Quashing of fir under crpc 482 at high court
SUSHIL KHANNA
(Querist) 09 December 2015
This query is : Resolved
I am an employee of Central Public sector enterprise.
Recently, a contract executed between my organisation and the contractor was terminated by the organisation in line with the conditions of contract. After termination, as per the instructions of management, I myself and 5 more officials including CISF personnel were directed to take into custody certain materials and machinery of the contractor available at site and place it in the stores of the organisation. The contractor was paid certain cash advances by the organisation for procurement of the said material & machinery. Also, Indemnity bond has been executed by the contractor in favour of the organisation for the said materials.
On the first day of shifting of material, the contractor willfully allowed the same and also signed the joint recordings. But the next day, he allowed shifting of materials but refused to sign the joint recordings. So, CISF was taken as third party witness and signed the joint recordings. After shifting the material, the details of materials shifted was communicated by letter to the contractor and he was asked to verify it as per his convenience. But he did not respond to it.
Subsequently, the contractor filed a criminal complaint in the local police station against me and the five individuals under section 382 & 397 (a), r/w 34 of IPC charging illegal seizing of material and machinery and dacoity.
The local police took our statements and made their investigation and did not file FIR.
Later, the contractor approched the court of Judicial Magistrate FC with the same complaint citing inaction by Police.
JMFC issued the order to local police to investigate the offence under sec 156(3) of CrPC, to send the complaint to police stn for registering the crime and treating complaint as FIR.
Subsequently, police filed an FIR. They have recorded my statement as accused 1.
We are considering to approach High court under Sec 482 for quashing of FIR on foll grounds -
1) The action taken is not personal in nature and has been taken in discharging of duties as a public servant to safeguard public interest.
2) The dispute is totally civil in nature and does not form a cognizable criminal offence.
3) The contractor has already initiated arbitration proceedings against organisation and dispute can be taken up in the arbitration.
4) The basic purpose of complaint is to harass the individuals and put them under undue turmoil.
I request the esteemed experts to kindly give their opinion if the case for quashing will stand or suggest improvement/remedy.
Thanks in advance
T. Kalaiselvan, Advocate
(Expert) 19 December 2015
1) The action taken is not personal in nature and has been taken in discharging of duties as a public servant to safeguard public interest.
Do you have proof to prove this statement by way of an office order or authorisation letter given in your name by your office specifically to carry out this work? Nobody from your office will sand by you in case of crisis especially in the absence of orders communicated to you carry out this function because such orders need permission from higher authority or court especially to seize the material from a third party and the procedure is to take the help of police to enforce such orders passed by court.
Therefore you first ascertain your position and create all documentary evidences supporting your cause of action done in good faith in the interest of office and not in your personal interest.
Interestingly you will find some one in your own office digging a pit to trap you in this case.
2) The dispute is totally civil in nature and does not form a cognizable criminal offence.
Please note that an unauthorized entry into somebody's property is a criminal trespass offence and lifting the material from his property constitutes to dacoity or theft. Dont conclude law as per your own understanding.
3) The contractor has already initiated arbitration proceedings against organisation and dispute can be taken up in the arbitration.
By such arbitration the contractor did not authorise you to enter his premises and take away his property, so this has no relevance to the criminal case filed against you.
4) The basic purpose of complaint is to harass the individuals and put them under undue turmoil.
That you have to argue during the trial proceedings alone.
In general you can fight for quash on the basis of the first day's incidence wherein the contractor himself has signed and cooperated with you to take the materials from his property and also his dues to the office.
