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2006 DIGILAW 1088 (GAU)

Shiva Shankar Prasad Yadav v. Arya Samaj

2006-12-08

TINLIANTHANG VAIPHEI

body2006
JUDGMENT T. Vaiphei, J. 1. The criminal petition under Section 482 the Code of Criminal Procedure, 1973 has been filed by the petitioner to quash the criminal proceedings i.e. CR Case No. 560 (S) 2006 under Sections468/465/420/419/418 pending before the learned Chief Judicial Magistrate, Shillong. 2. I have heard Mr. A.H. Hazarika, the learned Counsel for the petitioner and Mr. M.F. Qureshi, the learned Counsel for the respondents. 3. The facts and circumstances leading to the filing of this criminal petition may be briefly noticed at the very outset. There is a registered Society under the name and style of Arya Samaj, Shillong, which is stated to be the sponsoring body of two schools namely, Arya Kannya Vidhalaya School, Laitumkhrah, Shillong and Arya Vidhalaya Secondary School, Jhalupara, Shillong. The case of the petitioner is that there is a dispute between the Arya Samaj and Vidhalaya, Shillong and Arya Samaj, G.S. Road, Shillong for the management of the Arya Vidhalaya Secondary School, Jhalupara, Shillong and he is the Secretary of the Arya Samaj Vidhalaya and is also functioning as the Headmaster of this school. The respondents No. 1 and 2 have filed the said criminal case against him whereupon a non-bailable warrant of arrest was issued by the learned Chief Judicial Magistrate, Shillong against him. According to the petitioner, the dispute concerning the Managing Committee of the Arya Vidhalaya Secondary School is pending before this Court for final disposal and this Court stayed the functioning of the Managing Committee of the School whereupon the Director of Higher and Technical Education, Meghalaya passed the order dated 21.9.2006 stating that since the Court case was pending before this Court for final disposal, the Managing Committee should not disturb the teaching and non-teaching staff of the school in respect of their services and emoluments as existed before the Managing Committing was constituted and should maintain status quo in respect of the overall management of the school till disposal of the case. The case of the petitioner is that the Arya Samaj thus has no power to interfere in the management of the school and has no locus standi to file the complaint case in question against the petitioner for misusing the school fund etc. The case of the petitioner is that the Arya Samaj thus has no power to interfere in the management of the school and has no locus standi to file the complaint case in question against the petitioner for misusing the school fund etc. It is the case of the petitioner that criminal proceeding being CR Case registered against him under Sections468/465/420/419/418 IPC was filed with an ulterior motive to prosecute and harass him and that the allegations contained in the complaint petition do not constitute any of the offences alleged against him. He, therefore, contends that the complaint case is liable to be quashed. 4. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been reiterated by the Apex Court from time to time, the latest being Indian Oil Corporation v. NEPC India Ltd. AIR 2006 SC 2780 . The principles, which are relevant for the present purpose are: The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceeding which are relevant for the present purpose are: (i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a details inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in details, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence : or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 5. Now the question to be determined by this Court is as to whether the allegations made in the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute criminal offences or make out the case alleged against the accused. At this stage, it is important to bear in mind that when exercising jurisdiction under Section 482 of the Code, this Court would not ordinarily embark upon inquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, the occasion would not be sustained. That is the function of the trial Court. Judicial process should not be an instrument of oppressive or, needless harassment. Courts should be circumspect and judicious in exercising discretion and should take taking all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument of vendetta in the hands of a private complainant. That is the function of the trial Court. Judicial process should not be an instrument of oppressive or, needless harassment. Courts should be circumspect and judicious in exercising discretion and should take taking all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument of vendetta in the hands of a private complainant. At the same time, this Section is not on instrument handed over to an accused to short circuit and bring about is sudden death. The petitioner has been alleged to have committed the offences punishable under Section468/465/420/419/418 IPC. The case of the respondents as projected in the complaint petition, is that the Arya Samaj is the sponsoring body of the two schools and that this Court by the judgment and order dated 24.11.2000 in WP (C) No. 72(SH)99 has already declared that the school namely Arya Kanya Vidyalaya, Laitumkhrah, Shillong (one of the two schools) is a minority institution and that the Managing Committee of the said school would be made only in terms of the Memorandum of Association. It is also stated by the respondents that the petitioner had also filed a Writ Petition i.e. WP (C) No. 2 (SH) 2002 before this Court praying for his appointment as a Secretary of Arya Vidyalaya Secondary School, Jhalupara, Shillong on the ground that the Arya Samaj and the respondents refused to accede his request for such appointment. 