Shashi Prakash vs State Of U.P. And 3 Others
2018 Latest Caselaw 3937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 1							A.F.R
 
Case :- CRIMINAL MISC. WRIT PETITION No. 33028 of 2018
 
Petitioner :- Shashi Prakash
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vinay Saran,Subedar Mishra
 
Counsel for Respondent :- G.A.,Deepak Kumar,Neeraj Kumar
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I,J.)

1. Learned counsel for the petitioner has filed a supplementary affidavit today in Court, which is taken on record.

2. Learned counsel for respondent no.4 has a filed counter affidavit of Shyam Prakash Dwivedi, whose occupation is social service, which is taken on record.

3. Heard Sri Vinay Saran, learned counsel for the petitioner, Sri Udai Chandani, learned counsel for respondent no.4, Sri Jai Narain, learned AGA for the State and perused the record.

4. This writ petition has been filed with a prayer to quash the F.I.R. dated 12.11.2018 registered as Case Crime No.874 of 2018, under Sections 419, 420, 467, 468, 471 I.P.C ., Police Station Colonelganj, District Allahabad and further a prayer is also made to issue a direction to the respondents not to arrest the petitioner in pursuance of the said FIR.

5. The contentions of learned counsel for the petitioner are that the petitioner is innocent and has been falsely implicated in the present case by the informant, respondent no.4, who is rank outsider having no locus. The informant is a political figure and claims himself to be Kshetriya Upadhyaksh Kashi of ruling Bhartiya Janta Party and is in a habit of lodging false and frivolous complaints and FIRs against different minority institutions and bodies although he has nothing to do with the said institutions and no loss of any kind has been caused to him by anyone including the petitioner.The allegations levelled in the impugned FIR are wholly vague as it has not been specified as to who has embezzled and misappropriated and what amount has been misappropriated or what loss has been caused to whom and on this very ground the FIR needs to be quashed.

6. Further it is argued that previously the present complainant as well as his political friends have lodged FIRs with similar allegations against the minority institutions, copies of which are collectively annexed as Annexure-2 to the writ petition.

7. Further it is argued that on the complaint of respondent no.4, a preliminary inquiry was conducted by the Circle Officer, Allahabad, who obtained a report from the Registrar dated 11.10.2018 in regard to the allegations made in the complaint, copy of the report dated 11.10.2018 is annexed as Annexure-3 to the writ petition, a perusal of which would show that the concerned Assistant Registrar had clarified by his letter dated 11.10.2018 that non-renewal of a registered Society is also not an offence within the meaning of Section 3A (5) of the Societies Registration Act, even thereafter the impugned FIR has been lodged.

8. The fact of the matter is that the "William Holland Hall University College Society Allahabad" (to be referred in brief as " the said Society") was a duly registered Society with the office of Registrar, Societies Chits and Funds, Allahabad and was renewed from time to time till 1995. The required renewal fee was also deposited in respect of the said Society for its further renewal in the year 1995 but due to certain objections raised, the renewal of the said Society remained pending with the concerned Registrar, information regarding which was obtained by the petitioner under the R.T.I. Act, copy of which is annexed as Annexure-4 to the writ petition. The petitioner is an ex-officio member of the said Society. The Committee of the said Society was also approved by the University of Allahabad vide letters dated 27.7.2017 and 28.7.2017, copies of which are annexed as Annexure-5 to the writ petition.

9. Further it is argued that essential ingredients of Section 419 I.P.C. is not made out, hence no offence is made out under Section 419 I.P.C. The petitioner has not deceived any person nor has he dishonestly induced any person so deceived to deliver any property to any person nor has forged any document purported to be valuable security available. The petitioner apprehends his immediate arrest in pursuance of the impugned FIR, therefore, it is in the interest of justice that the impugned FIR be quashed.

10. Learned counsel for respondent no.4 has vehemently opposed the prayer for quashing of the FIR by filing a short counter affidavit and submitted that the dispute in question relates to serious embezzlement and fraudulent act committed by the petitioner along with co-accused persons relating to the property belonging to Commission of Acuminal Mission and Relation of the United Presbyterian Church in the United States of America Church situated in Allahabad having the property of around 23 Bigha, 12 Biswa in the name of the said Society. The aforesaid property was solely belonging to the said Society since 1925 by a registered sale deed, copy of which is annexed as Annexure SCA-1 to the short counter affidavit. The said Society is managing the William Holland Hall University College Hostel which is recognized by the Allahabad University as provided under Schedule-B of the Ordinance XXIII.

