Madhya Pradesh High Court
Sheikh Sharif vs The State Of Madhya Pradesh on 19 December, 2023
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
MISC.CRIMINAL CASE No.20229 of 2016
Between:-
1. SMT. NIRMALA KHARE W/O SHRI
P.D.KHARE, AGED ABOUT 60 YEARS R/O
VILLAGE MAWAI TEHSIL AND DISTRICT
TIKAMGARH (M.P.).
2. AKHILESH AHIRWAR S/O SHRI MANOHAR
AHIRWAR, ADULT, R/O VILLAGE DIGODA,
TEHSIL AND DISTRICT TIKAMGARH (M.P.).
3. AWADH BIHARI KHARE S/O MUNNALAL
KHARE, ADULT, R/O LIG- 16 BEHIND
CIRCUIT HOUSE- CHHATARPUR (M.P.).
.....PETITIONERS
(BY SHRI R.K.VERMA- SENIOR ADVOCATE WITH SHRI
RAMMURTI TIWARI - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI DISTRICT
TIKAMGARH (M.P.).
2. PRATIMA CHATURVEDI W/O SHRI ANIL
CHATURVEDI, ADULT R/O VILLAGE POST
TEHERKA TEHSIL AND DISTRICT
TIKAMGARH (M.P.).
......RESPONDENTS
(BY SHRI PRADEEP GUPTA -GOVT. ADVOCATE FOR
RESPONDENT NO.1 AND NONE FOR RESPONDENT NO.2)
2
MISC.CRIMINAL CASE No.3076 of 2010
Between:-
1. PUSHPENDRA SINGH (MEMBER) AGED
ABOUT 35 YEARS S/O SHRI KARAN
SINGH R/O VILLAGE AND POST DERI
POLICE STATION KUDILA TAHSIL AND
DISTRICT TIKAMGARH (M.P.).
2. ANIL SINGH GOUR S/O SHRI H.S.GOUR
AGED ABOUT 57 YEARS, D.E.O., R/O
VILLAGE F-108/21, SHIVAJI NAGAR,
NEAR STOP NO.5, BHOPAL (M.P.).
3. BABULAL RAI S/O SHRI GHASI RAM
RAI, AGED ABOUT 51 YEARS
PRESIDENT R/O RAI BHAWAN, NEAR
OLD POLICE STATION NIWARDI,
DISTRICT TIKAMGARH (M.P.).
.....PETITIONERS
(BY SHRI LALJI KUSHWAHA - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI DISTRICT
TIKAMGARH (M.P.).
......RESPONDENT
(BY SHRI PRADEEP GUPTA -GOVT. ADVOCATE)
MISC.CRIMINAL CASE No.6710 of 2010
Between:-
SHEIKH SHARIF S/O SHRI REHMAN KHAN,
AGED ABOUT 35 YEARS R/O SHEIKH
MOHALLA TIKAMGARH DISTRICT
TIKAMGARH (M.P.).
.....PETITIONER
3
(BY SHRI LALJI KUSHWAHA - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI DISTRICT
TIKAMGARH (M.P.).
......RESPONDENT
(BY SHRI PRADEEP GUPTA -GOVT. ADVOCATE)
-------------------------------------------------------------------------------------------------------
RESERVED ON : 29.11.2023
PRONOUNCED ON : 19.12.2023
__________________________________________________________
These misc.criminal case coming on for hearing this day, Hon'ble
Shri Justice Dinesh Kumar Paliwal, passed the following:
ORDER
Petitioners have filed this petition under Section 482 of Cr.P.C., 1973
(hereinafter referred to as "the Code") to quash the charge sheet and entire
proceedings initiated pursuant to F.I.R No.391/2009 dated 14.07.2009 by
P.S.Kotwali District Tikamgarh against the petitioners.
2. The factual matrix of the case in nutshell is that petitioner Smt. Nirmala
Khare and Shri Pushpendra Singh are the Members of Jila Panchayat, petitioner
Anil Singh Gour is the District Education Officer, petitioner Babulal Rai is the
President of Jila Panchayat. Petitioners, namely, Smt. Nirmala Khare,
Pushpendra Singh, Anil Singh Gour, Akhilesh Ahirwar and Awadh Bihari
Khare were the Members of the appellate committee constituted under Rule
2(b), Column-6 of Schedule-II of Madhya Pradesh Samvida Shala Shikshak
(Employment and Conditions of Contract) Rules, 2005 (hereinafter referred to
as the "Rules of 2005"). A copy of Rules of 2005 is filed as Annexure A/1.
