quashing of charge sheet under sec.482 of Cr.P.C.

June 7, 2015 Legesjuris Criminal Laws in India/Criminal Lawyers Leave a comment

In this connection, I may profitably use the dictum of the Apex Court in a decision in 1992 Supp (1) SCC 335 : (1992 Cri LJ 527) in the case of State of Haryana v. Bhajan Lal wherein it was held by the Apex Court that.

“We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.”

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See the judgment of quashing of charge sheet.

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Supreme Court of India

K.Neelaveni vs State Rep.By Insp.Of Police & Ors. on 22 March, 2010

Author: H C Prasad

Bench: D.K. Jain, C.K. Prasad

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.574 OF 2010

[arising out of SLP(Crl.)No.3562 of 2009]

NEELAVENI ….. APPELLANT VERSUS

STATE REP. BY INSP. OF

POLICE & ORS. …..RESPONDENTS J U D G M E N T

HON. C.K. PRASAD, J.

Leave granted.

The appellant-wife aggrieved by the order dated 29th September, 2008 passed by the High Court of Judicature at Madras in Criminal O.P. No. 23473 of 2008, whereby it had quashed the charge sheet under Sections 406 and 494 of the Indian Penal Code, has preferred this appeal seeking special leave to appeal.
Shorn of unnecessary details, the facts giving rise to the present appeal are that the appellant-wife K. Neelaveni on 07/11/2002 gave a written report to the Inspector of Selaiyur Police Station, inter alia, alleging
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that her marriage was performed with accused respondent No. 2 – S.K. Siva Kumar on 3rd September, 1997 in which gold ornaments and various other household articles were given by her parents. She had further alleged that her husband used to abuse her and her family members under influence of alcohol and demanded Rs. 50,000/- from her parents. According to the First Information Report, when she was pregnant, on scan it was found that she was carrying a female foetus, her husband and his family members started harassing her and insisted for aborting the child. On her refusal to give consent for abortion according to the informant on 18.1.1998, her husband, mother-in-law, brother-in-law and sister-in-law assaulted her and had driven her out from the matrimonial home and the husband left her on way to her parents house. She gave birth to a girl child on 25.6.1998.

Informant in the written report had further alleged that her husband had married another lady namely, Bharathi without her consent with the help and in the presence of other accused persons. She had further alleged that a female child was born to them in the wedlock.
On the basis of the aforesaid written report, a case under Sections 406, 494 and 498A of the Indian Penal Code
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was registered against the accused persons. Police after usual investigation submitted charge sheet under Sections

494 and 498A of the Indian Penal Code.
Accused persons namely respondent Nos. 2 to 13 filed petition before the High Court for quashing the charge sheet under Sections 406 and 494 of the Indian Penal Code, inter alia, contending that in the absence of any material to show that "the second marriage was duly performed with religious rites and essential ceremonies" charge sheet under Section 494 of the Indian Penal Code is fit to be quashed. It was, further, contended that allegations made in the First Information Report and the materials collected during the course of investigation do not fulfill the ingredients of offence under Section 406 of the Indian Penal Code. Aforesaid submissions found favour with the High Court and it had quashed the charge sheet under Sections 406 and 494 of the Indian Penal Code. While doing so the High Court observed as follows:-

"As rightly contended by the learned

counsel for the petitioners, a careful reading of the complaint of the second respondent, statements of witnesses recorded under Section 161 Cr.P.C. and the charge sheet do not reveal the ingredients constituting the offences under Section 494 and 406 IPC, yet the first respondent has chosen to file the charge for the said

offences. Therefore, this court is constrained to
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quash the charge sheet as against the petitioners as far as the offences under Sections 406 and 494 IPC alone are concerned. It is made clear that the charge sheet as against the petitioners under Section 498A IPC is not quashed."

