Arbind Kumar Singh vs The State Of Bihar

The present application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”), for quashing the order dated 02.08.2016, passed by the learned Sessions Judge, Nawada, in Criminal Revision No. 30 of 2016, whereby, the revision preferred by the petitioners against the order dated 14.03.2016 passed by the learned Judicial Magistrate, 1st Class, Nawada, in Trial No. 995 of 2015, arising out of Nawada Muffasil P.S. Case No. 46 of 2005, registered under Section 47(A) of the Bihar Excise Act, 2005, was dismissed.

The prosecution case, as gathered from the allegations made in the First Information Report and the materials referred to in the application, is that on 18.05.2005, the informant, Sakaldeo Yadav, Inspector of Police received secret information to the effect that a huge quantity of illicit liquor had been stored and was being sold illegally from the house of Ramashish Yadav situated at village Nirmal Bigha, within the jurisdiction of Muffasil Police Station, District Nawada.

Upon receipt of the aforesaid information, the informant entered the same in the station diary and proceeded to the place indicated along with the police personnel. A search was thereafter, conducted at the house of Ramashish Yadav in the presence of independent witnesses.

It is alleged that during the course of the search, 105 gunny bags of liquor were recovered. The prosecution further alleged that the total quantity of illicit country-made liquor seized during the raid was more than 4,000 litres.

The seizure was made in the presence of independent witnesses, namely, Sadanand Kumar and Lalit Prasad, along with the local Mukhiya Bindeshwari Prasad Yadav. A seizure list was prepared in respect of the articles allegedly recovered from the premises.

According to the prosecution, the premises from which the illicit liquor was recovered belonged to Ramashish Yadav. It was further alleged that the seized liquor had been kept in the premises by Arbind Kumar Singh, son of Sri Krishna Singh, resident of village Kallipur, District Nawada.

On the basis of the aforesaid information and the statement recorded by the informant, Sakaldeo Yadav, a police case was instituted as Nawada Muffasil P.S. Case No. 46 of 2005 against the accused persons on 18.05.2005 for the alleged commission of offences under Section 47(A) of the Bihar Excise Act, 2005.

In course of investigation, the investigating officer examined the witnesses and recorded their statements. The police also examined the circumstances surrounding the recovery of the alleged illicit liquor from the premises in question and the connection of the accused persons with the said premises.

The investigation further disclosed, that the house in question belonged to Ramashish Yadav and that the petitioner Arbind Kumar Singh had been implicated in connection with the alleged storage of illicit liquor. The prosecution, on completion of investigation, submitted charge-sheet against the petitioner, whereupon the matter proceeded before the competent Trial Court, Excise, Nawada.

The petitioners being aggrieved by the continuation of the criminal proceedings, approached the learned Judicial Magistrate, 1st Class, Nawada, by filing an application seeking their discharge. The said application was rejected by the order dated 14.03.2016.

Being dissatisfied with the aforesaid order, the petitioners preferred Criminal Revision No. 30 of 2016 before the learned Sessions Judge, Nawada. The learned revisional Court, by the order dated 02.08.2016, dismissed the revision petition and affirmed the order passed by the learned Judicial Magistrate.

Aggrieved by the aforesaid orders and the continuation of the criminal proceedings, the petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Cr.P.C., seeking quashing of the impugned orders and the entire criminal proceeding.

Ms. Simran Mishra, the learned counsel appearing on behalf of the petitioner submitted that the petitioner is innocent and has been falsely implicated in the present case. It was contended that the allegations made in the First Information Report, even if taken at their face value, do not disclose the commission of any offence by the petitioner so as to justify the continuation of the criminal proceedings against him.

She urged that the alleged recovery of illicit liquor was made from the house of Ramashish Yadav, situated at village Nirmal Bigha, and not from the physical, conscious, constructive or exclusive possession of the petitioner and neither was he apprehended at the spot during the alleged raid.

It is highlighted that the seizure list prepared by the police does not bear the signature of the petitioner. There is no material to establish that the petitioner had stored the alleged illicit liquor in the premises or that he had any knowledge of its presence or storage therein.

During investigation, as submitted, the statement of Shanti Devi, wife of Ramashish Yadav was recorded and from that it was found that the premises had been let out to Sunil Kumar Sinha, who was stated to possess a valid licence for dealing in liquor. It has been contended that the prosecution had failed to appreciate this material circumstance and had proceeded against the petitioner without establishing his connection with the alleged storage and recovery of illicit liquor and the offence in question.

