claim of Mr. Jethmalani that a charge for the offence of extortion should have been framed.
63. Subsequently, in the case of Isaac Isanga Musumba and Others Vs. State of Maharashtra and Others, (2014) 15 SCC 357, the Bench considered the ingredients of extortion and opined as under in paragraphs 3 and 4 of the report. Accordingly, the same are reproduced herein below:-
“3. We have read the FIR which has been annexed to the writ petition as Annexure P -7 and we find therefrom that the complainants have alleged that the accused persons have shown copies of international warrants issued against the complainants by the Ugandan Court and letters written by Uganda Ministry of Justice and Constitutional Affairs and the accused have threatened to extort 20 million dollars (equivalent to Rs 110 crores). In the complaint, there is no mention whatsoever that pursuant to the demands made by the accused, any amount was delivered to the accused by the complainants. If that be so, we fail to see as to how an offence of extortion as defined in Section 383 IPC is made out. Section 383 IPC states that:
“383. Extortion.-Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits ‘extortion’.”
Hence, unless property is delivered to the accused person pursuant to the threat, no offence of extortion is made out and an FIR for the offence under Section 384 could not have been registered by the police.
4. We also find on the reading of the FIR, there is also an allegation that on 18-4- 2013 between 1 p.m. and 5.30 p.m. the accused persons illegally entered into the Head Office of the Company at Fort and demanded 20 million dollars (equivalent to Rs 110 crores) saying that they have international arrest warrants against the complainants and upon failure to pay the said sum the complainants will have to face dire consequences. It is because of this allegation in the FIR, the offence under Section 441 IPC is alleged to have been committed by the accused persons. On reading Section 441 IPC we find that intent to commit an offence or to intimidate, insult or annoy any person in possession of property is a necessary ingredient of the offence of criminal trespass. It is not disputed that there was a business transaction between the accused persons and the complainants. Hence, if the accused persons have visited the premises of the complainants to make a demand towards their dues, we do not think a case of “criminal trespass” as defined in Section 441 IPC is made out against the accused persons.”
64. Similar view has been taken by the Apex Court in Salib alias Shalu alias Salim Vs. State of U.P. and Others, 2023 SCC OnLine SC 947. The Bench, with reference to Section 385 IPC, pointed out the difference between extortion and theft. Having done so, the Bench observed as follows in paragraph 22 of the report;-
“22. So from the aforesaid, it is clear that one of the necessary ingredients of the offence of extortion is that the victim must be induced to deliver to any person any property or valuable security, etc. That is to say, the delivery of the property must be with consent which has been obtained by putting the person in fear of any injury. In contrast to theft, in extortion there is an element of consent, of course, obtained by putting the victim in fear of injury. In extortion, the will of the victim has to be overpowered by putting him or her in fear of injury. Forcibly taking any property will not come under this definition. It has to be shown that the person was induced to part with the property by putting him in fear of injury. The illustrations to the Section given in the IPC make this perfectly clear.”
65. In the FIR giving rise to present proceedings, criminal breach of trust has also been alleged against applicant. Criminal breach of trust has been defined in Section 405 IPC, whereas Section 406 IPC provides for the punishment for criminal breach of trust. In view of above, Sections 405 and 406 IPC are, accordingly, extracted herein below:-
“405. Criminal breach of trust.–
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
Explanation 1.– A person, being an employer of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.– A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Section 406 IPC – Punishment for criminal breach of trust. —-
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
66. In order to attract the provisions of Section 406 IPC, it must be established that there was some entrustment to the accused. In the absence of any entrustment, there can be no offence under Section 406 IPC. In the entire FIR, there is no allegation regarding the same. No detail of the material that was entrusted to the applicant has been mentioned. As such, as per the allegations made in the FIR, it cannot be conclusively concluded that an offence under Section 406 IPC is made out against accused-applicant.
67. Criminal conspiracy has also been alleged against applicant and other accused in the FIR giving rise to present criminal proceedings. It is by now well settled that conspiracy is a closed door affair. Consequently, the same is subject to trial evidence. In view of the very nature of offence, it is hardly possible to have direct evidence regarding the same. It is on account of above that the Apex Court has repeatedly held that conspiracy can be inferred from the circumstances also.
68. In the case in hand, the police report (charge sheet) dated 21.12.2023 has already been submitted against applicant and others by the Investigating Officer in terms of Section 173(2) Cr.P.C. As per the said police report, 9 persons have been nominated as prosecution witnesses i.e. (1) Dharmendra Dhama, (2) Sumit Agarwal, (3) Pawan Kumar, (4) Vivek, (5) Pravesh Kumar, (6) Surendra Singh, (7) Mohit Kumar, (8) Constable (2241) Mohit Kumar and (9) Tahjibul Hasan.
