CIVIL APPEAL None on 2 May 1999

[1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

CRM M-19487 of 2012 (O&M)

Date of Decision: January 8, 2013

Baljinder Singh

…..Petitioner

Vs.

State of Punjab

…..Respondent

CORAM:HON’BLE MR. JUSTICE M.M.S. BEDI.

-.-

Present:-Mr. K.S. Dadwal, Advocate for the petitioner.

Mr. Ankur Jain, AAG, Punjab,

-.-

M.M.S. BEDI, J.

The present case is a glaring example of misuse of officialauthority by police to harass and unnecessarily trapping a Non ResidentIndian in a criminal case by abusing the process of law. The petitioner hasfiled this petition invoking the inherent jurisdiction of this Court underSection 482 Cr.P.C. for seeking quashing of FIR No. 59 dated May 2, 1999under Sections 489 A, 489B, 489 C IPC registered at Police Station, Payal, District Police Khanna and the subsequent proceedings besides challengingthe order dated December 18, 1999 declaring the petitioner a proclaimedoffender in contravention to provisions of Section 82 Cr.P.C. The FIR wasregistered in the present case on the basis of secret information. Theallegations in the FIR registered at the instance of Balbir Singh, SI are thathe, alongwith police party and a private witness Shamsher Singh was on hisway towards Rajwant Hospital, Doraha with DSP Payal Balraj Singh Sidhuin search of the vehicles when during search of a vehicle, a secretinformation was received from a special informer that near the road ofvillage Kaddon near Kulbir Palace, two young persons out of whom onewas Sikh person Pritpal Singh son of Balbir Singh, Jat resident of MonaKalan and other Hindu gentleman whose name and address was BaljinderSingh son of Sh. Pargat Singh, Caste Jat, resident of Mona Kalan, PoliceStation Mehtiana, District Hoshiarpur, had kept with them a huge quantityi.e. 10 Canadian dollars in de-nomination of 50 dollars each in Contessa Carbearing registration No. DL-1CF-2305 and that they were indulging in thebusiness of counterfeit foreign as well as Indian currency and that they werestanding near Kulbir Palace. In case, a raid was conducted they could beapprehended with counterfeit currency. On receipt of information, thepolice party and Shamsher Singh who was an independent witness reachedat the disclosed place where a Sikh person was standing on the side ofContessa Car. On inquiry, he disclosed his name as Pritpal Singh son ofBalvir Singh, Jat, R/o Village Mona Kalan, PS Mehtiana, District Hoshiarpur and when the SI was interrogating him the other person whowas sitting on the Driver seat of Contessa Car bearing registration No.DL-1CF-2305 swiftly started the car and sped away. The person who wasnabbed i.e. Pritpal Singh, disclosed the name and other person as BaljinderSingh, the petitioner. Pritpal Singh was searched. 10 Canadian dollars inthe denomination of 50 dollars each with same numbers FHN9367918printed on them were recovered. The recovered currency Canadian dollarswere taken in custody by recovery memo. The said accused did not haveany permission, therefore forming an opinion that counterfeit foreignCanadian Currency had been possessed for getting the same converted intoIndian Currency. Offence under Sections 489 A, 489B and 489C IPC hadbeen committed. An intimation was sent through Gurdial Singh, ConstableNo. 305 to Police Station against Pritpal Singh and Baljinder Singh. On thebasis of said information, the FIR was registered against Pritpal Singh andthe petitioner. It is not out of place to observe here that Pritpal Singh facedtrial and was convicted under Section 489 C IPC vide judgment datedDecember 11, 2009 for having been found in possession of forged andcounterfeited Canadian Dollars. The petitioner was declared a proclaimedoffender as such he was not tried.

