Subhash Chand Sood and Others vs State of Punjab

R.L. Anand, J.—Important point of law involved in the present petition is whether in the proceedings u/s 482, Cr.P.C., an FIR can be quashed on the ground of mere delay in its registration and whether the High Court can go into the probabilities of allegations which were the subject-matter of the FIR registered at the instance of a citizen and the ancillary point for determination would be that if the High Court can go into the question as to the probabilities of the allegations, then to what extent?

A criminal case was registered in Police Station Vigilance Bureau, Ferozepur Range, Ferozepur, u/s 7 read with Section 13 of the Prevention of Corruption Act, which became the subject-matter of FIR No. 13, which was registered on the basis of a ruqa which was sent by Shri Ramandip Singh, Deputy Superintendent of Police, Ferozepur Range, on 15-4-1996. The material contends of the ruqa are as follows :-

...It has been found through reliable sources that Subhash Chand Sud, S.D.O., Harjinder Singh J.E. and Jaskaran Singh, Lineman, Department of Electricity Board, Talwandi Bhai, during their service period, after having received Rs. 12,0007-as bribe from Malkiat Singh son of Avtar Singh Jat, resident of Bholuwala. Tehsil Ferozepur, by misusing their status issued defaulter connections of Chet Singh resident of Patli and Pritam Singh resident of Sodhiwala in the name of Malkiat Singh and changed into P.D. 232 in the name of Malkiat Singh by misusing his position in connivance with the abovesaid accused. In this way, Malkiat Singh was given wrong benefit, Subhash Chand Sood, S.D.O., Harjinder Singh, J.E., and Jaskaran Singh, Lineman, and Malkiat Singh, L.D.C., committed offences under Sections 7 13(1) (a) and (d) read with Section 13(2) of the Prevention of Corruption Act.

Not satisfied with the registration of the FIR, present three petitioners have filed the present petition u/s 482, Cr.P.C., by inter alia pleading that they were respectively posted as Sub-Divisional Officer, Junior Engineer and Lineman in the Punjab State Electricity Board Sub Division of Talwandi Bhai, District Ferozepur. One Malkiat Singh son of Avtar Singh of village Bholuwala was a defaulter for non-payment of electricity bills for the year 1990-91, under the same sub-division. On 19-9-1994 permanent disconnection order No. 03 of Book No. 28643 and permanent disconnection order No. 04 of the same book were given by petitioner No. 1 to petitioner No. 2 for carrying out the actual disconnection of electricity connections No. PL-232 and PL 16 of the complainant Malkiat Singh. The electricity was disconnected on the report of the Flying Squad of the Board. The Flying Squad made a report dated 16-9-1994. The two connections of the complainant were restored in lieu of the defaulted connections of Sarvshri Chet Singh and Pritam Singh, when the complainant had deposited Rs. 52847- and Rs. 9236/-. It is the case of the petitioners that as per the directions of petitioner No. 1 to carry out the actual disconnection of two electricity connections of the complainant, petitioner No. 2 proceeded to village Bholuwala on 21-9-1994 to perform his official duty to carry out the actual disconnections and he physically disconnected the two tubewell connections of the complainant (Shri Malkiat Singh), who threatened petitioner No. 2 and other staff members, who were assisting petitioner No. 2 in execution of the job of disconnection, that he would teach them a lesson. On 28-9-1994 petitioner No. 2'' was entrusted with the job of shifting the service line poles of the complainant''s disconnected connections vide S.C.O. No. 24 Book No. 001645, which fed the tubewell connections of the complainant. Petitioner No. 2 actually proceeded to'' village Bholuwala on 19-10-1994 to carry out the shifting of complainant''s service line. The complainant did not cooperate with petitioner No. 2; rather he created obstructions. Petitioner No. 2 reported the matter to petitioner No. 1, stating that Shri Malkiat Singh was obstructing him from shifting the service line poles; so much so the staff of the Board made a request to the Police for taking necessary action against the complainant. It is further the case of the petitioners that the complainant actually carried out the threats and falsely made an allegation against them. The complainant used to say that he had deposited Rs. 5284/- and Rs. 9236/- and in order to settle the scores against the petitioners, he had made a false allegations that the petitioners had taken a sum of Rs. 12,000/- from him and did not issue the receipt. It has been averred in para No. 8 of the petition that when the petitioners applied for bail before the Special Judge, Ferozepur, they were released on bail and it was held in the order passed by the learned Special Judge that the complainant (Malkiat Singh) had not specified the date on which the alleged illegal gratification of Rs. 12,000/- was given and to whom the money was actually paid. The learned Special Judge did not apparently believe the version of the complainant and this itself becomes-a valid ground for the quashment of the FIR. It is also pleaded by the petitioners that the allegations of the illegal gratification of Rs. 12,000/- arc. not only vague but also false and concocted and it is an imaginary story on the part of Malkiat Singh. 3. With the above main allegations, the petitioners have prayed for the quashment of the FIR, which aspect of the case has been challenged by the State in its written statement, in which it has been pleaded as follows:-

