Madhya Pradesh High Court
Mohd. Raajik Ansari vs The State Of M.P. on 22 April, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 22nd OF APRIL, 2025
MISC. CRIMINAL CASE No. 51298 of 2022
MOHD. RAAJIK ANSARI
Versus
THE STATE OF M.P. AND OTHERS
Appearance:
Shri Vidya Shankar Mishra - Advocate for the petitioner.
Smt. Ranjana Agnihotri - Deputy Government Advocate with Ms. Shikha Singh
Baghel - Panel Lawyer for the State.
Reserved on : 07.04.2025
Pronounced on: 22.04.2025
ORDER
This petition, under section 482 of the Code of Criminal Procedure 1973,
has been filed to quash the FIR registered against petitioner at Crime
Number 239/ 2022 in Police Station, Kanhivada, district Seoni, for the
offence of Section 409 read with Section 34 IPC.
2. The facts, which are not challenged and are relevant for the decision of
this petition, are that petitioner was posted as Sachiv, Gram Panchayat,
Chhitapar, during the alleged period of offence i.e. 10.01.2020 to 07.03.2022
and a departmental enquiry was instituted against him; it is also not under
challenge that the transfer orders of petitioner dated 08.03.2019 and again of
26.06.2020 were challenged by him in Writ Petitions No.6173/2019 and
9318/2020 respectively. In first writ petition, interim relief was granted to the
petitioner by staying the impugned order and in second writ petition a
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direction was given to the respondents not to take any coercive action against
petitioner till next date of hearing. Subsequently, another Writ Petition
No.11144/2020 was filed by petitioner to challenge the transfer order
26.06.2020 and its operation was stayed by the court vide order dated
25.08.2020. Admittedly a notice dated 17.07.2020 was issued to the
petitioner for recovery of misappropriated amount of Rs.14,63,000/- and the
recovery proceeding initiated on the basis of this notice was stayed in Writ
Petition No.12175/2020 vide order dated 31.08.2020. Another Writ Petition
No.14577/2020 was preferred by petitioner to challenge his suspension order
passed by Chief Executive Officer, Zila Panchayat, Seoni, and also the order
directing Chief Executive Officer, Janpad Panchayat, Seoni, to initiate
criminal proceedings against the petitioner. Admittedly, Writ Petition
No.14577/2020 was later withdrawn. Besides the registration of FIR,
admittedly a departmental proceeding was simultaneously initiated against
the petitioner.
3. In addition to the facts narrated in the preceding paragraph, it is claimed
by petitioner that the action of respondent in initiating a criminal case against
petitioner is clearly in violation of principles of natural justice and it is
evident that respondents have taken steps to punish the petitioner at every
step since he did not adhere to their dictum issued under repeated transfer
orders and had approached the High Court for protection of his rights; in
Writ Petition No.9318/2020 vide order dated 15.07.2020 the counsel for
respondents was granted a week's time to obtain necessary instructions and
simultaneously not to take any coercive action against the petitioner till next
date of hearing; this order was in effect from 15.07.2020 to 06.08.2020 but
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in the meantime, respondents issued show cause notice for recovery under
the provision of Section 92 of the Panchayat Raj Adhiniyam, 1993 (for short,
"Adhiniyam"); the respondents were continuously passing adverse orders
against petitioner; their malafide intent is evident from the fact that the pre-
requisites provided under Section 89 of the Adhiniyam were not properly
followed before initiating the proceedings of Section 92 of that Adhiniyam;
with the same malafide intent, they have initiated the criminal proceeding of
Section 409 IPC against the petitioner; the entire departmental work was
carried out by petitioner with due approval of higher officials and no
financial irregularity is involved in this developmental work. A request has,
therefore, been made to quash the FIR registered against the petitioner.
4. State has opposed the petition claiming that institution of departmental
proceedings does not bar the initiation of criminal proceedings and the two
can simultaneously go along. It is stated that petitioner was involved, with
dishonest intention, in criminal breach of trust, regarding the public money
entrusted with him, therefore the FIR registered against petitioner should not
be quashed and the investigation as well as the trial, if necessary, should
proceed to find out the truth.
5. Counsel for both the parties have been heard and the record has been
perused.
6. While considering the scope of exercise of powers, the High Court under
Section 482 Cr.P.C. to quash the FIR, the parameters for exercise of such
power are required to be considered. In the case of R.P. Kapoor v. State of
Punjab, AIR 1960 SC 862 , a five-judges-bench of Apex Court laid down
some conditions where the exercise of Section 482 Cr.P.C. for quashing the
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FIR was held to be justified and they are:
(i) where it manifestly appears that there is a legal bar against the
institution or continuance of the criminal proceeding in respect of
the offence alleged; for instance, absence of requisite sanction,
etc.;
(ii) where the allegations in the first information report even if
they are taken at their face value and accepted in their entirety, do
not constitute the offence alleged;
(iii) where the allegations made against the accused person do
constitute an offence alleged but there is either no legal evidence
adduced in support of the case or the evidence adduced clearly or
manifestly fails to prove the charge. In this third category of cases
falls a case where there is no legal evidence or where there is
evidence but it is manifestly and clearly inconsistent with the
accusation made in the case.
