Ashok Kumar vs State Of U.P.Thru. Prin. Secy. ...
2018 Latest Caselaw 4293 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 9
 
Case :- MISC. BENCH No. - 36022 of 2018
 
Petitioner :- Ashok Kumar
 
Respondent :- State Of U.P.Thru. Prin. Secy. Home & Ors.
 
Counsel for Petitioner :- Akhilesh Kumar Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Lamba,J.

Hon'ble Karunesh Singh Pawar,J.

1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report lodged as case crime No. 329 of 2017, under Sections 419, 420, 467, 468, 471 of IPC, Police Station Khodarey, District Gonda.

2. Heard leaned counsel for the petitioner and learned Government Advocate.

3. The prosecution case in a nutshell is that the petitioner on the basis of forged document has taken appointment on the post of Assistant Teacher. Against the order of appointment one writ petition bearing Writ Petition No. 28266 (SS) of 2016 titled as "Swati Uttam & Others State of U.P. and others" had been filed alleging irregular/illegal appointment. The department found the appointment order prima facie doubtful, hence, the petitioner was given an opportunity to present his case on 21.01.2017 before the District Basic Education Officer, Gonda. The petitioner appeared and presented his case before the Basic Education Officer, Gonda. Vide office letter dated 21.09.2017 the TET documents on the basis of which the petitioner has allegedly got the appointment were sent to Secretary Examination Regulatory Authority Uttar Pradesh, Allahabad for verification. Vide letter dated 25.09.2017, the Regulatory Authority confirmed that there is no such document available on record, which was sought to be verified. Thereafter, the District Basic Education Officer, Gonda terminated the services of the petitioner.

4. The sole defence of leaned counsel for the petitioner is that since Writ Petition No. 6371 (SS) of 2018 titled as "Jitendra Kumar and two others Vs. State of U.P. and others" has been disposed of by permitting the petitioner to make fresh detailed representation to the Joint Director of Education, Faizabad raising all his grievances, therefore, the impugned criminal proceedings be quashed.

The learned counsel for the petitioner submits that since he has filed the said representation immediately after the order, therefore, till the matter is concluded by the Joint Director Education, Faizabad he may not be arrested.

5. We find that writ petition No. 6371 (SS) of 2018 was disposed of vide judgment and order dated 28.02.2018 without expressing any opinion on the merits of the case. The defence taken by the petitioner cannot help him in seeking quashing of the impugned first information report.

6. Mere pendency of proceedings on the administrative side in service matter of the petitioner will not be sufficient to seek quashing of the criminal proceedings, in peculiar facts and circumstances of the case. No material has come on service record of the petitioner to disprove the impugned accusations of forgery.

7. Evidence cannot be taken by way of affidavits and counter affidavits to record a finding that no such incident took place or that the petitioners are innocent. No such material has been placed on record that can be translated into legal evidence so as to disprove the accusation in the impugned First Information Report.

8. We have considered the pleadings made on behalf of the petitioner(s). It would be apt to note the judgment on the issue rendered by Hon'ble Supreme Court of India in Rajiv Thappar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. In Rajiv Thappar's case (supra), the following (relevant portion) has been held:-

?29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution?s/complainant?s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:

30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant?

30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

(Emphasised by us)

30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.?

9. We are of the considered opinion that the material/pleadings on which learned counsel for the petitioner(s) has relied, is not such as would rule out and displace the assertions contained in the charges/allegations levelled against the accused; and the material produced is not of sterling and impeccable quality as would persuade reasonable person to dismiss and condemn the actual basis of the accusation as false.

10. Under the circumstances, we find no ground to interfere in extraordinary writ jurisdiction.

11. The petition is dismissed.

Order Date :- 13.12.2018

R.C.