Allahabad High Court
Shyam Babu Kesharwani vs State Of U.P. And Another on 20 October, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 18.10.2022
Delivered on 20.10.2022
Court No. - 84
Case :- APPLICATION U/S 482 No. - 19751 of 2022
Applicant :- Shyam Babu Kesharwani
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Anjani Kumar Rai,Ashok Kumar Rai,Pramod Kumar Singh,Sr. Advocate
Counsel for Opposite Party :- G.A.,Pramod Kumar Srivastava
Hon'ble Saurabh Shyam Shamshery,J.
1. It is vehemently argued by Sri Mangla Prasad Rai, learned Senior Advocate assisted by Sri Ashok Kumar Rai, learned counsel for applicant, submits that criminal proceedings initiated against applicant are mala fide and were initiated in order to take revenge as the departmental proceedings initiated against applicant were set aside and he was reinstated. Learned Senior Advocate further submits that the allegations are based on an inspection conducted allegedly in presence of a Magistrate wherein the locks of Almirah of the office of applicant were unlocked and certain papers were collected to allege that applicant has committed various irregularities in the procedure and embezzled certain amount also. However, the said document is not a part of case diary and as such no offence can be made out against applicant. He placed reliance on the documents annexed alongwith the affidavit filed in support of application.
2. The above arguments are opposed by Sri Paritosh Malviya, learned AGA for State and Sri Pramod Srivastava, Advocate for Opposite Party No. 2. Learned counsel for Opposite Party No. 2 has placed reliance on documents annexed alongwith case diary, photocopy of which is taken on record. Learned AGA has submitted that inspection of Almirah was conducted and a detailed report was prepared wherein as many as 25 items were shown to be either missing or due procedure was not followed. A list thereof is part of case diary, which is duly signed by Executive Engineer.
3. In order to verify, whether said document is part of case diary or not, I myself have perused the case diary and found that in the statement of complainant it has been specifically mentioned that such report was prepared in presence of Magistrate and further there are details in the case diary that documents submitted by complainant were taken on record which have specifically been mentioned at Parcha Nos. 10, 11, 12 and 13. Further, there is a letter of Naib Tehsildar, in whose presence such inspection was conducted, addressed to Additional District Magistrate, Kaushambi and copy of same was also sent to Superintendent of Police, Kaushambi, which is a part of case diary. Alongwith said letter the documents are annexed including the said report as well as list of documents. Therefore, the argument of learned Senior Advocate, being contrary to record, is rejected.
4. On the basis of contents of FIR and statements recorded during investigation as well as documents on record, prima facie case is made out against applicant under Sections 467, 468, 419, 420, 406 IPC, therefore, in view of the judgment passed by Supreme Court in Daxaben vs. State of Gujarat and others, 2022 SCC OnLine SC 936 wherein it is held that, in a case where the investigation carried out shows that a prima facie case is made out against applicant, inherent power shall not be exercised, therefore, no interference is required in the present case.
5. The application is accordingly dismissed.
6. After pronouncement of judgment, learned Senior Advocate appearing for applicant, submits that applicant is ready to surrender before the Trial Court and prayed that Trial Court be directed to consider his bail application in accordance with law.
7. Learned A.G.A. appearing for State has no objection against the aforesaid prayer.
8. In view of above, the applicant is directed to surrender before Trial Court and file bail application in Criminal Case No. 1205 of 2019 (State vs. Shyam Babu Kesharwani), arising out of Case Crime No. 106 of 2018, under Sections 467, 468, 419, 420, 406 IPC, Police Station Manjhanpur, District Kaushambi and Trial Court is directed to decide the same in accordance with law.
Order Date :- 20.10.2022
AK
