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2014 DIGILAW 132 (ALL)

VIJENDRA SINGH v. STATE OF U. P.

2014-01-13

MANOJ MISRA

body2014
JUDGMENT Hon’ble Manoj Misra, J.—Heard Sri Umesh Vats, holding brief of Sri Amit Kumar Singh, learned counsel for the applicant; Sri K.K. Rao, holding brief of Sri Satya Prakash Srivastava, for the opposite party No. 2; and the learned AGA for the State. By the present application, under Section 482 Cr.P.C., the applicant has sought for quashing of the proceedings of criminal case No. 1595 of 2012, arising out of charge-sheet submitted by the police under Section 420 IPC in case crime No. 464 of 2012, police station Kotwali, district Ballia, pending in the Court of Chief Judicial Magistrate, Ballia. 2. A perusal of the record reveals that the opposite party No. 2 lodged a first information report alleging therein that the applicant Vijendra Singh is working as a registered thekedar (contractor) in the food and civil supplies department of district Ballia. For attaining eligibility to be registered as a thekedar certain formalities are to be completed. One of them is to have a character certificate. It is alleged that in paragraph No. 4 of the affidavit filed by the applicant, for obtaining character certificate, it has been falsely alleged by him that he is not an advocate enrolled with the Bar Council when, in fact, he is enrolled as an advocate with enrollment number 1018 of 1972. It was thus alleged that for the purpose of obtaining registration as a contractor, the applicant made a false representation and, as such was guilty of an offence punishable under Section 420 IPC. The poilce conducted investigation and laid charge-sheet dated 30.6.2012 on which cognizance was taken on 5.7.2012. 3. The submission of learned counsel for the applicant is that although the applicant was initially enrolled as an Advocate, on 5th October, 1972, with the Bar Council of U.P., having enrollment No. 1018 of 1972, but the said enrollment certificate was surrendered on 28th January, 1979 alongwith an application that the applicant will not be practising law and, therefore, the original certificate of enrollment may be treated as ‘surrendered’. It has been submitted that in connection with the matter, the Regional Food Controller, Basti region, Basti had passed an order dated 23rd August, 2012, thereby cancelling the registration of the applicant as a contractor on ground that in the inquiry it was found that on 27th April, 2012, the applicant had deposited Rs. 1,290/- for renewal of his enrollment as an Advocate. 1,290/- for renewal of his enrollment as an Advocate. It has been submitted that the applicant had contested the proceedings with regard to cancellation of his registration as a contractor claiming before the authority concerned that he had not applied for renewal of enrollment by depositing Rs. 1,290/- and that it appears that some impostor, in order to cause damage to the applicant, has made such deposit. It has been submitted that the said matter travelled to this Court vide Writ C No. 45873 of 2012, wherein the original record was summoned from the Bar Council of U.P. and this Court had found, as a fact, that the enrollment certificate was surrendered by the applicant on 28th January, 1979 and that the deposit of Rs. 1,290/- seeking renewal of the enrollment was not made by the applicant and, accordingly by order dated 11th October, 2012, this Court had set aside order passed by the Regional Food Controller, Basti Region, Basti after recording a categorical finding to the above effect. It has been submitted that since the issue has already been set at rest by an authoritative pronouncement of this Court in Writ C No. 45873 of 2012 and the order passed by this Court has become final between the parties, the continuance of proceedings, as against the applicant, on the same issue, which has already been decided in favour of the applicant, would amount to abuse of the process of the Court and, as such, to secure the ends of justice, the proceedings be quashed. The copy of the order dated 11th October, 2012, passed by this Court in Writ C No. 45873 of 2012 has been produced in Court, which has been taken on record. 4. Learned counsel for the opposite parties do not dispute the passing of the order dated 11th October 2012 in Writ C No. 45873 of 2012. They also do not dispute that the aforesaid order has attained finality. 5. I have perused the order passed by this Court in Writ C No. 45873 of 2012. 4. Learned counsel for the opposite parties do not dispute the passing of the order dated 11th October 2012 in Writ C No. 45873 of 2012. They also do not dispute that the aforesaid order has attained finality. 