Mr. Guru Krishna Kumar, the learned counsel on behalf of the appellant submits that the conclusion arrived at by the High Court that the charge sheet did not reveal the ingredients constituting the offences under Sections 494 and 406 of the Indian Penal Code is erroneous. He draws our attention to the First Information Report and submits that there is an allegation of the second marriage and even birth to a child and hence it cannot be said that ingredients constituting offence under Section 494 of the Indian Penal Code do not exist. He pointed out that the High Court while considering the application for quashing of the charge sheet was obliged to take into account the allegations made in the First Information Report and the materials collected during the course of investigation. He submits that in case the allegations made in the First Information Report and the materials collected during the course of the investigation are taken into account, same constitute an offence under Section 494 of the Indian Penal code. It has further been pointed out that gold ornaments and household articles were given to the husband and she
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was driven out from the matrimonial home on a refusal to consent for abortion. Accordingly, Mr. Guru Krishna Kumar submits that allegation in the First Information Report and the materials collected during the course of investigation clearly constitute offences under Sections 406 and 494 of the Indian Penal Code.

Mr. R. Shunmugasundaram, learned senior counsel appearing on behalf of respondent Nos. 2 to 13, however, submits that the ingredients of an offence under Sections 406 and 494 of the Indian Penal Code do not exist and, therefore, the High Court did not err in quashing the charge sheet under Sections 406 and 494 of the Indian Penal code.
We have given our thoughtful consideration to the submissions advanced and we are inclined to accept the submission of Mr. Guru Krishna Kumar, learned counsel for the appellant. From a perusal of the allegations made in the First Information Report, it is evident that the appellant has clearly alleged that her husband had married another lady namely Bharathi and the said marriage had taken place in the presence and with the support of other accused persons. She had also stated that from the second marriage with Bharathi a girl child was born. In the First
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Information Report, it had clearly been alleged that besides gold ornaments other household articles were given in marriage and further she was subjected to cruelty and driven out from the matrimonial home by the accused persons. In our opinion, the allegations made in the First Information Report, at this stage, have to be accepted as true, and allegations so made prima facie, constitute offences under Sections 406 and 494 of the Indian Penal Code. It has to be borne in mind that while considering the application for quashing of the charge sheet, the allegations made in the First Information Report and the materials collected during the course of the investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. Essential ceremonies of the Marriage were gone into or not is a matter of trial.

From what we have said above, we are of the opinion that the High Court erred in holding that the charge sheet does not reveal the ingredients constituting the offences under Sections 494 and 406 of the Indian Penal Code.
It seems that accused persons approached the High Court for quashing of the charge sheet even before any order was passed by the Magistrate in terms of Section 190
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of the Code of Criminal Procedure. In our opinion, when a report is submitted to the Magistrate he is required to be prima facie satisfied that the facts disclosed therein constitute an offence. It is trite that the Magistrate is not bound by the conclusion of the investigating agency in the police report i.e. in the charge sheet and it is open to him after exercise of judicial discretion to take the view that facts disclosed in the report do not constitute any offence for taking cognizance. Quashing of Sections 406 and 494 of Indian Penal Code from the charge sheet even before the exercise of discretion by the Magistrate under Section 190 of the Code of Criminal Procedure is undesirable. In our opinion, in the facts and circumstances of the case, quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code at this stage in exercise of the power under Section 482 of the Code of Criminal Procedure was absolutely uncalled for.

It is relevant here to state that offences under Sections 406, 494 and 498A are triable by a Magistrate, First Class and as all these offences are punishable with imprisonment for a term exceeding two years, the case has to be tried as a warrant case. The procedure for trial of warrant case by a Magistrate instituted on a police report
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is provided under Chapter XIX Part A of the Code of Criminal Procedure, 1973. Section 239 inter alia provides that if upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It seems that the accused persons even before the case had reached that stage filed an application for quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code. In our opinion, the High Court ought not to have interfered after the submission of the charge sheet and even before the Magistrate examining as to whether the accused persons deserved to be discharged in terms of Section 239 of the Code of Criminal Procedure.

There is yet another reason which the High Court ought to have considered before quashing the charge sheet under Sections 406 and 494 of the Indian Penal Code. All the offences are triable by Magistrate and quashing of the charge sheet under Sections 406 and 494 of the Indian Penal Code had not resulted into exonerating the accused persons from facing the trial itself. Matter would have been
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different had the offences under Sections 406 and 494 of the Indian Penal Code been triable as sessions case. In matter like this the High Court ought to have allowed the provisions of the Code of Criminal Procedure referred to above its full play.