Petitioner through the instant petition under Section 482Cr.P.C. has claimed that he had been involved in the above said FIR falselyand that even if the allegations in the FIR are presumed to be true, nooffence is made out against the petitioner. It was claimed by the petitioner

that he has been involved in the case on account of personal enmity, takingadvantage of the fact that he was in India on the alleged day of recovery.Petitioner claimed that he is a permanent resident of Canada and had goneback to Canada in the last week of May 1999. He is not aware of anyproclamation issued against him. It had been urged that the order datedDecember 18, 1999 annexure P-2 declaring petitioner as a proclaimedoffender shows that during the course of Sessions trial against PritpalSingh,- said order was passed mentioning that the petitioner was abroad. Itwas urged by counsel for the petitioner that the petitioner cannot bedeclared a proclaimed offender under the provisions of Section 82 (4) ofCr.P.C. as the offence under Section 489 A, 489 B and 489 C IPC is notmentioned in sub-sections of Section 84 (2) Cr.P.C. which was added videnotification dated June 21, 2006 by Act No.25 of 2005.

I do not find any force in the contention of learned counsel forthe petitioner that a person accused of offence under Section 489, A, B andC IPC cannot be declared a proclaimed offender in view of judgmentrendered by this Court in Diksha Puri Vs. State of Haryana and others,CRM M-359 of 2012 wherein the scope of Section 82 (4) Cr.P.C. in contextto provisions of Section 174 A IPC has been considered holding thatharmonious constructions of provisions of Section 82 (4) Cr.P.C. with otherprovisions of Cr.P.C. and Section 174 A IPC does not provide immunity toproclaimed person accused of offence mentioned in Section 82 (4)Cr.P.C.from being declared a proclaimed offender. In view of said circumstances the petitioner was directed to appear before CJM, Ludhianaon September 12, 2012 providing him interim protection that in case of hisdoing so, he shall be released on interim bail to the satisfaction of saidCourt. The petitioner has complied with the directions of this Court and hasreturned from Canada to join the stream of process of law. On October 9,2012, State counsel was required to inform the Court whether theprosecution agency intended to present a supplementary challan against thepetitioner in the case of recovery of 10 Canadian dollars from anotherperson Pritpal Singh. A direction was also given to SSP, Khanna, whetherin the circumstances of the present case presentation of supplementarychallan against the petitioner was warranted. On November 27, 2012, areport of the DSP was received to the effect that the prosecution agencyintended to prosecute the petitioner by presenting supplementary challanagainst him. It is pertinent to observe here that the petitioner havingsurrendered before the CJM, Ludhiana in September 2012 has not returnedback and has been appearing before this Court as well as before the AreaMagistrate.

Learned counsel for the petitioner has submitted that thepetitioner being an NRI, having returned from Canada and surrendered inthe Court pursuant to the interim orders passed by this Court is beingunnecessarily harassed for extraneous considerations despite the fact that nooffence is made out against the petitioner. It was vehemently urged that thepetitioner was neither found in actual physical possession of the alleged counterfeit 10 Canadian Dollars of denomination of 50 dollars each northere is any proof collected by the prosecution agency that the CanadianDollars were counterfeited currency notes.

Learned State counsel opposed the petition for quashing of FIRcontending that the petitioner requires to be arrested and inquiry is to beconducted regarding the mode and manner in which the Canadian Dollarsrecovered from Pritpal Singh, his co-accused had been prepared and forgedin the year 1999.

After hearing counsel for the parties, in order to satisfy thejudicious conscious of this Court, a query was made regarding the status ofthe trial of Pritpal Singh. It was informed that Pritpal Singh, after havingbeen convicted for offence under Section 489 C IPC had field a criminalappeal before this Court which is still pending as CRA No. S-2997-SB of2009. In order to find out whether counterfeit currency recovered from co-accused Pritpal Singh, was as a matter of fact, actually forged orcounterfeited, record of the trial Court in criminal appeal of Pritpal Singhwas summoned. Without expression of any opinion on merits of the saidappeal, it is interesting to note that recovery memo Ex.PA had beenproduced regarding recovery of the fake dollars. From the judgment, itappears that the fake dollars had been exhibited as Documents Ex.P.1 toEx.P.10. In order to have a first hand knowledge about the counterfeitedCanadian dollars, the original lower Court record was perused butsurprisingly Exs. P.1 to P.10 were not found on the record of the lower Court. Even telephonic message was sent to the trial Court and a directionwas given to the concerned criminal branch to check up the record to ensurethat lower Court record contained all the exhibits. But Exs.P.1 to P.10 werenot found in the lower Court record.