Learned counsel draws the attention of this Court to the fact that the prosecution itself had recorded statements indicating that the premises belonged to Ramashish Yadav and that the liquor was allegedly stored by another person. It was urged that the petitioners could not be prosecuted merely on the basis of their alleged association with the premises, in the absence of material showing their conscious involvement in the storage or possession of illicit liquor.

It is contended that the learned Judicial Magistrate while rejecting the discharge application, failed to consider the material available on the record in its proper perspective. The learned Sessions Judge also failed to appreciate the aforesaid circumstances while dismissing the criminal revision.

Thus it is submitted that the continuation of the criminal proceeding, in the facts and circumstances of the case, would amount to an abuse of the process of the Court. It is, accordingly, prayed that the impugned orders dated 14.03.2016 and 02.08.2016, together with the consequential criminal proceedings arising out of Nawada Muffasil P.S. Case No. 46 of 2005, be quashed.

Mr. Pramod Kumar Pandey, the learned Additional Public Prosecutor appearing on behalf of the State opposes the prayer for quashing and submitted that the prosecution was initiated pursuant to the recovery of illicit liquor during a police raid conducted at the premises situated at village Nirmal Bigha.

It is submitted that the police conducted the investigation and submitted a charge-sheet, after recording the statements of the witnesses and considering the materials collected during the investigation. According to the State, the allegations relating to the storage of illicit liquor and the circumstances of its recovery required consideration in the criminal proceeding.

Learned counsel for the State, accordingly, argues that the impugned orders did not suffer from any infirmity warranting interference, in the inherent jurisdiction of this Court and prayed for dismissal of the application.

Having considered the submissions advanced on behalf of the petitioner and the State, the following question arises for consideration: Whether, in the facts and circumstances of the present case, continuation of the criminal proceeding against the petitioner, in the absence of sufficient material, prima facie, connecting him with the alleged offence, would amount to an abuse of the process of the Court warranting interference under Section 482 of the Cr.P.C.?

This Court has perused the averments made in application and the materials and submissions referred to therein. The inherent jurisdiction of this Court under Section 482 of the Cr.P.C. is intended to prevent abuse of the process of any Court and to secure the ends of justice. Although such jurisdiction is to be exercised sparingly and with due circumspection, the existence of a charge-sheet or an order rejecting discharge does not, by itself, preclude the High Court from examining whether the continuation of the criminal proceeding, is legally sustainable.

Chapter XIX of the Code of Criminal Procedure deals with the trial of the warrant cases by the Magistrate wherein Section 238 to 243 prescribes procedure to deal with the cases instituted on a police report. Section 239 stipulates as to the circumstances and condition under which the accused shall be discharged. Section 239 lays down as follows:-

The core ingredients, thus as appears from the aforesaid sections, are:-

Thus, the learned Magistrate while exercising his power and jurisdiction under Section 239 has to base his order primarily and solely on the prosecution materials and is not allowed to conduct enquiry on meticulous evaluation of the materials so submitted before him, by the investigating agency.

If materials placed on record by the investigating agency raises a strong or grave suspicion that the accused committed the offence, charges shall be framed, but on the contrary, if the evidence is so weak that it fails to make out a basic case of raising a strong suspicion, discharge appears to be the proper course of action under Section 239 of the Cr.P.C..

In other words, the obligation to discharge the accused under Section 239 Cr.P.C. arises, when the Magistrate considers the charge against the accused to be groundless. The stipulations under Section 239 Cr.P.C. provide for discharge being made before the recording of evidence and the consideration as to whether the charges has to be framed or not, is required to be made on the basis of the records of the case, including the documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused, after affording an opportunity to the parties to be heard.

In the case at hand, certain facts are very conspicuous and glaring, which could not be ignored at the time of considering the case of the petitioner:-

It has been the settled judicial principle that at the stage of consideration of discharge, the Court is not required to undertake a threadbare analysis of the materials gathered by the prosecution. All that is required to be seen at this stage, is that there are sufficient grounds to proceed against the accused. Meaning thereby the materials should be sufficient to enable the Court to initiate the criminal trial against the accused.

The nature of evaluation to be made by the Court at the stage of framing of charge came up for consideration of the Hon’ble Supreme Court in Onkarnath Mishra & Ors. vs. State (NCT of Delhi) & Anr. reported in (2008) 2 SCC 561 wherein it has been held that at that stage, the Court has to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the materials on record.