For all these reasons we are unable to sustain the order impugned in the present appeal.
We hasten to add that all the observations made in this judgment are for the purpose of disposal of this appeal and shall have no bearing during the course of trial.
In the result, we allow the appeal and set aside the impugned judgment.

………………J

[ D.K. JAIN ]

………………J

[ C.K. PRASAD ]

NEW DELHI

Lala Shyamlal Jain Ship Breaking … vs State Of West Bengal And Anr. 2004 CriLJ 4067

Author: P K Biswas

Bench: P K Biswas

ORDER

Pradip Kumar Biswas, J.

In C.R.R No. 303 of 2003, petitioner No. 1 Lala Shaymlal Jain Ship Breaking Co. Pvt. Ltd. and six others have filed one application under Section 482 of the Code of Criminal Procedure seeking for quashing of Charge sheet under Section 198 dated 27-11-2002 under Sections 420/403/ 406/421/422/120B of the Indian Penal Code pending before the Ld. Sub Divisional Judicial Magistrate, Howrah (Sadar) in connection with G.R. Case No. 85 dated 15-5-2002 under Sections 420/403/406/421/ 422/120B of the Indian Penal Code.
Similarly, in C.R.R. No. 304 of 2003. M/s. Amar Steel Industries and six others have also filed another application under Section 482, of Cr.P.C. seeking for quashing of the charge sheet No. 199 dated 27-11-2002 under Sections 420/421/422/ 403/406/120B of I.P.C. now pending before the Ld. S.D.J.M., Howrah (Sadar) in connection with G.R. Case No. 790 dated 15-5-2002 under Sections 420/403/406/421/422/ 120B of I.P.C.
The broad facts of challenge in both these applications being similar, those are taken up for decision analogously by a single Order.
The present petitions have alleged that the petitioner No. 1 is the pioneer in the business of ship breaking in eastern India and petitioner Nos. 2 to 7 are the directors of petitioner No. 1 and/or partners of petitioner No. 1 and/or guarantors of the loan taken by the petitioner No. 1 from O.P. No. 2. In the year 1985, the petitioners opened a bank account with the opposite party No. 2 at its Liluah Branch and in order to facilitate smooth running of the business, they decided to avail of credit facilities with the said branch of opposite party No. 2 and in turn they entered into an Agreement of Hypothecation of goods and Agreement of Hypothecation of Book Debts and also pledged several movable and immovable assets as collateral security against the credit limit obtained from the opposite party No. 2 and the petitioners also executed some other supplementary agreements. In course of their business, petitioners purchased a ship and for such purpose, one application was filed by petitioner No. 1 for opening an irrevocable letter of Credit by the opposite party No. 2 in favour of Titan Limited for U.S. D. 900,000 on 28-8-2002 and petitioner No. 1 issued a trust receipt in favour of opposite party No. 2 with regard to the purchase of the said ship and after dismantling, the parts of the said ship were sold to various customers, but the creditors who purchased those parts, failed to keep their commitment with regard to payment of a huge sum and the said fact was brought to the notice of opposite party No. 2, when the stock statement and /or list of Sundry Debtors of the petitioner No. 1 was submitted to the opposite party No. 2, but all of a sudden, the petitioners received a demand notice from the learned counsels of the O.P. No. 2 for recovery of an amount of Rs. 5 crores and odd with interest upto 31-12-2001 and thereafter on 18-2-2002, the opposite party No. 2 file an application under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 before the Kolkata Debts Recovery Tribunal No. II. The petitioners received summons to appear before the said Tribunal and they duly appeared before the said Tribunal through their learned Advocates and the aforesaid case is till pending before the said Tribunal, but despite filing of the aforesaid application, one written complaint was lodged by Mr. A.K. Dev, Senior Manager of Lilauh Branch and Constituted Attorney of the Oriental Bank of Commerce with the Officer-in-Charge of the Bali Police Station, inter alia, alleging commission of offence punishable under Sections 420/403/406/ 421/422/120B of the Indian Penal Code committed by the present petitioners alleging therein among others that the first opposite party in the petition of complaint with the assistance and being aided and abetted by opposite party Nos. 2 to 7 with a view to making wrongful gain to themselves and to cause wrongful loss to the bank disposed off the hypothecated stocks of goods and scraps and other materials and did not deposit the sale proceeds thereof with the Bank. It was also alleged that with the similar intention, the aforesaid opposite party being aided and abetted by opposite party Nos. 2 to 7 collected the book debts and did not deposit the same with the Bank and alleging further that it was apparent that there was entrustment of hypthecated assets and there were misappropriation by the opposite parties and use thereof in violation of the said contract with dishonest intention and in breach of trust and also alleged that the opposite parties have dishonestly and fraudulent removed, concealed and delivered to other those assets and properties charged and hypothecated to a Nationalised Bank which are kept in the trust of the opposite parties and as such this was the dishonest intention and to prevent realisation of public money out of the said properties and ultimately it was also alleged that the facts disclosed in the petition of complaint clearly disclosed the commission of offence punishable under Sections 120B/420/403/405/421/422 of I.P.C.
Acting on the aforesaid letter, case was registered and in connection with the aforesaid case the present petitioners surrendered before the Courts on various dates and were ultimately released on bail by the concerned court.