11. Further it is argued that the said Society was registered on 30.3.1976 by the Registrar Firms, Societies and Chits, Lucknow and the renewal of the Society was made till 9.10.1995 the last election was held on 1.9.1993 after the establishment of the Regional Office at Allahabad.

12. It is further argued that the petitioner is neither the member of the said Society nor is holding any office in the said Society since the date of its incorporation in the year 1976 till today. The deponent, namely, Shyam Prakash Dwivedi had moved a complaint before the S.S.P., Allahabad against the petitioner and others relating to the serious embezzlement and fraudulent act committed by them and thereafter the S.S.P., Allahabad directed the competent authority to conduct an inquiry relating to the allegations.

13. Further it is argued that in response to an application moved under the RTI Act, it was informed to the respondent no.4 that the renewal of the registration of the Society was not done after 1995 and that the petitioner and other individuals were not the members of the Society nor were having any relation with the managing committee,hence the said Society was not in existence because of its non-renewal, copies of reply under the RTI Act submitted by the Assistant Registrar to the competent authority dated 18.9.2018 are annexed as Annexure SCA-2 & 3 respectively to the short counter affidavit.

14. Further it is argued that on 12.10.2017 in a very illegal manner, a notice was sent to Dr. M. Massy, a co-accused, who alleged himself to be the Secretary of the College, for conducting a meeting of the Governing Body, the copy of the notice dated 12.10.2017 is annexed as Annexure SCA-4 to the short counter affidavit. Thereafter, again on 12.3.2018 a fresh notice was sent to Dr. Massy for the financial reimbursement annual report and other related consideration of the Society calling upon the general meeting, copy of the notice dated 12.3.2018 is annexed as Annexure SCA-5 to the short counter affidavit.

15. It is further argued that in a very illegal manner by issuing the same receipt again and again, the fees was being collected from 20 students respectively by the accused persons and thereafter the said amount was distributed among themselves, which amounted to commission of misappropriation of fund belonging to a non-existing Society, the copy of certain receipt bearing no.683 is annexed as Annexure SCA-6 to the short counter affidavit.

16. Further it is argued that in this connection, an inquiry was conducted in this matter on the direction of the Vice Chancellor of Allahabad University and a detailed report was submitted by the inquiry committee constituted which in its report had stated that serious illegality was committed by the accused persons including the petitioner particularly with regard to:-

(a) illegal appointment of Ashok Massy who is an outsider as Superintendent/Coordinator/Secretary of the Society;

(b) Rampant indiscipline and reinstatement of illegal occupant by the accused persons including the petitioner;

(c) Financial bungling and fraudulent action were being indulged in by Ashok Massy and others;

(d) Misuse and wasteful expenditure of Hostel Fund over the illegal appointment of Ashok Massy and other accused persons including the petitioner.

The photocopy of the detailed report submitted by the inquiry committee of the Allahabad University is annexed as Annexure SCA-7 to the short counter affidavit.

17. It is further argued that a legal opinion was also sought from a Senior Counsel by the Registrar of Allahabad University regarding the bungling committed by the accused persons in the Society and several issues were framed and it was finally opined that the Society was not in existence and the persons claiming themselves to be the member of the managing committee were not authorized to do so and therefore they must be restricted from using any kind of function relating to the Society, the copy of legal opinion is annexed as Annexure SCA 8 to the short counter affidavit.

18. It was lastly argued that finally the petitioner submitted his resignation from the post of Secretary LDTA to the Bishop on 10.11.2018 which demonstrates his involvement in illegal activities of the Society, copy of resignation letter of the petitioner is annexed as Annnexure SCA-9 to the short affidavit. Therefore, the writ petition deserves to be dismissed by this Court.

