Krishna Swaroop Saxena vs State Of U.P. And Another
2023 Latest Caselaw 28469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:198126
 
Reserved on 21.09.2023
 
Delivered on 13.10.2023
 
Court No. - 78
 

 
Case :- APPLICATION U/S 482 No. - 21844 of 2023
 
Applicant :- Krishna Swaroop Saxena
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Devashish Mitra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. The present application has been filed for quashing of the entire proceedings of Criminal Case No. 4 of 2020, (State vs. Deep Chand & Ors.), Case Crime No. 981 of 2013, under Sections 419, 420, 467, 468, 471, 120-B IPC and Section 13(1)(d) and Section 13(2) of Prevention of Corruption Act, P.S. Subhash Nagar, District Bareilly, pending in the Court of Additional District & Sessions Judge/Special Judge, P.C.Act, Court No. 1, Bareilly.

3. It has been argued by learned counsel for the applicant that the allegations levelled against applicant, are wholly false and that no prime case is made out against applicant and that the impugned proceedings are nothing but abuse of the process of law. The applicant was appointed on 17.01.1973 as Office Clerk in the office of District Basic Shiksha Adhikari, Bareilly (hereinafter referred as 'BSA') and that during the period from 27.07.1996 to 17.11.2006 applicant was posted as Senior Assistant District Basic Education Officer, Bareilly. It was stated that a complaint was made to the District Magistrate, Bareilly (hereinafter referred as 'District Magistrate') in the year 2001 that Madan Pal Singh Kushwaha, BSA, Bareilly has passed orders of transfer/absorption of assistant teachers in primary schools, who were never appointed as an assistant teachers and in the name of transfer, they were given posting. In inquiry by Regional Assistant Director, Bareilly, it was found that on 06.09.2001 the then BSA has passed order for five assistant teachers, namely, Anuj Gupta, Nayeem Raja Khan, Riyasat Hussain, Ram Pratap Gangwar and Sri Asfaq. The Prati Up Vidhyalaya Nirikshak has not given permission for their joining in the schools, where they were posted and they have signed on attendance register in December, 2001 and thereafter they left the institutions. The District Magistrate has sent a letter to the Secretary, Basic Shiksha, State of U.P. to take action against M.P. Singh Kushwaha BSA and Counter Assistant Arun Kumar Saxena. Later on a vigilance inquiry was conducted and first information report was lodged against 29 persons including the applicant. Referring to the facts of the matter, it was submitted that no prima facie case is made out against the applicant and there is no evidence to show his involvement in the entire incident. The entire proceedings are being conducted on the basis of a photocopy of the order dated 09.10.2000 and the original letters were neither found in the BSA office nor in the institutions, where the said teachers have joined. As per information received through right to information, no such letters have been dispatched from the office of BSA. The alleged photocopy of order dated 09.10.2000 was sent to FSL but it was returned back with remark that on the basis of photocopy, the signatures cannot be compared. Learned counsel submitted that the allegation that the applicant, being Senior Assistant, was involved in issuance of alleged forged transfer/absorption order is wholly false and there is no reliable evidence against him. The Investigating Officer has conducted the investigation in a mechanical manner and charge-sheet has been filed and cognizance has been taken by a format type order. No specific role of the applicant has been shown. Referring to the above-stated facts, it was submitted that the impugned proceedings are nothing but abuse of the process of court and thus liable to be set aside.

4. Learned A.G.A. has opposed the application and argued that in view of allegations made in the first information report and material collected during investigation, a prima facie case is made out against applicant and on due perusal of record, the competent authority has granted sanction for prosecution of applicant. It was submitted that the then BSA M.P .Singh Kushwaha, who has prepared a list for transfer of 26 assistant teachers and by violating the directions, a proforma of transfer order was prepared and thereby several persons, who were not working as assistant teachers were also transferred by way of cheating and forgery in order to getting their absorption as assistant teachers. On the direction of Deep Chand, the then BSA, Bareilly, Raj Pal Singh, Anoop Kumar and Om Prakash, assistant teachers were transferred. Referring to the facts of the matter, it was submitted that applicant and co-accused persons were involved in conspiracy and forged transfer orders were prepared. Referring to the allegations, levelled in the first information report and the material collected during investigation, it was submitted that a prima facie case is made out against the applicant.

