Full Judgment
1 M.
Cr.C.No.9376/2011.
20.3.2013 .
Shri Amit Mishra, learned counsel for the petitioneRs.Shri Pramod Chourasia, learned PL for the respondent No.1.
Shri A.T.Faridi, learned counsel for respondent No.2.
Heard on the question of admission.
The petitioneRs.accused have filed this petition under Section 482 of Cr.P.C.
for quashment of the FIR registered as Crime No.276/2011 at Police Station Adhartal, Jabalpur against them for the offence punishable under Section 448, 408 and 34 of IPC.
As alleged the applicants being Bank Officers in connection of recovery of some loan transaction went to the house of the complainant respondent No.2 and attached the same along with some other property as stated in the FIR.
As per further allegations they have committed the offence of misappropriation and breach of the trust with respect of such property and in such circumstances the FIR was lodged by the respondent No.2 against them, on which the offence of Section 448, 408 and 34 of IPC was registered and the same is under investigation.
The petitioneRs.counsel after taking me through the papers placed on the record argued that on taking into consideration the available papers of investigation and FIR as accepted in their entirety even then the ingredients of the alleged offence are not made out against any of the applicants.
As they have not committed any alleged act with intention to commit any offence with respect of the property of the respondent No.2.
In fact they being officers of the Bank carried out the proceeding of the attachment of property to 2 recover the arrears of loan amount against real brother of the respondent No.2.
In the couRs.of such proceeding due to oversight at the place of mortgaged property some other property was attached and later on they came to knot that by mistake the property of the respondent No.2 has been attached on which the same was returned to such respondent No.2 in presence of the police.
In continuation he said that the aforesaid explanation put forth by the applicants could be examined by this Court at this stage under Section 482 of Cr.P.C.
In this regard he has placed his reliance on a decision of the Apex Court in the matter of Anita Malhotra versus Apparel Export Promotion Council and another reported in (2012) 1 SCC 520.specifically he referred para 20 of this decision.
He further said that in any case the alleged work being carried out by the applicants in discharging their official duty bonafidely then they could not be prosecuted giving the shape of the offence to such act.
He further said that impugned investigation could not be continued or carried out against the applicants unless the proper sanction of the concerning authority under Section 197 of Cr.P.C.
is obtained by the investigation agency and prayed for quashment of FIR along with its entire proceeding.
Having heard keeping in view the arguments advanced, I have carefully gone through the papers placed on record, so also case diary and aforesaid decision of the Apex Court.
After going through aforesaid decision of the Apex Court, I am of the view that unless full investigation of the impugned crime is carried out by the police the impugned matter could not be considered and adjudicated for quashment of the FIR mere on the basis of the aforesaid cited 3 decision.
After holding investigation if the investigation agency comes to the conclusion that no offence is made out against the applicants then final report under Section 169 of Cr.P.C.
could filed before the competent Court and in such premises there shall be no necessity to quash the FIR.
Beside the aforesaid, if after holding investigation the charge sheet is filed against the applicants then they shall be at liberty to approach the appropriate forum on the admissible ground with appropriate proceeding including the forum of this Court under Section 482 of Cr.P.C.
for quashment of the charge sheet.
So, in such premises also at this stage I am not inclined to admit or allow this petition for quashment of FIR.
It is also observed that at present some prima-facie circumstances showing the circumstances of cognizable offence are available in the FIR and the same are required further investigation, in such premises also no inference could be drawn against the investigation agency unless the investigation is completed by such agency.
In view of the aforesaid, this petition is hereby dismissed by extending a liberty to the petitioners to approach the appropriate forum with appropriate proceeding after completion of the investigation of the impugned case and on filing any charge sheet against the applicants or any of them.
The petition is dismissed at this stage with aforesaid liberty.
(U.C.Maheshwari) Judge k