5. I have perused the order passed by this Court in Writ C No. 45873 of 2012. A perusal thereof reveals that this Court has rendered a clear finding that the applicant had surrendered the enrollment certificate in the year 1979 with the Bar Council, which is still lying in the file of the Bar Council and that the applicant has not withdrawn the surrender and had neither applied for duplicate identity card nor had deposited Rs. 1290/- towards renewal fees. The relevant observation of this Court’s order dated 11.10.2012 passed in Writ C No. 45873 of 2012, as contained in paragraph 10 of the order, is reproduced herein below: “The original record of the Bar Council of Uttar Pradesh and the order passed by the Chairman, Bar Council clearly establishes that the enrollment certificate surrendered in the year 1979 is still available in the file of Bar Council. The applicant has not withdrawn the surrender and had not applied for duplicate identity card nor had deposited Rs. 1290/-.” From the decision of this Court it is thus established that the applicant having surrendered his enrollment as an advocate in the year 1979, did not make any false misrepresentation, with a dishonest intention, in the affidavit dated 8.8.2011 (Annexure 2 to the affidavit filed in support of the application), by stating he was not an advocate. Therefore, the very basis of his prosecution stands nullified. 6. Ordinarily, while considering a prayer for quashment of the criminal proceedings, only the prosecution documents are to be considered and the defence documents or the defence version given by the accused in support of his case cannot be considered while exercising the power under Section 482 of the Code of Criminal Procedure. However, there is no absolute bar that the Court, in exercise of its power under Section 482 of the Code, cannot at all consider the documents—which are beyond suspicion or doubt—placed by the accused, if on the face of those documents, the accusations cannot stand. In Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351 , the Apex Court, in paragraphs 25 and 26 of the report, observed as follows: “25. In Harshendra Kumar D. v. Rebatilata Koley, (2011) 3 SCC 351 , the Apex Court, in paragraphs 25 and 26 of the report, observed as follows: “25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents — which are beyond suspicion or doubt — placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage. 26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant’s resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.” 7. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant’s resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.” 7. Further, in the case of Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 , the Apex Court, while laying down the various tests as to when a defence document can be considered for quashing the proceedings, in exercise of power under Section 482 of the Code, in paragraph 29 onwards of the report, observed as follows: 29............................To invoke its inherent jurisdiction under Section 482 CrPC 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 CrPC 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 quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 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 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, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. 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.” The view taken in Rajiv Thapar’s case has been followed and reiterated by the Apex Court in the case of Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 293 . 8. Coming to the instant case, the prosecution case was based only on the allegation that the applicant being an enrolled advocate made a false statement that he was not an advocate so as to obtain registration as a contractor. Whether a person is a practicing advocate or has surrendered his license to practice can no better be ascertained than from the record of the Bar Council. Whether a person is a practicing advocate or has surrendered his license to practice can no better be ascertained than from the record of the Bar Council. Therefore, once from the record produced by the Bar Council before this Court in Writ C No. 45873 of 2012, this Court, by its judgment and order dated 11.10.2012, held that the applicant had surrendered his certificate of enrollment on 28th January, 1979 and that he had not applied for renewal of his certificate of enrollment, the statement made by the applicant in the affidavit of the year 2011 that he is not a practicing Advocate, cannot be said to be false or misleading so as to justify drawing of proceedings against him. Thus, the very foundation of the prosecution case stands demolished, by a document which is none other than a judgment of this Court and the correctness of which has not been doubted by the learned counsel for the parties, further, when there is no dispute of it having attained finality. In such circumstances, there is no shadow of doubt that the prosecution of the applicant would be an exercise in futility and waste of precious time of the Court. Holding of trial now, when the fundamental issue has already been decided by this Court in favour of the applicant (accused), would be travesty of justice. Accordingly, this Court considers it to be a fit case where the proceedings deserve to be quashed. 9. For the reasons stated here-in-above, the application is allowed. The proceedings of criminal case No. 1595 of 2012, arising out of charge-sheet submitted by the police, under Section 420 IPC, in case crime No. 464 of 2012, police station Kotwali, district Ballia, pending in the Court of Chief Judicial Magistrate, Ballia, are hereby quashed. There shall be no order as to costs.