In order to satisfy my judicious conscious, the record of thepolice including police Register No.19 of Police Station concerned wascalled for. Ultimately from the police Malkhana 10 Red coloured notespurported to be Canadian dollars recovered in FIR No. 59 of 1999 wereproduced. All the ten red coloured notes appeared to be coloured Xeroxedcopies of one note with number FMH 9367918. It does not stand explainedby any one as to how the case property in a criminal decided case, withoutany exhibit or mark on it, went back in police malkhana.

Be that as it may, the sole question which is required to bedetermined is whether the prosecution agency, during the course ofinvestigation, has been able to establish that dollars which were recoveredfrom Pritpal Singh, were actually counterfeited currency notes. A statementof Gurvinderpal Singh, Senior Manager, Punjab National Bank CBOTF,Faridabad who appeared as PW 4 in the case State Vs. Pritpal Singh wascarefully perused. The said witness had allegedly given a report thatCanadian dollars were counterfeited dollars. The said witness refused toown any report alleged to have been taken by ASI Jaswant Singh from him.It is also important to note that no report had been placed by theInvestigating officer on the case file. PW4 Gurvinderpal Singh was declared a hostile witness and was cross-examined. He refused toacknowledge the fact that statement mark A shown to him as ManagerForeign Exchange contained his signatures or that he had produced the saidreport before ASI Jaswant Singh. The statement of Gurvinderpal Singh,Senior Manager of Punjab National Bank recorded on December 1, 2009,in the Court is reproduced as under:--

“On 11.4.2000 I was posted as Manager, PNB, ForeignExchange, International Banking Branch, Ludhiana. I donot remember if ASI Jaswant Singh produced before me10 Canadian Dollars bearing No. FMH 9367918 in thedenomination of 50 dollar. I also do not remember if anyreport was given by me in respect of said CanadianDollars. No record is available in Punjab National Bank,Ludhiana in this respect. Such type of miscellaneousrecord is maintained only for the period of 8 years andafter expiry of this stipulated period such record isdestroyed. As such the office copy of said test reportgiven by me in respect of the aforesaid dollars, if anycannot be produced in the court at this time by me. Ialso do not remember if ASI Jaswant Singh had recordedmy statement in this case.

At this stage Ld. Addl. PP for State requested thatthe prosecution may be given time to bring on record the test report taken by ASI Jaswant Singh on 11.4.2000from this witness.

Heard. Since neither the witness is owning anyreport alleged to have been taken by ASI Jaswant Singhfrom him nor such report has been placed by the IO onthe case file of this case and further a fact that no suchrecord is available in the bank. The request is notrequired to be allowed and as such its stands declined.

Ld. Addl. PP for State further, requested that sincethe witness has resiled from his statement recorded u/s161 Cr.P.C. and suppressing the real facts of case as suchhe be declared hostile to the prosecution and prosecutionbe permitted to put such question as can only be put inthe cross-examination. Request allowed.

Xxxx by Addl. PP for State.

I do not remember that statement Mark A wassuffered by me in this case to ASI Jaswant Singh on11.4.2000. It is wrong to suggest that I wrongly statedthis fact that I do not remember that statement Mark Awas suffered by me. I do not remember that I stated inmy statement Mark A that on 11.4.2000 ASI JaswantSingh produced before me 10 Canadian Dollars N. FHM-9367918 recovered in this case or that I opined that the papers of these dollars were different and the same werefound counterfeit. Attention of witness is drawn towardsportion A to A1 of Statement Mark A where it is sorecorded. I also do not remember that I stated instatement Mark A that at that time I was working asManager Foreign Exchange for the last six years or that Iwas having an enough experience in dealing of foreigncurrency or that I had given a separate written report inthis regard and the report was in my hand and bears mysignatures or that report was produced by me before ASIJaswant Singh. Attention of witness is drawn towardsportion B to B1 of statement Mark A where it is sorecorded. It is wrong to suggest that I intentionally anddeliberated misstated the facts of this case.”

