Deep Chand vs State Of U.P. .And Another
2023 Latest Caselaw 28484 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. - 17022 of 2023
 
Applicant :- Deep Chand
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Virendra Singh
 
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, including the charge-sheet and summoning order dated 09.01.2023, passed in of Criminal Case No. 4 of 2020, (State vs. Deep Chand), Case Crime No. 981 of 2013, under Sections 419, 420, 467, 468, 471, 120-B IPC and Section 13(1)(d) r/w 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 in the first information report against the applicant, are wholly false and that no prime case is made out against applicant and that the impugned charge-sheet and proceedings are nothing but abuse of the process of law. The applicant was appointed as Basic Shiksha Adhikari, Bareilly (hereinafter referred as 'BSA'), in January, 1998 and later on by order dated 05.10.2000 he was transferred from district Bareilly to Rampur and the applicant has handed over the charge of the office of BSA, Bareilly on 10.10.2000 to Sri M.P. Singh. A complaint was made to the District Magistrate, Bareilly in the year 2001 that Madan Pal Singh Kushwaha, BSA, Bareilly has passed an order of transfer/absorption of some Assistant teachers in primary schools, whereas, said teachers were never appointed as an Assistant teachers and in the name of transfer, they were given posting as assistant teachers. In inquiry conducted by Regional Assistant Director, Bareilly, it was found that on 06.09.2001 the BSA, Bareilly has passed an order for five Assistant teachers. The Prati Up Vidhyalaya Nirikshak has not given permission for their joining in the schools, where they were posted but they have signed on attendance register in December, 2001 and thereafter they left the institutions. The District Magistrate, Bareilly has sent a letter to the Secretary, Basic Shiksha, State of U.P. stating that transfer orders of five Assistant teachers were issued, whereas, they were not working in any institution. Learned counsel has referred the sequence of events of the matter, as mentioned in the affidavit filed in support of the application under section 482 CrPC, and submitted that applicant has no role in the issuance of alleged transfer order or in any cheating or forgery. Learned counsel submitted that when the applicant has joined as BSA, Bareilly on 08.01.1998, at that time after selection, a list of about 200 Assistant teachers was being processed. The applicant has got verification of BTC certificates of the candidates and that the certificates of 21 candidates were found forged and accordingly a first information report was lodged against 21 candidates on 07.04.1998 vide crime No. 321 of 1998 at police station Subhash Nagar, Bareilly. Learned counsel submitted that the allegation against applicant is that he has handed over the charge on 10.10.2000 and that in the three transfer letters in respect of transfer of one Rajpal, Anoop Kumar and Om Prakash, the name 'Deep Chand Prajapati' has been mentioned, whereas the applicant's name as Deep Chand Prajapati has never been mentioned in the authentic departmental record nor he has mentioned his name as Deep Chand Prajapati and in fact his name is spelt as Deep Chand only. No alleged original order dated 09.10.2000 has been seized and only on the basis of photocopy of the said letter, applicant has been falsely implicated in this case. In fact the alleged order dated 09.10.2000 was never passed or issued by the applicant. The original copy of said three letters were neither found in the office of BSA nor in the institution, where alleged assistant teachers have joined. No entry has been shown in the dispatch register of the office that said three letters have been dispatched from the office. 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 signature cannot be compared. There is no credible evidence that applicant has signed on the alleged letters dated 09.10.2000 in respect of transfer of said Rajpal, Anoop Kumar and Om Prakash. The Investigation Officer has not collected any such evidence. The departmental inquiry was also held against Madan Pal Singh Kushwaha, BSA, Bareilly and some other employees posted in the BSA office.

4. It is further submitted that when the Investigating Agency has approached the State Government for obtaining sanction for prosecution, after considering the entire material and the report of the Yogendra Nath Singh, Assistant Director Education, who conducted inquiry, did not find the involvement of applicant in alleged transfer order and as such the name of applicant was deleted from the list of accused persons for getting sanctioned from the State Government. Learned counsel submitted that after preparing charge-sheet, the Investigating Officer has moved before the State Government for grant of sanction for prosecution of some employees and assistant teachers. The Legal Remembrancer after considering the material collected by Investigating Officer excluded the name of applicant on the ground that no charge can be framed against him on the basis of photocopy of the letter dated 09.10.2000 and that even his signatures are not verified and the FSL report is also inconclusive. Despite all these facts the State Government has passed order of sanction on 11.09.2019, only on the basis of alleged forged transfer orders dated 15.08.2001 and 06.09.2001. The State Government illegally passed the order on 12.06.2020 by which the name of applicant was also included in the list of accused persons while granting permission for prosecution. It is further submitted that applicant has filed a writ petition challenging the order dated 11.09.2019 and this Court has stayed the operation of said order, however, later on the said petition has been dismissed.

5. Learned counsel has submitted that the entire proceedings, including charge-sheet and summoning order, against the applicant are illegal and without any basis and contrary to the material on record and that no prima facie case is made out against the applicant. Meanwhile applicant was also promoted to higher post. Referring to the above-stated facts, it was submitted that the impugned charge-sheet and proceedings are nothing but abuse of the process of court and thus liable to be set aside.

6. 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.

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

8. 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.

9. In the instant matter, perusal of record shows that the applicant was posted as BSA, Bareilly in January, 1998 and that by order 05.10.2000 he was transferred from district Bareilly to Rampur and the applicant has handed over the charge of the office of BSA, Bareilly on 10.10.2000 to Sri M.P. Singh. 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 as 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 schools from which they were shown transferred. These transfer orders dated 09.10.2000 are attributed to the applicant, who has signed and issued the said orders by his signature. On 09.10.2000, the applicant was working as BSA Bareilly. The case of the applicant is that he has never signed or issued the three orders in respect of transfer of alleged Rajpal, Anoop Kumar and Om Prakash. It was submitted that in the said orders name of BSA Bareilly has been shown as Deep Chand Prajapati, whereas the name of applicant is spelt as 'Deep Chand' only. Thus, whether the alleged forged letters were issued by the applicant or not, it is a question of fact, which can be determined on the basis of evidence during trial. Merely because the original orders dated 09.10.2000 could not be seized or that FSL could not express any opinion regarding signatures of the applicant 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 alleged forgery and issuance of said forged transfer orders dated 09.10.2000, by which certain persons, who were not working as teachers, were posted as teachers. So far the grant of sanction of prosecution is concerned, no material illegally or perversity could be shown in the impugned order.

10. 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."

11. 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."

12. 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. 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.

13. 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.''

14. 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 do not constitutes 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. 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.

15. In the instant case in view of allegations levelled against the applicant and perusing the material collected during investigation, it cannot be said that no prima facie is made out against the applicant. The submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately discerned and adjudicated 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.

16. 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 applicant 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.

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

Order Date :- 13.10.2023

Anand