In the case of State of Maharashtra & Ors. vs. Som Nath Thapa & Ors., (1996) 4 SCC 659, the three Judge Bench of the Hon’ble Supreme Court has held :-

Section 239 of the Cr.P.C. lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in my considered opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 of the Cr.P.C. means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.

The learned author Shri Sarkar in his Criminal P.C, 5th Edition, on page 427, has opined as:-

In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra reported in AIR 1972 SC 545, this Court has stated about the ambit of Section 251(A)(2) of the Cr.P.C. 1898, which is in pari materia with the wordings used in Section 239 of the Cr.P.C. as follows:-

The provisions of discharge under Section 239 Cr.P.C. fell for consideration of this Court in K. Ramakrishna and others v. State of Bihar and Anr, reported in (2000) 8 SCC 547, and it was held that the questions regarding the sufficiency or reliability of the evidence to proceed further are not required to be considered by the trial court under Section 239 and the High Court under Section 482. It was observed as follows:-

The ambit and scope of exercise of power under Sections 239 and 240 of the Cr.P.C. are, therefore, fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after:-

He considers the charge against the accused to be groundless, i.e, either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage, the only consideration at the stage of Section 239/240 being as to whether the allegation/charge is groundless.

This would not be the stage for weighing the pros and cons of all the implications of the materials, nor for sifting the materials placed by the prosecution- the exercise at this stage is to be confined to considering the police report and the documents to decide whether the allegations against the accused can be said to be "groundless".

The word "ground" according to the Black's Law Dictionary connotes foundation or basis, and in the context of prosecution in a criminal case, it would be held to mean the basis for charging the accused or foundation for the admissibility of evidence. Seen in the context, the word "groundless" would connote no basis or foundation in evidence. The test which may, therefore, be applied for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, would make out no case whatsoever.

The Hon’ble Supreme Court, laid down illustrative categories of cases in which the inherent jurisdiction of the High Court may be exercised to quash criminal proceedings. At this stage, it is germane to refer to the judicial pronouncement of the Hon’ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335 wherein it has been held that:

The principle emerging from the aforesaid decision is that the High Court is required to examine whether the allegations and the materials relied upon by the prosecution disclose the essential ingredients of the alleged offence against the accused. Where no such ingredients are disclosed, the continuation of a criminal proceeding cannot be justified merely because the investigating agency has submitted a charge-sheet or the Court below has declined to discharge the accused.

In the case of Amit Kapoor Vs. Ramesh Chander, reported in (2012) 9 SCC 460, particularly paragraphs 27.1, 27.2 and 27.3, the Hon’ble Supreme Court laid down the guiding principles governing the exercise of jurisdiction under Sections 397 and 482 of the Cr.P.C. The Court emphasized that the power to quash criminal proceedings must be exercised sparingly and with circumspection. It further held that the Court must examine whether the uncontroverted allegations and the documents accompanying the prosecution record, prima facie, establish the offence alleged, without undertaking a meticulous examination of the evidence at the threshold.

Similarly, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, reported in (2021) 19 SCC 401, the Hon’ble Supreme Court, in paragraph 33.3, held that:-

The aforesaid principles make it incumbent upon this Court to examine whether the allegations and materials on record, prima facie, disclose the essential ingredients of the offence alleged against the petitioner, without undertaking a detailed appreciation of the evidence at this stage.

The aforesaid principles, when considered together, make it clear that the inherent jurisdiction of this Court is neither intended to substitute its own assessment of disputed evidence for that of the learned Trial Court nor to permit a prosecution to continue where the essential legal basis for proceeding against the accused, is absent. The decisive consideration is whether the materials relied upon by the prosecution, taken at their face value, disclose a prima facie case against the petitioner.

In the present case, the allegation regarding the recovery of illicit liquor pertains to a search conducted at the house of Ramashish Yadav. The petitioner has specifically contended that the liquor was not recovered from his possession, that he was not apprehended at the place of occurrence and that the premises had been rented to Sunil Kumar Sinha, who allegedly possessed a valid licence. The petitioner has further relied upon the statement of Shanti Devi concerning the tenancy of the premises.

It is true that the absence of a personal recovery from an accused or the absence of his signature on a seizure list cannot, in every case, be treated as conclusive proof of innocence. Criminal liability may arise, from other legally admissible circumstances and materials, depending upon the nature and ingredients of the offence alleged. However, the prosecution must have material, capable of establishing the requisite connection between the accused and the alleged offence. Mere reference to the name of an accused, without material, disclosing his participation or the other essential ingredients of the offence, cannot by itself justify continuation of a criminal proceeding.

