Shrikant Tripathi - (1.) THE applicants Ram Chanda Balani and his son Shyam Balani have filed this application under Section 482, Cr. P.C. for quashing the proceedings of the Criminal Case No. 399 of 2000, State v. Ram Chanda Balani and another under Section 380, I.P.C. pending in the Court of 1st Additional Chief Judicial Magistrate, Mathura alongwith the impugned order dated 6.11.2004 and charge-sheets dated 25.4.2000 and 5.7.2000.
(2.) NEITHER the opposite party No. 1 nor the opposite party No. 2 (the complainant) filed any counter-affidavit. I have heard the learned counsel for the applicants, the learned A.G.A. for the State and also the learned counsel for the opposite party No. 2 and perused the record. It is alleged that the marriage of the applicant No. 2 Shyam Balani, son of the applicant No. 1, was to take place on 5.5.1997. The applicants had gone to the house of the opposite party No. 2 Gurudeo Sharma on 1.4.1997 at about 10.00 a.m. to invite him for the marriage. At that time the opposite party No. 2 was not present in his house but his servant Mohan Singh Yadav (informant) was present, who entertained the applicants in the house of the opposite party No. 2 and went to the market to bring refreshment etc. for them. When the servant Mohan Singh Yadav returned, he found that the applicants were not in the house and had already gone and the attachee kept in an almirah was found in open condition and the cash amount of Rs. 12,000 kept by the opposite party No. 2 was missing from the attachee. It is alleged that the applicants have committed theft of the cash amount of Rs. 12,000 by entering into the house of the opposite party No. 2. Accordingly the servant of the opposite party No. 2 lodged F.I.R. at the concerned police station. The police registered the case for investigation and on completion of investigation submitted a final report by holding that no case was made out against the applicants. The final report was, then, referred to the Senior Prosecuting Officer, Mathura for opinion, who had kept the matter pending with him for about three years and then returned the case to the Investigating Officer for filing charge-sheet against the applicants. Accordingly the Investigating Officer submitted charge-sheet against the applicants in the Court concerned and the final report already submitted was recalled.
(3.) THE learned Additional Chief Judicial Magistrate took cognizance of the offence and issued processes to the applicants. THE applicants, after putting appearance before the Additional Chief Judicial Magistrate, contended that no offence was made out against them and prayed for their discharge. THE learned Magistrate considered the entire material annexed with the charge-sheet and arrived at the conclusion that there was sufficient evidence on record to frame a charge under Section 380, I.P.C. against the applicants. Accordingly the learned Magistrate passed the impugned order dated 6.11.2004 and rejected the applicants' prayer for discharge and decided to frame a charge under Section 380, I.P.C. against them. THE applicants have challenged the order dated 6.11.2004 of the Additional Chief Judicial Magistrate, Mathura as well as charge-sheets dated 25.4.2000 and 5.7.2000 in the instant case. The learned counsel for the applicants submitted that the applicants are respectable persons. The applicant No.1 was the Vice President of the society 'Jhulelal Sindhu Nagar Welfare Association' where as the opposite party No. 2 Gurudeo Sharma was the Chairman. They were on friendly term but due to a dispute concerning the society, the opposite party No. 2 developed an enmity with the applicants and got lodged the F.I.R. against them with the help of his own servant. The learned counsel for the applicants further submitted that the informant Mohan Singh Yadav, who is the sole witness, has died and no useful purpose will be served to continue with the trial after the death of the sole witness Mohan Singh Yadav. It was further submitted that the story of theft as disclosed in the charge-sheet is not only absurd but is also inherently improbable. The proceedings of the case, in view of the principles of law laid down in the case of State of Hariyana and others v. Bhajan Lal and others, 1992 SCC (Crl) 426, are liable to be quashed. In Bhajan Lal's case (supra) the Supreme Court has dealt with the scope of exercise of powers under Section 482, Cr. P.C. and category of cases where High Court may exercise its power relating to the cognizable offence to prevent abuse of the process of the Court or otherwise to secure the ends of justice. The seven categories of illustrations propounded by the Supreme Court are as follows : "(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 F.I.R. 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 F.I.R. 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 F.I.R. 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 F.I.R. 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." ;