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Judgment
Heard the parties.
The present application has been preferred for quashing the order dated 17.05.2017, passed by learned ACJM VIIIth, Aurangabad, in Complaint Case No. 753 of 2016, whereunder whereby learned magistrate has been pleased to take cognizance against the petitioners illegally and directed to issue summons against them.
Crux of the case is that, complainant Dwarika Singh runs a Diesel Mill for years and he had taken electric connection for his house. That the complainant further alleged that on 12.09.2016 while he was at his home four persons entered into Mill and started unscrewing devices etc. That the complainant further alleged that the mill is being run through generator, the person who entered into mill told that they belong to electricity department and they asked rs.10,000/- if he intends to run mill even though generator and on objection they abused and assaulted the complainant.
Considering the statement of complainant on oath and also the enquiry witnesses, learned jurisdictional magistrate took cognizance against above-named petitioners vide its order dated 17.05.2017, for the offences punishable under section 326, 386, 504 of IPC.
Learned counsel appearing on behalf of the petitioner submits that petitioners were falsely implicated through present complaint case which was lodged out of ulterior and oblique motive to settle the personal vengeance. In support of his submission, learned counsel pointed out that the petitioners being officers of the Electric Supply Department, Barun Section, Aurangabad conducted raid in the shop of O.P. No. 2/ complainant and found him committing theft of electricity for which a FIR, was lodged against him. It is submitted that for aforesaid raid, FIR was lodged on 12.09.2016 for which FIR was lodged as Barun P.S. Case No. 141 of 2016 on 15.09.2016. It is submitted that immediately after lodging a case, purely on imaginary grounds for occurrence dated 11.09.2016, the present complaint case was filed on 19.09.2016 after lodging the FIR against petitioners. It is submitted that in view of aforesaid the present cognizance order is fit to be quashed/ set-aside.
Learned counsel for the petitioner relied upon the legal report of Hon’ble Supreme Court in State of Haryana and Ors vs. Bhajan Lal and Ors [1992 Supp (1) SCC 335].
Learned A.P.P. while opposing the quashing petition submitted that after going through the materials available on records and upon getting subjective satisfaction, finding the allegation prima-facie true, the learned jurisdictional magistrate took cognizance against petitioner, but he could not disputed submissions as advanced by learned counsel for the petitioners regarding lodging of FIR and raid by electricity department.
It would be appropriate to reproduce the paragraph no. 102 of the Apex Court decision in the case of Bhajan Lal Case (supra), which reads as under:-
“102.In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 informant 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 nay 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 persons 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 view of aforesaid factual submissions as petitioners are officers of the electricity department, who appears to lodged FIR against O.P. No. 2 on 15.09.2016, whereafter immediately on 19.09.2016, the present complaint case was lodged for the occurrence dated 11.09.2016, suggesting sufficiently that present complaint case was lodged out of ulterior and oblique motive just to settle the personal vengeance, accordingly, by taking guiding note of principal no. 7 of Bhajan Lal Case (supra), impugned order of cognizance dated 17.05.2017, passed by learned ACJM VIIIth, Aurangabad, in Complaint Case No. 753 of 2016 and all consequential proceedings arising therefrom, are hereby quashed qua above-named petitioners.
The present application stands allowed.
Let a copy of this judgment be sent to the learned court below forthwith.