It has further been alleged by the petitioners that on completion of a perfunctory investigation, the investigating officer submitted a report in the final form being charge-sheet being No. 198 dated 27-11-2002 under Sections 420/421/427/403/406/120B of the Indian Penal Code against the petitioners in C.R.R. No. 303 of 2003. Charge-sheet No. 199 dated 27-11 -2002 under Sections 420/421 /422/403/406/120B of I.P.C. was also filed against the petitioners in C.R.R. No. 304 of 2003).
It was further alleged that pursuant to the filing of the aforesaid charge sheets, the learned Magistrate by his order dated 10-12-2002 was pleased to take cognizance of the offence and issued warrant of arrest against one of the petitioners, namely, Smt. Sonali Jain as she was shown as an absconder by the investigating officer and the prayer was made against her for issuance of warrant of arrest.
Subsequently, the aforesaid petitioner surrendered before the concerned Court and was released on bail.
It has been alleged further by the petitioners that being aggrieved by and dissatisfied with the order dated 10-12-2002 passed by the Learned Magistrate, Howrah, Sadar, regarding taking of cognizance of the offence on the basis of the charge sheets, as indicated above, and for quashing of the aforesaid charge-sheet, they have filed the instant application praying for quashing of the charge sheet and/or for setting aside of the order dated 10-12-2002, whereby and whereunder cognizance was taken by the Learned Magistrate, alleging that this is a clear case of glaring example of non application of the judicial mind as in the instant case, mens rea being an important ingredient in connection with the commission of offence, it will be clear that combined reading of the F.I.R. and the charge sheet without any addition thereto or subtraction therefrom still show in unmistakable term that even there is a fact of disposal of hypothecated goods, but there is no mens rea either to caused any wrongful gain to the sellers or wrongful loss to the Bank with whom goods were hypothecated and it is more so when ingredients of the some other offences namely Sections 421 and 422 of I.P.C. are thoroughly conspicuous by their absence on the allegations levelled in the instant case.
In consequence thereof, they have come up with the aforesaid prayers.
This prayer was, however, opposed by the opposite party/de facto complainant and the State alleging that the allegation levelled in the petition of complaint and subsequently incorporated in the charge-sheet will certainly show that prima facie case as alleged against the petitioners has been established and at the stage of quashing of F.I.R. or the charge-sheet, as the case may be, the Court need not embark upon any sort of enquiry and the meticulous analysis of the case before the trial Court to find out whether the case would end in conviction or acquittal is not necessary and the Court will simply quash the proceeding if it appears to the Court on the available materials that no prima facie case has been made out and such power should be exercised by the Court either to prevent the abuse of the process of the Court or to meet the ends of justice. But, as per the settled position of law, the power of the Court in this regard should be exercised with utmost circumspection and that should be used very sparingly only in the rarest of the rare cases. But, in doing so, the Court should not embark upon any sort of enquiry with a view to find out the truthfulness or otherwise of the allegation.
I have heard the submissions by the learned advocates appearing for the parties at length.
Drawing my attention to the clause 2 of the Agreement itself, it has been contended on behalf of the petitioners that Clause 2 of the Agreement of Hypothecation of goods authorises the petitioners to sell those goods in the ordinary course of their business and drawing my attention to the paragraphs 6 to 9 of their written statement filed before the Debts Recovery Tribunal it was contended further that to meet the depression and recession in the ship breaking business, they gave a proposal of restructing of their account with the Bank itself, with a proposal to convert the said outstanding amount to working capital term loan account with a further request for sanctioning of Letter of Credit-cum-Cash Credit facility for Rs. 800 lacs against further collateral security of immovable property and pledge of LIC Policy and in consequence thereof, they submitted three years balance sheet etc., but the concerned Bank neither considered restructuring of the account nor even taken any steps to realize its security being the book debts to the customer of the petitioners and on the other hand with a mala fide intention they have filed the criminal complaint against the present petitioners.
In this connection, it has been contended on behalf of the petitioners that although in the charge sheet it has been mentioned that a prima facie case has been well established against the accused petitioners for cheating Govt. money from the Bank after committing criminal conspiracy among others which caused losses to the national exchequer, yet, there is no mens rea whatsoever as will be reflected from the materials available on record and according to the petitioners the failure to collect the money from the purchasers being beyond their control they could not be held responsible alone for not refunding the money of the Bank and the non-performance of the Clauses of Agreement with regard to the payment is certainly protected by doctrine “impossibility of performance” for which no criminal offence could be maintained against them, although their civil liability will remain.