3. As for as, petitioner Sheikh Sharief is concerned, he is Assistant Teacher
posted in Govt. High School Ajnor District Tikamgarh. As per prosecution
allegations, he was assigned the work of scrutinizing the applications of
candidates alongwith other co-accused persons. He has sought quashment of
the charge sheet on the ground that only the work of making bundles of the
application forms of the candidates for the post of Samvida Shala Shikshak
Grade-II for which applications were invited was assigned to him. As he was
not entrusted the duty of scrutinizing the applications, the F.I.R and
proceedings pursuant to that against him be quashed.
4. It is submitted that two vacancies of Samvida Shala Shikshak-II in Sanskrit
subject were advertised inviting the applications of the candidates out of which
one vacancy was reserved for women. Complainant Pratima Chaturvedi had
submitted her form but in the provisional list of selected candidates, she was
shown to have secured low position in the merit list (Annexure A/2). In the said
provisional merit list, "zero" marks was shown against the column of
educational qualification. She had moved objections against the provisional
merit list before the appellate committee of which petitioners were also the
Members. The committee found her grievance and complaint justified and
directed the selection committee to appoint her by creating an additional post
vide order dated 25.02.2009 (Annex.A/3). Later, a complaint (Annexure A/4)
was filed by her before the Chief Minister to the effect that she had submitted
the mark sheet of B.Ed which has been removed in order to exclude her from
the merit list. A query was made by the office of Chief Minister from the
Collector and the Collector submitted reply Annex.A/5. On the basis of
instructions given by the office of Chief Minister, the C.E.O. of Jila Panchayat,
Tikamgarh wrote a letter on behalf of Collector, Tikamgarh to the Project
Oficer District Panchayat Tikamgarh on 13.07.2008 which is Annex.A/6. On
the basis of directions by the Collector, same C.E.O. Pyush Mishra conducted
the inquiry and lodged written complaint on the basis of which the F.I.R
No.391/2009 in P.S. Kotwali District Tikamgarh was registered.
5. In the F.I.R it is mentioned that for recruitment of Samvida Shala Shikshak
Grade-II in District Panchayat Tikamgarh, 44 posts were advertised. The
advertisement was published on 15.01.2009 in Dainik Bhaskar, Sagar, Dainik
Jagran, Bhopal and Raj Express, Bhopal. Applications were received till
24.01.2009. Smt. Pratima Chaturvedi R/o village Teharka Tehsil Niwari
district Tikamgarh had submitted an application alongwith educational
qualification document on 19.01.2009. The District Education Officer (D.E.O.)
Tikamgarh had assigned the work of receiving the applications to Shri
Brijendra Kumar Jain, Asst. Grade-II, Vikas Khare Block Education Officer
(B.E.O.) Baldevgarh and Shri Dilip Kumar Jain, Teacher, Govt. Middle School,
Radhapur Tehsil Tikamgarh. The D.E.O. Tikamgarh had also deputed other
Officers and Employees of the Education Department for verification of the
documents and making entries of the applications in the computer. After
verification of the computerized merit list, final list was published. Claims and
objections were invited. On 15.02.2009, Smt. Pratima Chaturvedi filed
objections in writing alleging that her B.Ed mark sheet has been removed from
her application and second page of her application has been changed as
application does not bear her signature. After hearing objections, the appellate
committee passed an order, resultantly, Smt. Pratima Chaturvedi was appointed
as Samvida Shala Shikshak Grade-I in Sanskrit subject. Smt. Pratima
Chaturvedi had made a complaint in Mukhyamantri Samadhan Online. Her
complaint was heard on 07.07.2009 and after inquiry, it was found that
application of Pratima Chaturvedi was received by Dilip Kumar Jain as he had
given acknowledgement for the same. The application was examined by
Brijendra Kumar Jain. Prima facie, it was found that aforesaid Dilip Kumar
Jain and Brijendra Kumar Jain are responsible for removing her B.Ed mark
sheet from the application and not properly examining her application. They
have done aforesaid act maliciously and intentionally. On the basis of written
complaint. F.I.R was registered. Again on 14.07.2009, another written
application was forwarded to office in which it was alleged that appellate
committee has committed error in deciding the objections of Smt. .Pratima
Chaturvedi due to which she was deprived from appointment. Hence, members
of appellate committee are also responsible. On the basis of above, F.I.R was
registered at Crime No.391/2009 and after investigation charge sheet has been
filed against the petitioners herein alongwith others for commission of offence
under section 420,34, 467,468 and 210-B of IPC.