A perusal of the abovesaid statement indicates that theprosecution agency has miserably failed to procure any evidence regardingcounterfeited currency having been recovered from Pritpal Singh. There isabsolutely no evidence available on the record of lower Court in case ofPritpal Singh that he had any connivance with the petitioner or that it wasthe petitioner who indulged in possession, user or tampering of the foreigncurrency. In order to determine whether the FIR against the petitioner andthe criminal proceedings against him warrant quashing, has to bedetermined by a reference to the parameters laid down by the Apex Court in

State of Haryana Vs. Bhajan Lal, AIR 1994 SC 604, wherein it has beenlaid down that in following categories of cases, High Court may in exerciseof powers under Article 226 or under Section 482 Cr.P.C. may interfere inproceedings relating to cognizable offences to prevent abuse of the processof any Court or otherwise to secure the ends of justice. However, powershould be exercised sparingly and that too in the rarest of rare cases:- “1)Where the allegations made in the FirstInformation Report or the complaint, even if they aretaken at their face value and accepted in their entirety donot prima facie constitute any offence or make out a caseagainst the accused.Information Report or the complaint, even if they aretaken at their face value and accepted in their entirety donot prima facie constitute any offence or make out a caseagainst the accused.

2) Where the allegations in the First InformationReport and other materials, if any, accompanying theF.I.R. do not disclose a cognizable offence, justifying aninvestigation by police officers under S.156(1) of theCode except under an order of a Magistrate within thepurview of S.155(2) of the Code.Report and other materials, if any, accompanying theF.I.R. do not disclose a cognizable offence, justifying aninvestigation by police officers under S.156(1) of theCode except under an order of a Magistrate within thepurview of S.155(2) of the Code.

3) Where the uncontroverted allegations made in theFIR or complaint and the evidence collected in supportof the same do not disclose the commission of anyoffence and make out a case against the accused.FIR or complaint and the evidence collected in supportof the same do not disclose the commission of anyoffence and make out a case against the accused.

4) Where, the allegations in the F.I.R. do notconstitute a cognizable offence but constitute only a non-constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by apolice officer without an order of a Magistrate ascontemplated under S.155(2) of the Code.

5) Where the allegations made in the FIR orcomplaint are so absurd and inherently improbable onthe basis of which no prudent person can ever reach ajust conclusion that there is sufficient ground forproceeding against the accused.

6) Where there is an express legal bar engrafted inany of the provisions of the Code or the concerned Act(under which a criminal proceeding is instituted) to theinstitution and continuance of the proceedings and/orwhere there is a specific provision in the Code or theconcerned Act, providing efficacious redress for thegrievance of the aggrieved party.

7) Where a criminal proceeding is manifestlyattended with mala fide and/or where the proceeding ismaliciously instituted with an ulterior motive forwreaking vengeance on the accused and with a view tospite him due to private and personal grudge.”

The Apex Court in Central Bureau of Investigation Vs. RaviShanker Srivastava, IAS and another, 2006 (7) SCC 188, had observed asfollows:-

“While exercising powers under the Section, theCourt does not function as a court of appeal or revision.Inherent jurisdiction under the section though wide hasto be exercised sparingly, carefully and with caution andonly when such exercise is justified by the testsspecifically laid down in the section itself. It is to beexercised ex debito justitiae to do real and substantialjustice for the administration of which alone the courtsexist.

In exercise of the powers the Court would bejustified to quash any proceeding if it finds thatinitiation/ continuance of it amounts to abuse of theprocess of court or quashing of these proceedings wouldotherwise serve the ends of justice. When no offence isdisclosed by the complaint, the Court may examine thequestion of fact. When a compliant is sought to bequashed, it is permissible to look into the material toassess what the complainant has alleged and whether anyoffence is made out even if the allegations are acceptedin toto. It is important to bear in mind the distinctionbetween a case where there is no legal evidence or wherethere is evidence which is clearly inconsistent with theaccusations made, and a case where there is legal evidence which, on appreciation, may or may not supportthe accusations. When exercising jurisdiction underSection 482 of the Code, the High Court would notordinarily embark upon an enquiry whether the evidencein question is reliable or not or whether on a reasonableappreciation of it accusation would not be sustained.That is the function of the trial Judge.”