7. If we apply the facts of this present case to parameters laid down by the
five- judges-bench in the case of R.P. Kapoor (supra), it can be easily made
out that manifestly there is no legal bar regarding the institution of criminal
proceedings against the petitioner for the offence of Section 409 IPC. Under
second category it is to be examined whether the allegations mentioned in
the FIR, if considered at their face value, would constitute an offence. The
FIR under challenge makes an allegation that petitioner was working on the
post of Secretary, Gram Panchayat, Chhitapar, and during his tenure different
development works, including road construction, boundary construction, etc.
were completed. These construction works were evaluated by the technical
team and it was found that there was embezzlement of public money. FIR
further discloses that a departmental enquiry was instituted against the
petitioner and for committing criminal breach of trust regarding an amount of
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Rs.4,38,720/-, this FIR has been lodged. The allegations made about the post
held by the petitioner and his tenure are not being challenged here. Institution
of a departmental enquiry is also not denied here. What has been argued here
is that with a malafide intention these proceedings are being initiated against
the petitioner but on the strength of this argument it cannot be pleaded that
FIR does not make out the facts which, if accepted at their face value and in
their entirety, will not constitute the offence alleged. This court cannot
undertake the task of appreciating the evidence at this stage and has no
reason to conclude that merely by looking at the FIR no offence is made out.
8. In the third category fall the cases where there is no legal evidence in
support of the case or where the evidence is manifestly and clearly
inconsistent with the accusation. The question arises whether on the facts
raised and argued here, the petitioner has been able to show that there is no
legal evidence against the accusation made against him or the evidence is so
inconsistent against the accusation that in all possibilities it will not be
accepted. The petitioner in this case has filed documents showing that he was
being repeatedly transferred and was getting stay from the High Court and
these facts themselves establish that official agency was taking action
allegedly against the interest of petitioner. Be that as it may be, frequent
transfer orders of petitioner merely reflect that his higher authorities were
assigning him official task elsewhere or in addition to his already existing
duties and these transfer orders do not have any reflection on the allegations
about defalcation of public money alleged to have been committed by
petitioner.
9. The petitioner has grievance that he was given notice under section 92 of
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the Adhiniyam without following the procedure prescribed in that
Adhiniyam but any violation of the provisions of that Adhiniyam, if actually
made, will not have any bearing on the institution of criminal proceedings
against the petitioner for an offence of Section 409 IPC. There is no legal
requirement to follow the provisions of said Adhiniyam before getting the
FIR registered for the offence of Section 409 IPC. In Writ Petition No.
12175/2020 vide order dated 31.08.2020 the court, as an interim measure,
directed that the operation of order dated 17.08.2020 in respect of recovery
shall remain stayed till the next date of hearing. This order makes no
observation or direction regarding the institution of FIR and consequential
criminal proceedings.
10. From the aforesaid discussion of facts, it is evident that the petitioner
has not been able to establish even prima facie that the FIR registered against
him is not supported by any legal evidence or the evidence available
regarding the facts of the case is inconsistent with the accusation made
against him. The FIR itself reveals that it is based upon the report of a
technical team. Perusal of case diary reveals that allegations made against the
petitioner are not devoid of any legal evidence, therefore the request for
quashing the FIR does not fall even in the last category of cases discussed
above.
11. From the arguments submitted by the counsel for petitioner, it appears
that he entertains a misconceived notion that if a departmental proceeding is
instituted against a person then on same facts a criminal proceeding cannot
be initiated against him. The judgment of full bench of Honorable Apex
Court in Depot Manager, A.P. State Road Transport Corporation v. Mohd.
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Yousuf Miya and others (1997) 2 SCC 699 has laid down that there is no bar
to proceed simultaneously with the department enquiry and the trial of a
criminal case. Again, in the case of Captain M. Paul Anthony v. Bharat Gold
Mines Limited and another (1999) 3 SCC 679 the same principle was
reiterated. It may be mentioned here that the charges framed under Annexure
P-14 against petitioner are not entirely identical to the allegations made in
the FIR (Annexure P-19). It was, though, strongly argued by the counsel for
petitioner that the amount of defalcated sum was changing from documents
to documents and place to place, but here we are concerned only about the
allegations made in the FIR and any inconsistency shown in the amount
given in FIR as against the documents of recovery proceedings or
departmental proceedings cannot assist the petitioner for seeking the
quashment of FIR on its basis. Further, at this stage, Court cannot embark
upon the inquiry whether the evidence in question is reliable or not as it is
the function of the trial court and ordinarily it is not open to any party to
invoke the High Court's inherent jurisdiction and contend that on a
reasonable appreciation of evidence the accusation made against the
petitioner would not be sustained.
12. It can't be denied that the powers conferred under Section 482 Cr.P.C.
do not empower the High Court to use the jurisdiction arbitrarily or
according to whims or caprice. Discussing this scope of powers under
Section 482 Cr.P.C. the Apex Court in the case of State of Telangana v.
Habib Abdullah Jeelani and others (2017) 2 SCC 779 has laid down that this
power is to be exercised in a very sparing manner and not to be used to
choke or smother a legitimate prosecution.
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13. In the terms of aforesaid discussion on legal and factual aspects of the
case, this petition under Section 482 Cr.P.C., being totally devoid of merits,
fails and is dismissed accordingly .
(ANURADHA SHUKLA)
JUDGE
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