6. It is undisputed that all the petitioners, except Sheikh Sharif, were
members of the appellate committee appointed under the Rules of 2005.
7. Learned Senior counsel for the petitioners has submitted that all the
petitioners except Sheikh Sharif were members of the appellate committee.
List of candidates were placed before them after examination and scrutiny of
candidates forms by the office. They had no knowledge about removing of the
mark sheet of the complainant Smt. Pratima Chaturvedi by the employees who
were assigned the work of scrutinizing the applications from her application
form. It is submitted that their functions and jurisdiction was limited to the
extent of deciding the objections and directing the selection committee to take
necessary action. It is further submitted that appellate committee of which
petitioners were members decided the objections under Rule 11 of the Rules of
2005 in favour of the complainant Pratima Chaturvedi by order dated
25.10.2009 but a criminal case was registered against them and charge sheet
has been filed. Learned counsel has drawn my attention towards the statement
of Pratima Chaturvedi recorded under section 161 of Cr.P.C in which she has
not stated even an iota of word against the appellate committee. On the
contrary, she has stated that appellate committee after going through her B.Ed
mark sheet had directed selection committee to give 20 marks to her. It is
contended that committee had nothing to do with the commission of the alleged
offence. There is no evidence against them. Some of the petitioners are elected
members of Jila Panchayat and they come within the category of public servant
and to prosecute them sanction under section 197 of Cr.P.C. is mandatory.
Without getting any sanction from competent authority to prosecute them, no
action can be initiated against them. As they had worked in discharge of their
official duties, no case is made out for commission of aforesaid offence.
Therefore, learned senior counsel has prayed for quashment of the F.I.R and the
proceedings.
8. On the other hand, learned counsel for the State has submitted that after
investigation charge sheet has already been filed and in S.T.No.208/2019 (State
of M.P. Vs. Brijnandan Yadav and others) proceedings are pending before IInd
Addl. Sessions Judge to the court of Ist Addl. Sessions Judge, Tikamgarh.
However, it is fairly admitted by learned counsel for the State that except
petitioner Sheikh Sharif, all other petitioners were members of the appellate
committee constituted under the Rules of 2005. It is submitted that petitioner
Sheikh Sharif was a Govt. Teacher and he was assigned the work of
scrutinizing the applications. Therefore, his liability can be fixed only after
recording of evidence of witnesses. It is submitted that as far as other six
petitioners are concerned, the trial has already commenced, therefore, at this
stage it would not be proper to interfere in the matter and quash the F.I.R. It is
further submitted that it is settled principle of law that while deciding a petition
under section 482 of Cr.P.C, evidence cannot be appreciated as it is for the trial
court to appreciate the evidence when ever prima facie evidence is available on
record. It is not proper for the High Court to quash the complaint/ F.I.R under
section 482 of Cr.P.C.
9. In this case, the main contention of learned Senior counsel for the
petitioners, except Sheikh Sharif, is that it is a case where members of the
appellate committee have been made accused without any evidence against
them as petitioners neither scrutinized the applications of the candidates nor
they had any knowledge about removal of the mark sheet attached with the
application of complainant Pratima Chaturvedi. It is submitted that present
petitioners have been implicated only being members of the appellate
committee who relied on the documents placed on record without any
verification on the assumption that applications have been properly scrutinized
and actual position has been placed before them. It is submitted that if the
employees who were assigned with the work of receiving and scrutinizing the
applications have committed any irregularity or in any manner removed the
mark sheet or any page of the application form submitted by complainant
Pratima Chaturvedi, the members of the appellate committee cannot be
implicated for commission of the offence under section 420,467 and 468 of
IPC. It is further submitted that even if entire allegations mentioned in the
F.I.R and charge sheet are taken as true even then no ingredient of criminal
offence is made out against them.
10. I have heard learned counsel for the parties at length, perused the F.I.R/
charge sheet and other material on record.
11. Having perused the relevant facts and hearing the contentions made by
learned counsel for the parties, I am of the considered view that following issue
requires determination in the instant case :-
"Whether the High Court to prevent the abuse of
process of court can exercise its inherent power under
section 482 of Cr.P.C and can quash the proceedings even
after its committal to the court of Session and framing of
charge if it comes to a conclusion that such proceeding is
frivolous or vexatious ?"
