Vinod And Another vs State Of Madhya Pradesh

The applicants have invoked the extra ordinary jurisdiction of this Court under Section 482 of Code of Criminal Procedure Code, 1973 ( For brevity

“ Cr.P.C.) for quashing the FIR dated 10.10.2015 bearing crime No.672/2015 registered at Police Station- Palasia District Indore against the

applicants for offence under Section 25 and 27 of the Arms Act, 1959 and also the Criminal Case No. 46360/2015 pending before Additional Chief

Judicial Magistrate, Indore.

(2) The relevant facts in nutshell for the disposal of the case are that on 10.10.2015, the Station House Officer, Palasiya Shivpal Singh Kushwaha

received an information from an informant that some arms/weapons were going to be sold/traded near Jain Temple, Tilak Nagar, Indore. As soon as

Station House Officr, Shivpal Singh Kushwaha reached Jain Temple, Tilak Nagar, Indore, he was told by D.S.P (ATS) Ajay Kaithwas that the co-

accused -Abhinav Shukla had brought some illegal weapons from Mandsour which were to be sold to applicants Vinod Namdev and Shailedra, who

were traveling Mandsour to indore in white Maruti Ciaz car bearing registration No. MP-14-CC-104 and the car would halt near Jain Temple, Tilak

Nagar, Indore. On this information Station House Officer, Shivpal Singh Kushwaha reached the aforesaid place. When the car stopped at Jain

Temple, Tilak Nagar, Indore and the co-accused Abhinav Shukla supposedly sat in the car, he was nabbed by the police force from ATS and police

Station, Palasiya. A search operation was done on the occupants of the car. During search a country made pistol with two cartridge were seized from

the co-accusedâ€" Abhinav Shukla and whereas 8 live cartridges were seized from applicant No.1-Vinod and 6 live Cartridges were seized from the

applicant No.2 which they were possessed without having any license. The entire operation was witnessed by Omprakash and Manoj Gausar. The

accused persons were apprehended and case under Section 25 and 27 of the Arms Act bearing crime 672/2015 was registered against them at police

Station, Palasiya District Indore. After completion of the investigation, charge-sheet has been filed before the competent court, which is pending as

criminal case No 46360/2015 before the court of Additional Chief Judicial Magistrate, Indore for the offence under Section 25 and 27 of Arms Act,

1959.

(3) Learned counsel for the applicant submitted that being aggrieved by the said action, the applicants have preferred an application under Section 482

of Cr.P.C. bearing M.Cr.C. No 9490/2016 before this Court which was disposed of vide order dated 24.10.2016 with a direction to the Trial Court to

call entries in the daily diary of the relevant dates of the concerning police Station and copy may be supplied to the counsel for the applicants and after

hearing and considering the entries in the daily diary, a speaking order may be passed before framing of charges. Despite of issuance of aforesaid

direction, the learned trial court has passed cryptic order and has not considered the impact of the entries in daily diary and passed the impugned order

by which the charges were framed against the applicants for the offence under Section 25 (1) (B) (A) of Arms Act.

(4) Learned counsel for the applicants further submitted that from the first information report, it is evident that a search and seizure were made

between 04:30 to 5:30 PM at Tilak Nagar, Indore by police force comprising of T.I. Shivpal Singh Kushwaha, S.I. Dilip Singh Gour S.I. Preeti Katare,

ASI Rekha Yadav and Constable Pradeep. However, as per Rojnamacha entries No.50 on 10.10.2015 at 15:58 PM depicts that inspector Shivpal

Singh Kushwaha, Sub Inspector- Dilip Singh Gour, Sub Inspector Preeti Katare, ASI Balaram Sisodiya, Constable Harinarayan and Pradeep had

departed for mock drill at 15 battalion SAF Indore and as per entry No. 60 they returned after mock drill at 06:15 PM. Thus, it is clearly indicates that

the prosecution story is contrived and fabricated because aforesaid police forces allegedly done search and seizure between 4:30 PM to 06:30 PM on

10.10.2015 at Tilak Nagar Indore, which is the time where police forces were participating in mock drill at 15 Battalion, SAF, Indore and returned

06:15 PM.

