Friday, August 19, 2022

Allahabad High Court dismisses petition as section 4 and 5 of CrPC do not apply to offences under IPC

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The Allahabad High Court dismissed the petition while observing that the provisions of Sections 4 and 5 of the Criminal Procedure Code do not apply to offenses committed under the Indian Penal Code. These provisions are applicable where a complaint has been made of having committed an offense under the Negotiable Instrument Act.

The Division Bench of Justice Kaushal Jayendra Thaker and justice Gautam Chowdhary passed this order while hearing a petition filed by Mohar Pal And Another.

By way of the petition, the accused petitioners pray for quashment of the first information report dated 25.02.2022 in Case under Sections 420, 406, 120B India Penal Code, Police Station Sungarhi, District Pilibhit and also for staying their arrest in respect of the aforesaid first information report.

Both the petitioners have alleged to have committed what can be said to be offences under Sections 420, 406, 120B of IPC.

The allegations in the FIR are very categorical that the first informant is aged about 28 years and he is doing business. The petitioner no1, namely, Mohar Pal and the petitioner no 2, namely, Suresh have also into business. The first informant moved to the Magisterial Court, who after verifying the facts, issued direction to the police officer to investigate and took cognizable case as the informant had get machines on concessional rates by the petitioner no 1. The bank transaction of Rs 2,03,280 /- from the bank of the informant was made to the petitioner, Mohar Pal. Despite the money being given by way of bank account, no machine was supplied to the informant. This itself shows the culpable mind of the accused Mohar Pal and therefore, the complainant has alleged commission of offence under Section 420, 406, 120B IPC.

Thereafter, Kamlesh Singh to whom the money was also sent, issued a cheque after deducting commission. The amounts could not be realized and therefore, the informant again requested both the accused along with his brother but they have locked the premises and are not available. On 22.06.2021, a first information was given to the Superintendent of Police, Pilibhit but no action was taken and therefore, the informant moved the Court which has directed investigation as it is prima facie found that cognizable offence has been committed by the accused.

It is submitted by the counsel for the petitioners that the alleged incident occurred on 25.08.2020 but the FIR was lodged on 25.02.2022 without any proper explanation.

It is further submitted by the counsel for the petitioners that Sections 4 and 5 of the Cr.P.C would be applicable as according to the petitioner’s counsel, the offence alleged to be committed under the Negotiable Instrument Act.

The Court held that,

These facts go to show that it is not a matter which falls under the Negotiable Instrument Act as sought to be canvassed by the counsel for the petitioners. The provisions of Section 4 of Cr.P.C read with Section 5 relate to procedure where commission of offence under the Special Act.

In the case, the informant has invoked the criminal jurisdiction and not the jurisdiction under Section 138 of the Negotiable Instrument Act and therefore, Section 5 cannot be made applicable.

The FIR cannot be said to be belated as Sections 420, 406, 120B India Penal Code permits lodgment of the FIR within a period as prescribed by Section 468 Cr.P.C which reads as follows.

  1. Bar to taking cognizance after lapse of the period of limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

Therefore, it cannot be said that the offence lodged is belated.

The Court said that the registered case cannot be said to be such which is beyond the period of limitation and that there is a abuse of process of law.

Accordingly, the Court observed that the petition is devoid of merit and is dismissed with the costs of Rs 5,000/- as Sections 4 and 5 of Cr.P.C cannot be made applicable to the facts of this case as we have elaborately discussed that the complainant/informant has not invoked the provisions of the special Act (N.I. Act) but the alleged commission of offences punishable under the Indial Penal Code triable as per procedural law i.e Criminal Procedure Code, the investigation cannot be quashed.

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