12. Hon'ble Apex Court in Prashant Bharti vs. State of (NCT of Delhi)
(2013) 9 SCC 293 has observed that exercising the power provided under
Section 482 of Cr.P.C. for quashing the proceeding, the same parameters would
be applicable even at the later stage, which are available at the initial stage like
before commencement of actual trial, at the stage of issuing process or at the
stage of committal. This Court is aware of the fact that exercise of inherent
power provided under Section 482 of Cr.P.C. the High Court would not
ordinarily embark upon an inquiry to ascertain whether the evidence in
question is reliable or not and inherent jurisdiction has to be exercised
sparingly and carefully with caution, but at the same time, Section 482
empowers the High Court to prevent the abuse of process of Court.
13. Hon'ble Supreme Court in the case of Mahmood Ali and ors. vs. State
of U.P. and ors. passed in Criminal Appeal No.2341 of 2023 arising out of
S.L.P. (Criminal) No.12459 of 2022 judgment dated 08.08.2023 observed in
para 12 as under:-
"12. At this stage, we would like to observe something
important. Whenever an accused comes before the Court
invoking either the inherent powers under Section 482 of
the Code of Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution to get the
FIR or the criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the Court
owes a duty to look into the FIR with care and a little more
closely. We say so because once the complainant decides to
proceed against the accused with an ulterior motive for
wreaking personal vengeance, etc., then he would ensure
that the FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure that
the averments made in the FIR/complaint are such that
they disclose the necessary ingredients to constitute the
alleged offence. Therefore, it will not be just enough for the
Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the alleged
offence are disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look into many other
attending circumstances emerging from the record of the
case over and above the averments and, if need be, with
due care and circumspection try to read in between the
lines. The Court while exercising its jurisdiction under
Section 482 of the CrPC or Article 226 of the Constitution
need not restrict itself only to the stage of a case but is
empowered to take into account the overall circumstances
leading to the initiation/registration of the case as well as
the materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have been
registered over a period of time. It is in the background of
such circumstances the registration of multiple FIRs
assumes importance, thereby attracting the issue of
wreaking vengeance out of private or personal grudge as
alleged."
14. In Prashant Bharti's case (supra), Hon'ble Supreme Court while taking
note of the law laid down in Rajeev Thapar vs. Madan Lal Kapoor; (2013) 3
SCC 330 has observed as under:-
"22. The proposition of law, pertaining to quashing of
criminal proceedings, initiated against an accused by a
High Court under Section 482 of the Code of Criminal
Procedure (hereinafter referred to as "the Cr.P.C.") has
been dealt with by this Court in Rajiv Thapar & Ors. vs.
Madan Lal Kapoor (supra) wherein this Court inter alia
held as under:-
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?
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."
15. In Satish Mehra (Supra) Hon'ble Supreme Court observed in para 15 as
under:-
"15. The power to interdict a proceeding either at the
threshold or at an intermediate stage of the trial is inherent
in a High Court on the broad principle that in case the
allegations made in the FIR or the criminal complaint, as
may be, prima facie do not disclose a triable offence there
can be reason as to why the accused should be made to
suffer the agony of a legal proceeding that more often than
not gets protracted. A prosecution which is bound to
become lame or a sham ought to interdicted in the interest
of justice as continuance thereof will amount to an abuse of
the process of the law. This is the core basis on which the
power to interfere with a pending criminal proceeding has
been recognized to be inherent in every High Court. The
power, though available, being extra ordinary in nature has
to be exercised sparingly and only if the attending facts and
circumstances satisfies the narrow test indicated above,
namely, that even accepting all the allegations levelled by
the prosecution, no offence is disclosed. However, if so
warranted, such power would be available for exercise not
only at the threshold of a criminal proceeding but also at a
relatively advanced stage thereof, namely, after framing of
the charge against the accused. In fact the power to quash
a proceeding after framing of charge would appear to be
somewhat wider as, at that stage, the materials revealed by
the investigation carried out usually comes on record and
such materials can be looked into, not for the purpose of
determining the guilt or innocence of the accused but for
the purpose of drawing satisfaction that such materials,
even if accepted in its entirety, do not, in any manner,
disclose the commission of the offence alleged against the
accused."
16. In State of Haryana and others vs. Bhajan Lal and others 1992 SCC
(Cri) 426 Hon'ble Supreme Court identified the following cases in which
FIR/complaint can be quashed:-
"102. (1) Where the allegations made in the first
information report or the complaint, even if they are 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.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just, conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the Act concerned (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is a
specific provision in the Code or the Act concerned,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge."