69. The statements of aforesaid witnesses were also recorded under Section 161 Cr.P.C. by the Investigating Officer. The same are on record of the case diary as C.D. Parcha No.-3, C.D. Parcha No.-8 and C.D. Parcha No.-10. The learned A.G.A. has supplied the photo copy of the case diary, which has been taken on record.
70. Upon perusal of the statements of aforementioned witnesses, it is evident that the only common allegation that has emerged in the statement of all the witnesses mentioned above that two accused namely (1) Indrakant Jha and (2) Shivam Gupta in criminal conspiracy with Sanjay Singh and Shivam Gahlot have committed the offence in question. Except for the above, no material fact has been stated. No motive has emerged against other accused for conspiring with Indrakant Jha and Shivam Gupta for committing the crime in question. Admittedly, all the 4 accused do not belong to the same family. Therefore, until and unless, the motive/common object for committing the crime in question is not clearly spelt out, no inference regarding criminal conspiracy can be made.
71. In view of the discussions made above, it is apparent that the submissions urged by the learned Senior counsel for applicant in support of present application are clearly borne out from the record. This Court, therefore, has no hesitation to conclude that the FIR giving rise to the present criminal proceedings is highly delayed for which, no reasonable explanation has come forward. The FIR even if not the encyclopedia of the prosecution case yet discloses the basic prosecution case. However, from perusal of the FIR, it is apparent that except for a bundle of facts, nothing substantial has been stated in the FIR. The allegations made in the FIR are neither pin pointed allegations, nor the same are definite and specific in character. All the allegations made in the FIR are devoid of material particulars inasmuch as the date of theft, the date on which, extortion was committed have not been mentioned. As such, the FIR clearly goes to show that vague and omnibus allegations have been made in the FIR. The FiR is, therefore, a bundle of facts. It is an undisputed fact that applicant was previously an employee of the informant company but he resigned from the same on 15.07.2021. Applicant subsequently formed his own company in the name and style of CAREBLEND FACILITY MANAGEMENT PRIVATE LIMITED. The maintenance contract, which was previously awarded to the informant company and was up till 21.01.2023, was subsequently awarded to the company of applicant i.e. on 19.01.2023. It is on account of above that the present criminal proceedings were engineered on account of business rivalry. The resolution dated 01.02.2023 was passed thereafter by the informant company to file criminal complaint against applicant. Thus the present criminal proceedings have been initiated only to wreak vengeance. Furthermore, as per the allegations made in the body of FIR, no offence under Section 384 IPC is made out against applicant and others, as there is nothing to show transfer of valuable security. In the absence of specific details of goods, which were entrusted to the applicant and other accused, no offence under Section 406 IPC can be said to be made out agaisnt applicant, in the FIR simply bald allegations have been made. The same are devoid of the details of documents entrusted to applicant and other accused nor the date on which, the alleged entrustment was made has been mentioned. While in the FIR, various documents have been mentioned, which are alleged to have been entrusted to the applicant and other accused, however, in the resolution dated 15.12.2022, it has been alleged that sensitive data of the company has been stolen. No details of the alleged sensitive data has come on record. As such, the first informant/prosecution is itself not very clear about the prosecution story, which it set out to prove against accused including applicant. As per the statements of the witnesses examined under Section 161 Cr.P.C., who have also been nominated as prosecution witnesses, no criminal conspiracy can be conclusively inferred against applicant and other accused.
72. As a result, the present application succeeds and is liable to be allowed.
73. It is, accordingly, allowed.
74. The police report/charge sheet dated 21.12.2023 submitted by the Investigating Officer in terms of Section 173(2) Cr.P.C. in Case Crime No. 455 of 2023, under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad, the Cognizance Taking Order/Summoning Order dated 02.02.2024 passed by Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad in consequential Criminal Case No. 186 of 2024 (State Vs. Indrakant Jha and Others), under Sections 384, 406, 120-B IPC, Police Station-Kasim Republik, Ghaziabad as well as the entire proceedings of aforementioned criminal case now pending in the Court of Additional Chief Judicial Magistrate, Court No.-2, Ghaziabad are, hereby, quashed.
75. In the facts and circumstances of the case, parties shall bear their own costs.
Order Date :- 30.09.2024
Vinay