5. I have considered the rival submissions and perused the record.

6. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. It is well settled that High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding unless the allegations contained, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. The inherent powers for the purpose of quashing proceedings have to be exercised very sparingly. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed.

7. In the instant matter, perusal of record shows that the applicant was posted as Senior Assistant/ Head clerk in the office of BSA, Bareilly. It was revealed that by order dated 06.09.2001 five teachers were shown transferred and they joined in the respective primary schools but three of them namely Smt Anju Gupta, Ram Prakah Gangwar and Ashfaq were not working as teachers in the schools from which they were shown transferred and thus, by way of said transfer order some outsiders were illegally joined as teachers. Similarly more persons were also found working teachers in Government primary schools on the basis of forged transfer order dated 06.09.2001. During inquiry it was further found that three persons namely Rajpal, Anup Kumar and Om Prakash have joined as Assistant teachers in primary school on the basis of the forged transfer order dated 09.10.2000, while they were never working as teachers in the school from which they were shown transferred. As per prosecution version, in December, 2001, the A.B.S.A. has sent a letter to the Finance Officer to release salary of alleged three persons, namely, Rajpal, Anup Kumar and Om Prakash, who working as teachers on the basis of forged transfer order. The said letter issued by the A.B.S.A. also bears signature of applicant. The defence of applicant that he has neither signed the said forged orders nor he was involved in issuance of the same, requires determination on question of fact, which can only be done during trial after evidence was led. Merely because the original orders dated 09.10.2000 could not be seized or that FSL could not express any opinion regarding signatures on the alleged forged order due non-availabilty of original forged order, it can not be a ground to quash the proceedings. Evidence Act provides certain contingencies, where secondary evidence is admissible. As per prosecution version, the applicant was involved in conspiracy of alleged forgery and issuance of said forged transfer orders by which certain persons, who were not working as teachers, were posted as teachers and the letter sent to the Finance Officer for release of salary of three such teachers. So far the grant of sanction of prosecution is concerned, no material illegally or perversity could be shown in the impugned order.

8. At this stage it would be pertinent to refer case of State of Orissa v. Saroj Kumar Sahoo, wherein Apex Court has observed that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus:

"11. ... 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."

9. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre the Court held as under:

"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

10. The ratio of the case of Madhavrao Jiwajirao Scindia is applicable in cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes, etc. etc. In proceedings under section 482 CrPC it is not desirable for the Court to hold a full-fledged inquiry or to appreciate the evidence, collected by the investigating agency to find out whether the case would end in conviction or acquittal. The Supreme Court in the case of M. Srikanth v. State of Telangana, reported in (2019) 10 SCC 373 has held that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings. The Supreme Court in the case of M.N. Ojha v. Alok Kumar Srivastav reported in (2009) 9 SCC 682 has held that interference by the High Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.

11. The Supreme Court in the case of CBI v. Arvind Khanna reported in (2019) 10 SCC 686 has held as under :

''17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under 29 Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.

18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for.''

12. Thus, it is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes do not the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is equally settled that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of first information report or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In case of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Section 482 Cr.P.C.

13. In the instant case in view of allegations levelled against the applicant and perusing the material collected during investigation, it can not be said that no prima facie is made out against the applicant. The submissions raised by learned counsel for the applicants call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted in this case.

14. In view of aforesaid, no case for quashing of impugned proceedings/charge-sheet or cognizance/summoning order is made out. The instant application under Section 482 Cr.P.C. lacks merit, and thus, liable to be dismissed. However, the applicants would be at liberty to move an application for discharge at appropriate stage in accordance with law and to raise his pleas before the trial Court.

15. With aforesaid observations, the application under Section 482 CrPC, is dismissed.

Order Date :- 13.10.2023

Anand