6. According to the respondents, the petitioner in that writ petition while impleading the Arya Samaj as a partly respondent had categorically admitted that the Arya Samaj was the only sponsoring body of the two schools. Even then, according to the respondents, during the pendency of the WP (C) No. 2 (SH) 2002, the petitioner filed another writ petition being WP (C) No. 10326/2003 before this Court by impersonating himself as Secretary of Arya Kanya Vidalaya High School when he was never appointed as the Secretary of the school and when one Shri B. B. Chetrri and Shri Omprakash Agarwal were admittedly the President and Secretary of the Managing Committee of the said school. The further case of the respondents is that the petitioner in collusion with one Shri B. P. Singh had submitted a false proposal vide letter dated 25.5.2003 to the Inspector of Schools, East Khasi Hills in which they for the first time claimed that the existence organization known as Arya Samaj and Vidalaya for the constitution of the Managing Committee of the Arya Vidyala High School, Jhalupara, Shillong and with one Shri S.C. Jha was induced as the Secretary of the said association. The said Jha, however, subsequently, kept away from the association by writing to the Inspector of Schools vide his letter dated 16.6.2003. It is also the case of the respondents that the petitioner while acting as Secretary of the Arya Samaj and Vidyala submitted false and fictitious proposal dated 11.12.2003 to the Inspector of Schools, East Khasi Hills for the constitution and approval of the Managing Committee of the said school knowing fully well that the Arya Samaj, G.S. Road, is the only sponsoring body of the said school as decided by this Court in WP (C) No. 72 (SH) 1999. The respondents also alleged in the complaint petition that the Inspector of Schools in the affidavit-in-opposition filed by him in WP (C) No. 166 (SH) 2002. 7. I have carefully gone through the order dated 12.3.2001 issued by the Inspector of Schools, East Khasi Hills District reconstituting the Managing Committee of the Arya Kanya Vidyalaya High School, Laitumkhrah, Shillong which is at Annexure 5 to the complaint petition. A comparative reading of the aforesaid three documents will prima facie show that the petitioner for the first time disputed that the Arya Samaj is the sponsoring body of the school is question only in May, 2003 vide Annexure 6 and asserted that the school in question was run by the Arya Samaj and Vidyalaya. Even in the writ petition filed by him in 2002, he was alleged to have admitted that both the schools were sponsored by the Arya Samaj, G.S. Road, Shillong. As noted earlier, it was only in May, 2003 that a parallel claim was alleged to have been made by the petitioner that the school in question has been run by the organization known as Arya Samaj and Vidyalaya. As noted earlier, it was only in May, 2003 that a parallel claim was alleged to have been made by the petitioner that the school in question has been run by the organization known as Arya Samaj and Vidyalaya. From the documents annexed to the complaint petition, it cannot remotely be held that there is absolutely no evidence to substantiate the offence of Section 419 IPC against the petitioner. Whether there is a registered society under the name and style of "Arya Samaj and Vidalaya", of which the petitioner claims himself to the Secretary and whether this society actually runs Arya Vidyalaya Secondary School, Jhalupara, Shillong are yet to be ascertained by the trial court. The contentions sought to be raised by the petitioner have been duly noted by me, but these are defences that will have to be put forth and considered during the trial and cannot be examined at this stage. Such defences that may be available, or facts/aspects when established during the trial, may lead to acquittal cannot be a ground for quashing the criminal proceedings at the threshold. The only question material for the decision of this Court at this stage is whether the averments made in the complaint make out the ingredients of a criminal offence or not. The petitioner has been accused of impersonation, forgery and cheating. I have carefully examined the complaint as a whole, but at this stage, I am not expected to make any detailed enquiry or meticulous analysis of the materials on record nor can I make assessment of the reliability or genuineness of the allegations made in the complaint while examining the prayer for quashing of the complaint. I can also not take into account the defence to be put forth by the petitioner during the trial because that is the function of the trial Magistrate. On examining the allegations made in the complaint petition, which are taken at their face value and accepted in their entirely, and without examining the defence put forth by the petitioner in the revision petition, I am of thus the view that those allegations in the complaint prima facie disclose criminal offences. On examining the allegations made in the complaint petition, which are taken at their face value and accepted in their entirely, and without examining the defence put forth by the petitioner in the revision petition, I am of thus the view that those allegations in the complaint prima facie disclose criminal offences. In Indian Oil Corporation case (Supra), where the IOC has initiated several civil proceedings to safeguard its interests and recover the amounts due, where those acts show that civil remedies where and are available in law and where IOC had taken recourse to such remedies, the Apex Court held that, that does not follow therefrom that criminal law remedy is barred or IOC is estopped from seeking such remedy. The following observations of the Apex Court at para 6 has almost a direct bearing on this case: The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not. 8. For what has been stated above, to quash the criminal proceedings at this stage will amount to stifling or scutting a legitimate prosecution. This criminal petition is devoid of merit and is accordingly dismissed. However, there shall be no order as to costs. Petition dismissed.