17. The above observations by the Hon'ble Apex Court makes it clear that
the High Court while exercising power under section 482 of Cr.P.C. can
consider the facts and material of the case and it can consider whether it is
expedient and in the interest of justice to permit the prosecution to continue or
the continuance of prosecution would be abuse of process of Court. It is clear
that if High Court comes to a conclusion that where the allegations made in the
FIR or complaint are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused. Further where a criminal
proceeding is manifestly attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal grudge, the
power can be exercised and FIR can be quashed.
18. In the light of above discussion and settled position of law arguments
advanced by learned counsel for the respondent that material on record cannot
be appreciated in a petition under Section 482 of Cr.P.C. after framing of
charge being untenable is repelled.
19. In this case it is undisputed that except petitioner Sheikh Sharif all other
petitioners were members of the appellate committee. The only allegation
against them is that they did not discharge their duties diligently and
overlooked the complaint made by Pratima Chaturvedi. Smt. Pratima
Chaturvedi in her statement recorded under section 161 Cr.P.C has stated that
when objections were invited she had filed the objections but even after hearing
objections, the Chief Executive Officer, Tikamgarh did not include her B.Ed
mark sheet in his application. She has stated that when she presented the
acknowledgement and receipt to the appellate committee, the appellate
committee after pursuing the mark sheet had asked to give her 20 marks for
B.Ed. Thereafter on 12.06.2009, she was called for counselling. The aforesaid
statement makes it clear that the entire game was played by the C.E.O and the
employees who were assigned with the work of scrutinizing the applications.
Her application was received by Dilip Kumar Jain and examined by Brijendra
Kumar Jain and the same is apparent from letter dated 13.07.2009 written by
the Project Officer, District Panchayat, Tikamgarh to S.H.O of P.S. Kotwali,
Tikamgarh. In the application dated 14.07.2009 sent to S.H.O Kotwali,
Tikamgarh, the Project Officer has mentioned that appellate committee had not
decided the objections of Smt. Pratima Chaturvedi as per rules and has
committed error in taking the decision due to which she was deprived of
appointment. Even if for the sake of argument it is assumed that appellate
committee had committed error and had not duly discharge its duties even then
they cannot be prosecuted for the offence without prior permission of the
competent authority as appellate committee was constituted under Rule 11 of
the Rules of 2005. From the statement of Pratima Chaturvedi recorded under
section 161 of Cr.P.C and from the statement of Pyush Mishra, Project Officer,
it is apparent that the appellate committee had directed to give 20 marks to
Pratima Chaturvedi for B.Ed mark sheet. On meticulous examination of
material on record, it is apparent that B.Ed mark sheet and second page of the
application form submitted by Pratima Chaturvedi was removed from her
application. It is noteworthy that work of receiving and scrutinizing the
applications was entrusted to Dilip Kumar Jain and Brijendra Kumar Jain and
others and not to the members of the appellate committee. In such
circumstances members of the appellate committee cannot be held liable for
commission of the offence in collusion with the other employees. The work
assigned to members of the committee was upto deciding the claims and
objections only. Therefore, if any mark sheet was removed or any page of
application form was changed by any person who was entrusted with the
aforesaid work, the members of the appellate committee cannot be held
responsible for the same.
20. Having going through the material on record, I am of the view that there
is no prima facie evidence on record on the basis of which petitioners may be
implicated or they may be charge sheeted for commission of crime. It is not
the case of the respondent/State that present petitioners, in any manner, were
entrusted with the work of receiving and scrutinizing the application forms or
they had removed the second page of the application form and B.Ed mark sheet
of Pratima Chaturvedi. It is worth mentioning that charge sheet has been filed
for commission of offence under section 420,34,467,468 and 120-B of IPC but
none of the ingredients necessary for aforesaid offence is made out as it is not
the case of the respondent/State that any of the documents were forged by
members of the appellate committee. Hence, the question of forging the
document and using such document for forgery and deceiving does not arise.
As there is no prima facie case that any false and forged document have been
made, in such circumstances, petitioners in no way be charge sheeted or
prosecuted for forging the document.
21. As application forms were neither received nor scrutinized by the
members of appellate committee, in such circumstances, they cannot be
prosecuted for offence of section 420 of IPC also. For an offence under section
420 of IPC, it is imperative on the part of the prosecution to prima facie
establish that there was intention on the part of the accused and for other to
cheat and sought to defraud the complainant right from the inception. As in
this case appellate committee had nothing to do with the application forms and
documents attached therewith and the list of forms of candidates was prepared
by the co-accused who were entrusted with the work of receiving, examining
and scrutinizing the applications/forms, the members of the appellate
committee cannot be prosecuted and no proceedings are permissible against
them in the eyes of law with regard to offence punishable under section 420,
34,467,468 and 120-B of IPC.