In the premises as aforesaid, they have come up with the prayer for quashing and it has been submitted on their behalf of that the charge sheet, and the order of taking cognizance are unsustainable in law and as such it should be set aside.

From the side of the de facto complainant as well as the State/Opposite Party, it has been contended that for the purpose of quashing of the complaint/F.I.R. and the charge-sheet, as the case may be, it is now quite well settled principles of law that Court will not embark upon any sort of enquiry while disposing of the application, seeking quashing of the F.I.R./Complaint and/or charge-sheet and at that stage, the Court will have to act on the prima facie materials as available in the complaint/F.I.R. or the in the Charge-sheet and if upon looking into those materials as a whole-without adding anything or subtracting anything therefrom, if it appears to the Court that no case has been made out, the Court should come forward to quash the same with a view to prevent the abuse of the process of the Court and/or to meet the ends of justice. But it has been contended on their behalf that the way the petitioners wanted to analyse the materials available before this Court, precisely the query whether they are entitled to sell in ordinary course of their business, whether or not for such matters permission was obtained and/or whether or not provision was there for sale or not or whether sales were sales in the ordinary course of business cannot be gone into at this stage of the case and para 9 of the complaint specifically demolishes the case of the petitioners wherein it has been clearly disclosed that the bank officer visited the premises of the petitioners but did not find stocks or goods or scraps or vessels and/or on further enquiry found that the book debts were collected but the same were not deposited into the Bank and such statements are sufficient enough to conclude that there were sufficient allegations against the present petitioners to proceed with the criminal case.

Drawing my attention to the Paragraph 7 of their written statement filed before the Debts Recovery Tribunal, it was contended on behalf of the opposite parties that even in their written statement before the Debts Recovery Tribunal, they did not admit their liability and the said fact taken together with the allegations in the petition of complaint and as reflected in the charge-sheet would clearly suggest that the petitioners had mens rea in the connected matter.
In the premises, as above, it was contended by them that the quashing, as prayed for by the petitioners cannot at all be allowed.
I have given my anxious consideration with regard to the submissions made by the parties.
It has now become more than settled that in quashing the complaint or the F.I.R. or the charge sheet, the Court has to exercise its power under Section 482 of Cr.P.C. with extreme circumspection.
In this connection, I may profitably use the dictum of the Apex Court in a decision in 1992 Supp (1) SCC 335 : (1992 Cri LJ 527) in the case of State of Haryana v. Bhajan Lalwherein it was held by the Apex Court that

Again, in a decision (From Karnataka)

in the case of State of Karnataka v. M. Devendrappa , it was clearly laid down by the Apex Court that “Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court, and (iii) to otherwise secure the ends of justice.

