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Allahabad High Court · body

2016 DIGILAW 3189 (ALL)

HABIB AHMAD Etc. v. STATE OF U. P.

2016-09-19

HARSH KUMAR

body2016
JUDGMENT Hon’ble Harsh Kumar, J.—Both the aforesaid Applications under Section 482 Cr.P.C. arise out of same incident and same case crime number, hence are being taken up together. 2. Shri V.D. Ojha, learned counsel for the opposite party No. 2 filed counter-affidavit on behalf of the opposite party No. 2 in Application under Section 482 Cr.P.C. No. 43724 of 2012, which is taken on record, but no counter-affidavit has been filed in Application under Section 482 Cr.P.C. No. 12023 of 2013. 3. Heard learned counsel for applicants and learned AGA for the State, learned counsel for the opposite party No. 2 and perused the record. 4. The present Application under Section 482 Cr.P.C. No. 43724 of 2012 has been moved for quashing the charge-sheet No. 288A of 2012 dated 28.9.2012 and Application under Section 482 Cr.P.C. No. 12023 of 2013 has been moved for quashing the charge-sheet No. 288 of 2012 dated 30.8.2012 and prayer has been made in both Applications for quashing of further proceedings of criminal case No. 3665 of 2012 (State v. Ali Ahmad and others), arising out of case crime No. 664 of 2012, under Sections 420, 467, 478, 471 IPC, P.S. Swar, District Rampur, pending in the Court of Additional Chief Judicial Magistrate, Rampur. 5. Learned counsel for applicants contends that the applicant Habib Ahmad was secretary of Gram Shiksha Samiti being Headmaster of Primary School of the Village Rustam Nagar, P.S. Swar, District Rampur while the applicants Ali Ahmad and Jagat Singh were members of the Committee being guardians of two students, and Smt. Nanhi Begum was Chairman of the Committee by virtue of being Village Pradhan; that the applicants have been falsely implicated on the false FIR lodged by opposite party No. 2 on 3.4.2012 at case crime No. 664 of 2012 through application under Section 156(3) Cr.P.C dated 23.2.2011 and the Investigating Officer, without collecting any evidence has submitted charge-sheets under the influence of the opposite party No. 2; that as per averments made in the FIR, the applicant Habib Ahmad allegedly called the opposite party No. 2 at his home on 16.3.2001 and demanded a sum of Rs. 50,000/- from him, for making his selection on the post of Shiksha Mitra in Primary School of Village Rustampur, but he refused to make payment and asked for transparent selection. 50,000/- from him, for making his selection on the post of Shiksha Mitra in Primary School of Village Rustampur, but he refused to make payment and asked for transparent selection. The above selection was set aside by this Court as the post of Shiksha Mitra was reserved for female candidate; that again in the year 2004 the same Principal (applicant Habib Ahmad) allegedly received the application form of opposite party No. 2 for Shiksha Mitra on 17.12.2004 and on 19.12.2004, told him of misplacing of his application and when on 20.12.2004, he approached the applicant Habib Ahmad with another application form, he did not accept and got selected Noor Hasan in connivance with other accused persons and is alleged to have committed cheating with the opposite party No. 2; that the real fact is that neither any demand was made from the opposite party No. 2 nor he ever submitted any application for his selection on the post of Shiksha Mitra in the year 2004; that the claim of opposite party No. 2 for selection by filing three Writ Petitions Nos. 13356 of 2006, 69955 of 2009 and 12132 of 2015, has been rejected by this Court vide final orders dated 9.3.2011, 22.12.2009 and 27.2.2015 respectively; that in Writ-A No. 12132 of 2015 filed by the opposite party No. 2 seeking appointment to the post of Shiksha Mitra in the Primary School in Village Rustam Nagar near Raipur, Tehsil Swar, District Rampur for the year 2004 has been dismissed by this Court on 27.2.2015 by observing the concealments of facts and narration of wrong and false facts made by opposite party No. 2, and imposing a cost of Rs. 25,000/- on him, copy at Annexure SA2 to the supplementary-affidavit, filed in Application under Section 