22. In the case of Munna Prasad Verma Vs. State of Uttar Pradesh-(2022)
10 SCC 169, in somewhat similar circumstances the Hon'ble Apex Court
observed as under :-
"7. After we have heard learned counsel for the parties and
having gone through the material on record with their
assistance, we are of the view that there is no prima facie
evidence on record which implicate the present appellants
directly/indirectly connected to the commission of crime. It
is not the case of the respondents that the present
appellants, in any manner, have facilitated Brijendra Nath
Mishra either in creating or in fabricating the alleged
forged degree of B.Ed for seeking compassionate
appointment.
8. The present appellants are implicated, being the
members of the Selection Committee, who relied on the
documents placed on record without any verification on the
assumption that the documents being genuine,
recommended his case for appointment and because they
are the members of the Selection Committee, that in itself
would not, in any manner, implicate them in the
commission of crime, in reference to which the learned
Magistrate has taken cognizance and issued summons
against them by an Order dated 4th August, 2009 in the
instant proceedings, which, in our view, would be nothing
but a clear abuse of the process of law.
9. Consequently, the appeals stand allowed and the
criminal proceedings arising from Case Crime No. 128 of
2002 qua the appellants are quashed and set aside."
23. Thus, after going through the F.I.R and the material available in charge
sheet, it cannot be said that on the basis of averments in the F.I.R and
allegations in the charge sheet any offence under section 420,34, 467,468 and
120-B of IPC is made out against the petitioners, namely, Smt. Nirmala Khare,
Akhilesh Ahirwar, Awadh Bihari Khare, Pushpendra Singh, Anil Singh Gour
and Babulal Rai who were members of the appellate committee.
24. As far as case of petitiner Sheikh Sharif is concerned, he was entrusted
with the work of scrutinizing and examining the application form with other
co-accused though his argument is that he was assigned with the work of
making bundles of the application forms of the candidates and not with the
work of scrutinizing and examining the application forms. Whether he was
assigned or associated with the work of examining the application form or not,
is a matter of evidence and no inference can be drawn at this stage. In the case
in hand, there is prima facie evidence that the second page of the application
alongwith B.Ed mark sheet of Pratima Chaturvedi was removed by the person
who was entrusted with the work of receiving and scruitinizing the application
forms. Therefore, as far as the case of petitioner Sheikh Sharif is concerned
that can be decided only after recording of evidence. Thus, his petition
(M.Cr.C.No.6710/2010) filed under section 482 Cr.P.C being shorn of maerits,
is dismissed.
25. In view of above presentation of facts and foregoing discussion, it is
found that no offence under section 420,467,468/34 and 120-B of IPC is made
out against the petitioners namely, Smt. Nirmala Khare, Akhilesh Ahirwar,
Awadh Bihari Khare, Pushpendra Singh, Anil Singh Gour and Babulal Rai.
Therefore, F.I.R.No.391/2009 dated 14.07.2009 under section 420,34,467,468
and 120-B of IPC and the entire proceedings initiated pursuant to charge sheet
filed by the P.S. Kotwali District Tikamgarh against the petitioners namely,
Smt. Nirmala Khare, Akhilesh Ahirwar, Awadh Bihari Khare, Pushpendra
Singh, Anil Singh Gour and Babulal Rai, are quashed and set aside. All interim
applicatins, if any, pending in the matter also stands disposed off.
26. Resultantly, M.Cr.C.Nos.20229/2016 and 3076/2010 filed by petitioners,
namely, Smt. Nirmala Khare, Akhilesh Ahirwar, Awadh Bihari Khare,
Pushpendra Singh, Anil Singh Gour and Babulal Rai are allowed, whereas
M.Cr.C.No.6710/2010 filed by petitioner Sheikh Sharif is dismissed.
27. However, it is made clear that the observations made in these petitions
are only for final disposal of these petition and learned trial court may not be
influenced by the observations made hereinabove and conclude the pending
trial against remaining accused on its own merits in accordance with law.
(DINESH KUMAR PALIWAL)
JUDGE
MKL
MANOJ KUMAR LALWANI
2023.12.20 15:00:59
+05'30'