It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of High Courts. All Courts, whether Civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quande lex aliquid aliqui concedit, concedere videtur in sine qua ipsa, esse non potest” (when the law gives a person anything it gives him without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debite justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers. Court would be justified to quash any proceeding if it finds initiation/continuance of it amounts to abuse of process of Court or quashing of these proceedings would otherwise were the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complaint has alleged and whether any offence is made out even if the allegations are accepted in toto.”

Again, it was laid by the Apex Court in the aforesaid judgment that “As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage (See the Janta Dal etc. v. H.S. Chowdhary , Dr. Raghubir Saran v. State of Bihar

. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding”.

Examining the rival contentions of the parties in the light of the aforesaid principles of law enunciated by the Apex Court, I am of the clear opinion that in the instant case, the prayer for quashing of the charge-sheet by the petitioners specially by the petitioner Nos. 2 to 7 cannot at all be allowed on the existing materials reflected from the petition of complaint and further reinforced by the investigation, conducted in this case by the prosecuting agency.
Accordingly, on the available materials, I hold with utmost assertion that the quashing as prayed for by them of the charge-sheet and/or setting aside of the order dated 10-12-2002 passed by the S.D.J.M., Howrah, Sadar in taking cognizance of the offence on the basis of the charge-sheet Vide Charge-sheet No. 198, dated 27-11-2002 as also the Charge-sheet No. 199, dated 27-11-2002 cannot at all be allowed. Accordingly, their prayer should be rejected.
But, the case of the petitioner No. 1 in these cases stand on a quite different footing.
True it is that in many recent penal statutes, Companies and Corporations are deemed to be offenders on the strength of the acts committed by the persons responsible for the management of the affairs of such Companies or Corporations.
But, in the Penal Code, there is, however, no provision which makes a Company or an Association of persons liable for prosecution for the offences of which, mens rea, is one of the essential ingredients. It is, therefore, apparent that if a statute defining offences, makes the mens rea or particular state of mind to be essential ingredients of such offence, a Company or an Association of persons cannot be prosecuted for such offences though its officers or directors responsible for the management of the affairs of such Company may be liable of such prosecution.
In that view of the fact, I hold with certainty that Company or a Corporate Body cannot be prosecuted for an offence of which mens rea is an essential ingredient.
Here in the instant case the charge-sheet has been submitted against the petitioner No. 1 and petitioner Nos. 2 to 7 for I.P.C. offences under Sections 420/421/ 422/403/406 and 120B of I.P.C. Needless to say, for such offences, mens rea is an essential ingredient.
That being the position, the present case cannot be proceeded with against the petitioner No. 1, a company or a partnership firm and, therefore, I hold with certainty that the quashing of the charge-sheet insofar as it relates to petitioner No. 1 in both these cases should be allowed and the order of taking cognizance insofar as it relates to petitioner No. 1 should also be set aside.
In consequence thereof, the prayer for quashing of the F.I.R. as also the prayer for setting aside the order dated 10-12-2002 passed by the Ld. S.D.J.M., Howrah, Sadar, insofar as it relates to the present petitioner Nos. 2 to 7 are, hereby, rejected. But, the charge-sheet No. 198 of 2003, dated 27-11-2002 under Sections 420/403/406/421/ 422/120B of the Indian Penal Code and the Charge-sheet No. 199, dated 27-11-2002 under Sections 420/421/422/403/406/ 120B of I.P.C. insofar as it relates to petitioner No. 1 are hereby quashed and the order dated 10-12-2002 passed by the Ld. S.D.J.M., Howrah, Sadar, insofar as it relates to petitioner No. 1 in both the cases are, hereby, set aside.
In the result, the revisional application succeeds in part.
Interim orders, if there be any, stand vacated.
The learned trial Court is directed to proceed with this trial with utmost expedition against the petitioner Nos. 2 to 7.
This order shall govern both the applications being C.R.R. No. 303 of 2003 and C.R.R. No. 304 of 2003.
Urgent xerox certified copy, if applied for, be given to the parties with utmost