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Jharkhand High Court · body

2012 DIGILAW 850 (JHR)

Uday Shankar Choudhary v. State of Jharkhand

2012-06-20

H.C.MISHRA

body2012
Judgment Heard learned counsel for the petitioner and learned counsel for the respondent State. 2. The petitioner has filed this application for issuance of appropriate writ or order quashing the entire criminal proceeding against him, including the order dated 28.1.2004, by which, non-bailable warrant of arrest was ordered to be issued against the petitioner in G.R. Case No.151 of 2004, arising out of Dhurwa P.S. Case No.8 of 2004, for the alleged offences under Sections 406, 120B and 34 of the IPC. 3. Petitioner has been made accused in Dhurwa P.S. Case No.8 of 2004, corresponding to G.R. Case No.151 of 2004, which was instituted on the basis of the written report submitted by the District Education Officer-cum-Receiver, D.A.V. Public School, Dhurwa, Ranchi. In the F.I.R., there is allegation, against the Members of the Managing Committee of the DAV Public School, Dhurwa, to have committed criminal breach of trust with respect to the money of the said school. The petitioner is a legal practitioner and was not a member of the Managing Committee of the said school. So far as this petitioner is concerned, it is only alleged that the petitioner was an advocate to whom Rs. 37,500/-, 34,400/-and 74,500/-were paid by the then Secretary of the School on 5.12.2003, 27.11.2003 and 9.12.2003 respectively, as his professional fees, but it is alleged that there was no case against the school. Only on the aforesaid allegation the petitioner was made accused in the said Dhurwa P.S. Case No.8 of 2004 and it appears that by order dated 28.1.2004, non-bailable warrant of arrest was ordered to be issued against the petitioner on the prayer of the prosecution, which has also been challenged in this writ application. 4. It further appears that the State respondent has filed a counter affidavit in this case, wherein in paragraph 32, it is stated as follows:- “32. 4. It further appears that the State respondent has filed a counter affidavit in this case, wherein in paragraph 32, it is stated as follows:- “32. That it is humbly submitted that the petitioner has produced a bill in respect to payment of charged by him for his consultancy and other fee at contained in Annexure – 5, but from perusal of this paper, it is clear that it is completely bogus and it requires to be examined.” It appears that though it is stated in paragraph 32 of the counter affidavit that the bill submitted by the petitioner was completely bogus and required to be examined, but from perusal of the entire allegation in the F.I.R., it is apparent that it is no where alleged that the petitioner had produced the bogus bill with respect to the professional service rendered by him. From perusal of the F.I.R., it is also apparent that there no allegation against the petitioner that any money was ever entrusted to him with respect to which he had committed any criminal breach of trust, rather the only allegation against the petitioner is that, he was paid his professional fees by the Secretary of the School. 5. Learned counsel for the petitioner has submitted that the institution of the criminal case against the petitioner, as also the order passed therein by the Court below whereby the non-bailable warrant of arrest had been issued against the petitioner, are absolutely illegal in much as, there is no allegation in the entire FIR regarding the entrustment of any money to the petitioner. Whatever allegation against the petitioner is there, it is regarding payment of professional fees to the petitioner by the Secretary of the school. 6. It is further submitted that though it is alleged that no case was pending against the school, but the petitioner has brought on record the order-sheet of Complaint case No.1 of 2003 pending before the Court of Special Judge, Vigilance, Ranchi, which shows that the Secretary of the school had filed the complaint case against the Government Officials in which the petitioner being an advocate, had appeared and the case related to the demand of illegal gratification by the government officials from the Secretary of the school. Similarly, Annexure -4 has also been brought on record, which is the copy of a writ petition being W.P.(Cr.) No. 265 of 2003, filed by the management of the school making prayer for restraining the respondents to enter in the campus of the D.A.V. Public School, Dhurwa, in which the petitioner had appeared being an advocate. Learned counsel, thus, submitted that the allegation against the petitioner is absolutely baseless and even if, the entire allegations as made in the F.I.R. are accepted, no offence is made out against the petitioner, particularly in view of the fact that there is no allegation of any entrustment of property with the petitioner which the petitioner had dishonestly misappropriated, and accordingly, no offence is made out under Section 406 of the I.P.C. against the petitioner. As such, the entire criminal proceeding in the said Dhurwa P.S. Case No. 8 of 2004 against the petitioner is fit to be quashed. 7. Learned counsel for the State on the other hand, has submitted that on the basis of allegations made in the FIR, the offence is clearly made out against the petitioner in view of the fact stated in the Counter affidavit that bogus bill had been submitted by the petitioner. It is submitted by the learned counsel that in view of the allegation that the bill was submitted by the petitioner, even though no case was pending against the school, the offence is clearly made out against the petitioner as well and in that view of the matter the criminal proceeding against the petitioner cannot be quashed at this stage, in exercise of the extraordinary jurisdiction under Art. 226 of the Constitution of India. 8. After having heard learned counsels for both the sides and upon going through the record, I find that only allegation against the petitioner is that the petitioner had submitted the bills showing performance of professional work and the payments of the professional fees was made to the petitioner by the Secretary of the school. 8. After having heard learned counsels for both the sides and upon going through the record, I find that only allegation against the petitioner is that the petitioner had submitted the bills showing performance of professional work and the payments of the professional fees was made to the petitioner by the Secretary of the school. Though it is alleged that there was no case pending against the school in any Court, but Annexure 3 has been brought on record to show that the complaint case was filed by the Secretary of the School against the government officials making allegations of demand of illegal gratification, which was registered as complaint case No.1 of 2003 in the Court of Special Judge, Vigilance, Ranchi, in which the petitioner had appeared for the Secretary of the school. Similarly, Annexure -4 has also been brought on record, which is the copy of a writ petition, making prayer for restraining the respondents to enter in the campus of the D.A.V. Public School, Dhurwa, in which also, the petitioner appeared being an advocate. 9. In view of the aforementioned discussions, it is apparent that the payment of the professional fees was made to the petitioner by the Secretary of the School with respect to professional service rendered by him. This apart, even though the case relates to the alleged offence under Section 406 of the I.P.C., there is no allegation, whatever about entrustment of any property to the petitioner, which the petitioner allegedly dishonestly misappropriated or converted to his own use. In this view of matter, I find that even if the entire allegation made against the petitioner in the F.I.R., is accepted, no offence can be said to be made out against the petitioner. 10. Accordingly, the entire criminal proceeding qua the petitioner only, in Dhurwa P.S. Case No.8 of 2004, corresponding to G.R. No.151 of 2004, then pending in the Court of the Chief Judicial Magistrate, Ranchi, as also the order dated 28.1.2004 passed therein, as contained in Annexure 2 to this writ application, whereby non-bailable warrant of arrest was ordered to be issued against the petitioner, are hereby, quashed. This application is accordingly, allowed.