Subsequently in Preeti Gupta and another Vs. State ofJharkhand and another, JT 2010 (8) SC 410, the Apex Court had againobserved that the powers possessed by High Court under Section 482Cr.P.C. are very wide and the very plenitude of the power requires greatcaution in its exercise. The court must be careful to see that its decision inexercise of this power is based on sound principles. The inherent powershould not be exercised to stifle a legitimate prosecution but court's failingto use the power for advancement of justice can also lead to grave injustice.The High Court should normally refrain from giving a prima facie decisionin a case where all the facts are incomplete and hazy. It was finally held inthe said case that no hard and fast rule can be laid down in regard to cases inwhich the High Court will exercise its extraordinary jurisdiction of quashingthe proceedings at any stage.

In view of various authorities under Section 482 Cr.P.C., I amof the considered opinion that the extraordinary power under Section 482Cr.P.C. can be exercised in following circumstances:-

i)to prevent the abuse of process of Court;

ii)to otherwise secure the ends of justice; iii)to give effect to an order under the criminalprocedure code;procedure code; Applying the parameters of Bhajan Lal’s case (supra) and theother cautions laid down by Apex Court, this Court is of the opinion that theFIR and the criminal proceedings against the petitioner are apparently anabuse of the process of the Court and in order to secure the ends of justice,the criminal proceedings deserves to be quashed, for the followinggrounds:-

i)The allegations in the FIR even if taken at its facevalue and accepted in entirety, do not prima facieconstitute any offence or make out a case againstthe petitioner;value and accepted in entirety, do not prima facieconstitute any offence or make out a case againstthe petitioner;

ii)The material collected during investigation andpresented before the trial Court qua the co-accusedof the petitioner does not disclose any cognizableoffence having been committed by the petitionerjustifying an investigation or prosecution of thepetitioner; presented before the trial Court qua the co-accusedof the petitioner does not disclose any cognizableoffence having been committed by the petitionerjustifying an investigation or prosecution of thepetitioner;

iii)Uncontroverted allegations and the materialcollected during investigation does not disclosethe commission of any offence by the petitioner.collected during investigation does not disclosethe commission of any offence by the petitioner.

The allegations in the FIR appear to be absurd andinherently improbable and insufficient forproceeding against the petitioner, criminalproceedings are apparently attended with malafideagainst the petitioner who is an NRI and has cometo India all the way from Canada to surrenderbefore the authorities of law.

In order to elaborate the abovesaid conclusions it will berelevant to refer to the allegations against the petitioner in the FIR;

i)As per the allegations in the FIR, the petitionerwas not found in possession 10 Canadian dollarsof denomination of 50 dollars each;was not found in possession 10 Canadian dollarsof denomination of 50 dollars each; ii)The possession of alleged counterfeited currencycannot be presumed to be in petitioner’spossession within the meaning of IPC, Section 27of IPC reads as follows:-cannot be presumed to be in petitioner’spossession within the meaning of IPC, Section 27of IPC reads as follows:- “When property is in the possession of aperson's wife, clerk or servant, on account of thatperson, it is in that person's possession within themeaning of this Code.

Explanation: --A person employed temporarily oron a particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaningof this section.

It is not the case of the prosecution agency that Pritpal Singh,co-accused of the petitioner was employed by the petitioner and that thepossession of any counterfeit currency with Pritpal Singh would be deemedto be the possession of petitioner.

There is no evidence gathered from the year 1999 till dateregarding the 10 dollars recovered from Pritpal Singh of denomination of 50each to be counterfeited. Section 489 A, 489 B and 489 C IPC isreproduced for ready reference:-- “Section 489A. Counterfeiting currency-notes orbank-notes:--Whoever counterfeits, or knowinglyperforms any part of the process of counterfeiting, anycurrency-note or bank-note, shall be punished with[imprisonment for life], or with imprisonment of eitherdescription for a term which may extend to ten years, andshall also be liable to fine.