(5) Learned counsel for the applicants also submitted that Seven mobiles phone were recovered and seizure of the same was made at 09:30 PM. The

IMEI number of the mobiles phone were also on record. The scrutiny of the EMEI numbers and SIM card reveals that the mobiles are continuously

reflecting tower No. 5000415717 which is near 175, Tilak Nagar, Indore (Digambar Jain Mandir area). Thereafter from 02:00 PM to 07:00 PM (i.e.

continuously for more than 4 hrs) the location of the said mobile shows that the mobile was at Shri Roshan Sethi 28/2 old palasia, Indore where the

office of ATS is situated. Which also shows that the seizure are fabricated, contrived and concocted. However, the trial court ignored the aforesaid

circumstances which shows the innocence of the applicants. Hence, he prayed for quashing of the FIR dated 10.10.2015 register bearing crime No

672/2015 at police Station, Palasia and also charge sheet and all consequential proceedings.

(6) On the other hand learned public prosecutor has supported the prosecution on the ground that the prima-facie allegation leveled against the

applicants, are made out and the points raised by the applicants regarding his innocency cannot be considered at the initial stage, hence, this application

deserves to be dismissed.

(7) I have considered the rival contentions raised on behalf of the applicants and perused the documents placed on record alongwith the present

application.

(8) As per prosecution story on 10.10.2015 at about 16:30 PM during patrolling at Tilaknagar, Sub Inspector Dilip Singh Gour received an information

from an informant that co-accused Abhinav Shukla brought some illegal weapons from Mandsour which will be traded to the co-accused Vinod

Namdev and Shailendra, who were traveling from Mandsour by Maruti Ciaz car bearing registration No MP-14-CC-104. On this information police

forces reached near Jain Temple, Tilak Nagar, Indore. As soon as the car stopped at Jain Temple, Tilak Nagar, Indore and the co-accused Abhinav

Shukla sat in the car, he was nabbed by the police force and a search was done on the occupants of the car and during search a country made pistol

and two cartridges were found in the possession of the co-accused, and whereas 8 live cartridges were seized from applicant No.1- Vinod and 6 live

Cartridges and Maruti Ciaz Car bearing Registration No. MP-14-CC-1014 were seized from the applicant No.2 and the case was registered against

the applicants and other co-accused person for the offence under Section 25 and 27 of the Arms Act at crime No 672/2015 at police Station- Palasiya,

District Indore.

(9) From the first information report and seizure memo, it is evident that police force of police station, Palasiya comprising Station House Officer

Shivpal Singh Kushwaha, S.I. Dilip Singh Gaur, S.I. Preeti Katare, ASI Rekha Yadav and Constable Pradeep had made search and arrested the

applicants and co-accused person between 16:30 PM to 18:05 PM at Jain Temple, Tilak Nagar. However, from the Rojnamacha entry No. 50 and 60

dated 10.10.2015 it appears that about 15:58 PM, the Station House Officer Shivpal Singh Kushwaha, S.I. Dilip Singh Gour, S.I. Preeti Katare, ASI

Balram Sishodiya, Constable Pradeep and Harinarayan had departed for mock drill at 15 Batallion, SAF Indore and they returned after mock drill at

18:15 PM. If these police officials were departed for mock drill at 15:58 PM and they returned back at 18:15 PM, then how they done search and

seizure  between 16:30 PM to 18:30 PM at Jain Temple, Tilak Nagar therefore, it casts doubt that the aforesaid recovery has been made from the

applicants.

(10) In the case of Rajiv Thapar vs. Madanlal Kapoor 2013(3) SCC 330, the Hon'ble Apex Court has held in the following manner regarding

exercising the powers under Section 482 of 'The Code' as under:

“29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the

initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of

charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well.

The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences,

inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/ complainant to lead evidence. Such a

determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the

High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based

on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges

levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the

accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the

prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been

refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should

be such, as would persuade a reasonable person to dismiss and condemn the  actual basis of the accusations as false. In such a situation, the judicial

conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that

would prevent abuse of process of the court, and secure the ends of justice.â€​

(11) Having carefully examined the law laid down by the Apex Court in the case of Rajiv Thapar (Supra), and on consideration of the material brought

on record by the applicants, it is a fit case in which the inherent power of this Court under Section 482 of Cr.P.C. may be exercised.

(12) On the basis of the aforesaid discussion, it would be apparent by considering the entire facts and circumstances of the case, no offence is made

out against the applicant, and it is fit case in which the inherent power of this court under Section 482 of the Cr.P.C.may be exercised.

(13) Consequently, application filed by the applicant under Section 482 of Cr.P.C. is hereby allowed and the FIR bearing crime No 672/2015

registered at police Station, Palasiya, Indore against the applicants- Vinod and Shailendra for offence under Section 25 and 27 of the Arms Act,1959

and all consequential proceedings flowing out of the said FIR also stand quashed.

Certified copy as per rules.