...Actual facts of this case transpire that connection No. PL-16 was allotted to one Chet Singh resident of Paly on 25-3-1974, who remained defaulter since February 1988. Similarly connection No. S W-173 was allotted to one Pritam Singh, resident of Sodhi wala, on 13-1 -1988, which was later on changed to SD-189. Connection No. SW-173 was never cancelled in papers and in connivance with the petitioners. Connection No. SW-173 was transferred to village Bholuwala in year 1994 and allotted No. PL-232. In the year 1994 when Malkiat Singh complainant in this case approached the petitioner for temporary connection, the petitioners obtained Rs. 12,000/- as bribe from him and got deposited the defaulting amount of Rs. 5786/- for PL-232, and Rs. 9236/- for PL-16 from complainant Malkiat Singh and illegally connected and started his two tubewell motors by providing an extra Poll from the tubewell connection of one Mukhtiar Singh. Malkiat Singh complainant deposited the electricity bills of the above said PL-232 and PL-16 since January 1995 for his illegal connections mentioned above. In September 1994 these illegal connections of Malkiat Singh were detected by the Flying Squad BTI, as a result of which, abovesaid connections PL-16 and PL-232 were disconnected in papers on 20-9-1994, whereas, the illegal connections given to the complainant in lieu of PL-16 and PL-232 remained intact on the tubewells of the complainants. Thus the petitioners in connivance with the each other by misusing their powers as public servants provided two illegal connections in lieu at PL-16 and PL-232 to the complainants by taking illegal gratification of Rs. 12,000/- from him by tampering with the record of defaulted connection in the names of other persons.

This petition I am disposing of with the assistance rendered by Shri A. S. Kalra, Advocate, appearing on behalf of the petitioners, and Shri J. S. Brar, Assistant Advocate General, Punjab, appearing on behalf of the State.

While dealing with a petition u/s 482, Cr.P.C., this Court is supposed to see the allegations made in the FIR and formulate an opinion if the allegations remain unrebutted or if prima facie an offence is made out or not. In other words, if nothing is added or subtracted from the allegations, and still the offence is made out, the provisions of Section 482, Cr.P.C., are not to be invoked, because by doing so, the High Court will assume the role of an investigating agency and will itself embark upon an injury or investigation, which is not permitted according to law. The ultimate defences which might be taken up by the accused are not supposed to be seen nor the questions of fact can be determined. In this regard I am relying upon Hari Singh Verma v. State of Haryana 1997 (1) All CLR 567; and R.K. Jain v. Commissioner of Income Tax 1996 (2) RCC 429 All. It is the settled law that the High Court will not interfere ordinarily where the investigation is still going on because ultimately it is for the investigating agency to see whether the evidence prima facie disclosed triable evidence or not. I have already reproduced the material allegations of Shri Malkiat Singh and the defence of the State, which prima facie disclose that all the three petitioners connived with each other and they took a sum of Rs. 12,000/- by way of illegal gratification from Shri Malkiat Singh, who was shown favour by providing electric connections by defaulting the connections which were in the names of Chet Singh and Pritam Singh. Even the accused petitioners admit that Shri Malkiat Singh was provided with the electric connections, and the point for determination, which is left for the investigating agency is whether the petitioners received a bribe of Rs. 12,000/-, as alleged, or the allegations are false to the knowledge of Shri Malkiat Singh. This Court while exercising the power u/s 482, CrPC, is supposed to invoke it sparingly and in exceptional cases and in the light of the guidelines which have been laid down by the Hon''ble Supreme Court in the celebrated judgment reported as State of Haryana and others Vs. Ch. Bhajan Lal and others, . For the sake of any convenience, I would like to requote those guidelines as under ;-

In following categories of cases, the High Court may in exercise of powers under Article 226 or u/s 482 of the Cr.P.C., may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases.

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 u/s 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 u/s 144(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.

Where allegations ''in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.

Faced with this difficulty, learned counsel for the petitioners then submitted that it is unbelievable that the complainant Shri Malkiat Singh still remained silent for a period of two years for the registration of the case; rather it probabilises that Shri Malkiat Singh wanted to settle score with the petitioners as they did not show favour to him and in order to take the revenge against the petitioners, Shri Malkiat Singh has come forward with false allegations.

As is submitted at the very outset, whether the delay per se in the registration of the case is fatal to the case. In this regard I would like to deal with the aspect of delay. Delay in lodging the FIR is a relative term, depending upon the facts of each case. In one case the delay in the lodging of the FIR can be held to be fatal, because it will depend upon various factors under which the lodger of the FIR has lodged the same in the Police Station, and in some cases even a considerable delay on the face of it may not be treated as fatal. I cannot lose sight of the fact that Shri Malkiat Singh was a beneficiary and he might have remained silent for a sufficient time in order to persuade the petitioners to return the amount, and when he failed in his efforts, he might have contacted the investigating agency for the registration of the case. In the present case the FIR has been registered on the basis of the information received by the D.S.P. Vigilance. When these types of offences are committed, these are always supposed to be committed in secrecy. The tampering of record on the part of the petitioners could not come on the surface so easily. This aspect has to be investigated because there are serious allegations against the petitioners. When the investigation is in progress, the High Court will be very slow in interfering with the same unless the case of the petitioners is brought as per the guidelines laid down by the Hon''ble Supreme Court in the case State of Haryana v. Ch. Bhajan Lal (supra). A perusal of the FIR would show that prima facie an offence u/s 7 read with Section 13 of the Prevention of Corruption Act has been made out against the petitioners and these allegations are supposed to be inquired into. Mere delay in the registration of the FIR in the present case cannot be held to be fatal nor the defences of the petitioners can be gone into, which are within the scope of the trial Court itself.

Finally, this Court is of the opinion that the present petition u/s 482, Cr.P.C. is totally devoid of any merit and deserves to be dismissed. I order accordingly. There shall, however, be no order as to costs.