Explanation-For the purposes of this section andof sections 489B, [489C, 489D and 489E], theexpression "bank-note" means a promissory note orengagement for the payment of money to bearer ondemand issued by any person carrying on the business ofbanking in any part of the world, or issued by or under the authority of any State or Sovereign Power, andintended to be used as equivalent to, or as a substitute formoney.

Section 489 B:-counterfeit currency-notes or bank-notes:- Using as genuine, forged or Whoever sells to, or buys or receives from, any otherperson, or otherwise traffics in or uses as genuine, anyforged or counterfeit currency-note or bank-note,knowing or having reason to believe the same to beforged or counterfeit, shall be punished with[imprisonment for life], or with imprisonment of eitherdescription for a term which may extend to ten years, andshall also be liable to fine Section 489C. Possession of forged or counterfeitcurrency-notes or bank-notes:-Whoever has inhis possession any forged or counterfeit currency-note orbank-note, knowing or having reason to believe the sameto be forged or counterfeit and intending to use the sameas genuine or that it may be used as genuine, shall bepunished with imprisonment of either description for aterm which may extend to seven years, or with fine, orwith both.”

It is not out of place to refer to the provisions of Section 28 IPCwhich defies counterfeit. Section 28 IPC is reproduced as under:- “Section 28. Counterfeit:-A person is said to"counterfeit" who causes one thing to resembleanother thing, intending by means of thatresemblance to practice deception, or knowing itto be likely that deception will thereby bepracticed.

Explanation 1. -It is not essential to counterfeitingthat the imitation should be exact.

Explanation 2: -When a person causes one thing toresemble another thing, and the resemblance issuch that a person might be deceived thereby, itshall be presumed, until the contrary is proved,that the person so causing the one thing toresemble the other thing intended by means of thatresemblance to practice deception or knew it to belikely that deception would thereby be practiced.”

It is neither the allegation of the prosecution that the petitionerindulged in counterfeited currency notes or he knowingly performed anypart in the process of counterfeiting the Canadian dollars. No offence underSection 489 A IPC is thus made out. The petitioner had neither sold, boughtor received from any person any counterfeit currency. He is also not alleged to have trafficking in used as genuine any currency note which was forgedor counterfeited. No offence under Section 489 B IPC is thus made out.For attracting offence under Section 489 C IPC, following necessaryingredients are required to be proved:-

i)That the currency note was forged orcounterfeited;counterfeited; ii)The accused was in actual physical possession ofthe same;the same;

iii)Accused at the time of his possession knew or hadreason to believe that it was forged orcounterfeited;reason to believe that it was forged orcounterfeited;

iv)The accused intended to use the counterfeitedcurrency as genuine or that it might be used asgenuine;currency as genuine or that it might be used asgenuine;

In the present case, the recovery which was effected fromPritpal Singh has not been proved to be that of counterfeited Canadiandollars, as neither any report regarding currency notes being counterfeitedhas been procured nor the concerned expert i.e. officials of the bank hasproved that the currency notes were counterfeited. In this respect, thestatement of PW4 reproduced hereinabove during the trial in case of PritpalSingh can be referred to.

Admittedly, the petitioner was not in possession of the allegedcounterfeited currency notes. There is not even an allegation against the petitioner that he, in any manner, intended to use it as genuine or that itcould have been used as genuine in India.

In view of above discussion, I am satisfied that the FIR doesnot disclose commission of any offence by the petitioner. If all theallegations against the petitioner are presumed to be correct, the only partwhich can be attributed to the petitioner that he escaped on seeing thepolice. State counsel has not been able to show that such an act wouldconstitute an offence.

Taking into consideration the above said circumstances, I deemit appropriate to exercise inherent jurisdiction in the present case to preventthe abuse of process of the Court and to secure the ends of justice byquashing the FIR and criminal proceedings against the petitioner besidessetting aside the order declaring him proclaimed offender which has becomeinfructuous by petitioner having already put in appearance before the trialCourt. The petitioner, if not involved in any criminal case, is permitted toleave India. He is absolved of the liabilities of the interim bail bondsfurnished by him pursuant to the interim orders passed by this Court.

Disposed of.

January 8, 2013 (M.M.S.BEDI) sanjay JUDGE