The allegations relating to the recovery of liquor from the premises, considered independently, do not automatically establish the petitioner's involvement in the alleged illegal storage or sale. The material relied upon must disclose the basis on which the petitioner is sought to be held criminally liable. The petitioner's contention is not confined merely to dispute the quantity of liquor seized rather it challenges the existence of material connecting him with the premises, the seized articles and the alleged offence.

Having regard to the grounds raised in the present application, the decisive issue is whether the prosecution materials disclose the necessary ingredients of the offence under Section 47(A) of the Bihar Excise Act against the petitioner. The provision must be applied in accordance with its terms as applicable on the date of the alleged occurrence. The prosecution cannot be sustained against an individual merely because illicit liquor was allegedly recovered from premises associated with another person, unless the materials disclose the legal basis for attributing the alleged offence to that individual.

The impugned orders were required to be considered whether the materials collected during investigation disclosed sufficient ground for proceeding against the petitioner. A discharge application cannot be rejected merely by referring to the submission of a charge-sheet without examining whether the allegations and the materials satisfy the essential requirements of the offence alleged. Equally, the Revisional Court was required to consider whether the order rejecting discharge suffered from any legal infirmity warranting interference.

In view of the principles laid down by the Hon’ble Supreme Court in the cases of Onkarnath Mishra (supra), Som Nath Thapa (supra), Mohanlal Soni (supra), Century Spinning and Manufacturing Co. Ltd. (supra), K. Ramakrishna (supra), Bhajan Lal (supra), Amit Kapoor (supra) and Neeharika Infrastructure (supra), the question is not whether the prosecution's case has already been disproved, but whether the criminal proceeding can legally continue against the petitioner on the basis of the materials relied upon. Where the allegations and the prosecution materials fail to disclose the essential ingredients of the alleged offence against the accused, the High Court would be justified in exercising its inherent jurisdiction to prevent abuse of the process of the Court.

In the facts of the present case, and subject to the prosecution record confirming the absence of material establishing the petitioner's involvement, the allegations concerning the recovery of illicit liquor from the premises in question do not, by themselves, furnish sufficient ground to sustain the prosecution against the petitioner. Continuation of the criminal proceeding in the absence of the requisite material connecting him with the alleged offence would serve no legitimate purpose and would amount to an abuse of the process of the Court.

Thus, considering the law well settled by the Hon’ble Supreme Court as discussed hereinabove vis-a-vis the evidence collected by police in course of investigation in the case, at hand, does not leave an iota of doubt that there is no material at all available on record which could by any stretch of imagination link the petitioner to the alleged crime as narrated in the FIR and the charge-sheet.

There is no legal evidence and the facts and evidence detailed are such that no offence is made out, at all, and considering the above conjointly, it can unequivocally be held that the allegations are not only fictitious, but also appears to be groundless and, as such, the instant prosecution against the petitioner for the offences punishable under Section 47(A) of the Excise Act, should not be allowed to continue on account of it being malicious, vexatious and appears to be palpably illegal.

Accordingly, this Court finds that the impugned order dated 14.03.2016 passed by the learned Judicial Magistrate, 1st Class, Nawada, rejecting the petitioner's discharge application, and the order dated 02.08.2016 passed by the learned Sessions Judge, Nawada, affirming the same, cannot be sustained if, upon examination of the complete record, the prosecution materials do not disclose the essential ingredients of the alleged offence against the petitioner. The present application, therefore, is fit to be quashed.

Thus, in my considered opinion, the prosecution has failed to establish the charge against the petitioner and has also miserably failed to connect him as alleged in the FIR as well as in charge-sheet. Thus, I find the instant prosecution to be bad in law and on facts as well.

Ex-consequenti, the order dated 02.08.2016 passed by the learned Sessions Judge, Nawada, in Criminal Revision No. 30 of 2016, as well as the order dated 14.03.2016 passed by the learned Judicial Magistrate, 1st Class, Nawada, in connection with Muffasil P.S. Case No. 46 of 2005, corresponding to Trial No. 995 of 2015, are hereby quashed and set aside, and accordingly the petitioner stands discharged.

Consequently, all criminal proceeding against the petitioner, emanating from Muffasil P.S. Case No. 46 of 2005, registered for the alleged offence under Section 47(A) of the Bihar Excise Act, is hereby quashed.

It is made clear that this order relates to the petitioner herein only and shall not affect any proceeding against any other accused, if pending, unless otherwise ordered by a competent court.

All pending interlocutory application(s), if any, stands disposed of.