19. In rebuttal, learned counsel for the petitioner has filed a supplementary affidavit and stated that in the year 1925, the property in question was belonging to the said Society and thereafter it was transferred to the Commission on Ecumenical Mission and relations of the United Presbyterian of Church of North America by way of registered sale deed dated 17.9.1925 and thereafter on 6.7.1984, a deed of appointment of new trustee and transfer of trust of commission on Ecumenical Mission and relations of the United Presbyterian of Church of North America was transferred to the Church of North India Trust Association, a company incorporated under the Company Act having its registered office at 16 Pandit Pant Marg, New Delhi, copy of trust deed dated 6.7.1984 is annexed as Annexure SA-1 to the supplementary affidavit. On account of the said deed, the Church of North India Trust Association became the successor of the Commission on Ecumenical Mission and relations of the United Presbyterian of Church of North America. The Holland Hall University College Society, Allahabad which was duly registered under the Societies Registration Act, was renewed till 1995 and the petitioner was ex-officio member of the said Society.

20. He further argued that since the petitioner was targeted by some anti social elements including the respondent no.4 being the ex-officio member of the said Society, i.e., Holland Hall University College Society, Allahabad, the petitioner resigned on 10.11.2018.

21. Further it is argued that the petitioner neither operated any account of the said Society nor did he withdraw or transfer any single penny to anyone nor has issued any such receipt to any student as alleged in the FIR. Since some complaints were made by the students and inmates of Holland Hall University College Society, Allahabad, an inquiry was conducted by the University and even in that inquiry report petitioner was not found guilty. The Committee of Management of Holland Hall University College Society, Allahabad is wholly genuine and the same has been approved by the Vice Chancellor of the University on 28.7.2017 (copy of which is annexed as Annexure-V to the writ petition).

22. It is further argued that prosecution itself admits that the Society in question was continuously renewed till 1995, hence, there was no dispute in regard to the same and it is also admitted that after 1995 application for renewal was moved by the then Secretary of the said Society which is still pending because of certain objections which have been clarified by letter dated 4.6.2011 (copy of which is annexed as Annexure-IV to the writ petition).

23. Further it is argued that the concerned Assistant Registrar has also clarified through his letter dated 11.10.2018 that non-renewal of a registered society is not an offence within the meaning of Section 3A (5) of the Societies Registration Act.

24. Further it is argued that in one of such similar matters, the Co-ordinate Bench of this Court was pleased to stay the further proceeding of the FIR vide order dated 11.9.2018, copy of the FIR as well as order dated 11.9.2018 are collectively annexed as Annexure SA-3 to the supplementary affidavit.

25. Further it is argued that the impugned FIR is barred by Section 28 of the Societies Registration Act, 1860. Neither the concerned Registrar nor the University has made any complaints against the Society and the petitioner. It is noticeable as to why the respondent no.4 remained silent for so long and did not raise this issue earlier, hence, FIR is liable to be quashed by this Court.

26. Learned A.G.A. vehemently opposed the prayer for quashing of the FIR and states that the FIR discloses a cognizable offence against the petitioner which requires to be investigated in depth by a competent agency.

27. We have heard the arguments of learned counsel of both sides and have gone through the contents of the impugned FIR as well as their respective affidavits and counter affidavit and find that there is serious allegation to the effect that the Society was not registered after 1995 and despite that the amount of about Rs.50 lacs is alleged to have been withdrawn after getting the said amount transferred in the name of the said Society from the Ewing Christian College, Muthiganj and the said amount has been shared by the petitioner along with the other co-accused persons. The allegations which are found to have been made against the petitioner are serious in nature and need to be investigated. Thus, it cannot be said that the impugned FIR does not discloses any cognizable offence against the petitioner or the co-accused persons, hence quashing of the same is hereby refused.

28. It has been brought to the notice of this Court through the impugned FIR that the illegality is being committed in the Institution in question; this Court is of the view that the matter requires thorough independent probe to get to the bottom of truth and in case the petitioner is found to be involved and any prima facie evidence is gathered during the investigation by the investigating agency, the same needs to be brought to book, hence, we think it proper to direct the Chief Secretary of the State of U.P. to ensure that the investigation be conducted in the matter by S.I.T. which shall investigate the matter and submit its report before the appropriate forum/competent court within two months from the date of passing of the order by the Chief Secretary.

29. The Registrar General of this Court is directed to send the certified copy of this order to the Chief Secretary, U.P., Lucknow.

30. With the aforesaid direction, the present writ petition stands disposed of.

(Dinesh Kumar Singh-I, J.)    (Ramesh Sinha,J.)
 
Order Date :- 26.11.2018
 
NS