482 Cr.P.C. No. 12023 of 2013; that in furtherance of order dated 22.12.2009 passed by this Court in Writ Petition No. 69955 of 2009, the opposite party made a representation to District Magistrate, Rampur, who rejected the same by a reasoned order dated 6.4.2010 (respectively at Annexure 5 and Annexure 3 in two Applications under Section 482 Cr.P.C. Nos. 43724 of 2012 and 12023 of 2013), holding that no application for the post of Shiksha Mitra, was ever submitted by the opposite party No. 2; that the correctness of order dated 6.4.2010 passed by District Magistrate, Rampur, has been upheld by this Court vide subsequent final orders passed in Writ Petitions as mentioned above; that after loosing battle from Writ Court in Writ Petition Nos. 13356 of 2006 and 69955 of 2009 as well as in the representation before District Magistrate, Rampur on 6.4.2010, the opposite party No. 2 has, with mala fide intention to harm and harass the applicants, concocted a false story regarding alleged demand of Rs. 50,000/- for selection in the year 2001 and further the alleged submission of application form (of which no date has been given) and of getting it misplaced by applicants in collusion with each other and lodged the FIR with absolutely false and concocted and new facts; that in view of observations made by the Writ Court, the averments made in the FIR lodged after inordinate delay of over six years from the incident, are proved to be absolutely false and baseless and so the charge-sheets as well as proceedings of criminal case No. 3665 of 2012, under Sections 420, 467, 478, 471 IPC, P.S. Swar, District Rampur, arisen out of case crime No. 664 of 2013, pending in the Court of Additional Chief Judicial Magistrate, Rampur are liable to be quashed. 6. 6. It was further submitted by learned counsel for the applicants that though the charges have been framed by the trial Court in the impugned case and part statement of PW-1 has been recorded, but thereafter upon application moved by opposite party No. 2 under Section 319 Cr.P.C., to summon the then Assistant Basic Shiksha Adhikari Sri Ajay Kumar Singh and ultimately selected candidate Asaruddin son of Rahim Bux, they have been summoned by the trial Court, against which order a revision is pending before the Sessions Court and further proceedings of trial have been stayed by revisional Court till disposal of revision; that the contention of the learned counsel for the opposite party No. 2, of having moved any application for recall of the order dated 27.2.2015 passed in Writ-A No. 12132 of 2015, is wrong and misconceived because (i) the applicants have not been served with any notice of any such recall application during the period of last more than one and half year from the date of final order dated 27.2.2015 passed in the Writ; (ii) the above order has been passed on merits after hearing the parties and not in absence of counsel for the opposite party No. 2; and (iii) the recall application, if any, has been moved with mala fide intention and ulterior motive and is legally not maintainable. 7. Per contra learned counsel for the opposite party No. 2 vehemently opposed the prayer for quashing the charge-sheets as well as proceedings of criminal case No. 3665 of 2012, under Sections 420, 467, 478, 471 IPC, P.S. Swar, District Rampur, pending in the Court of Additional Chief Judicial Magistrate, Rampur and contended that from the materials available on record, it is proved that the applicants and other co-accused, in collusion with each other, have committed the offence of cheating in making selection of Noor Hasan/ Asaruddin in the year 2004 on the post of Shiksha Mitra in the Primary School of the Village by deliberately making loss of application form of the opposite party No. 2 for selection on the post of Shiksha Mitra for non-fulfillment of their demand of Rs. 50,000/- as illegal gratification; that it has been clearly mentioned in para 5 of the application under Section 156(3) Cr.P.C. for lodging FIR that copy of acknowledgment was annexed with the application under Section 156(3) Cr.P.C.; that the Applications under Section 482 Cr.P.C. for quashing the charge-sheets as well as entire proceedings of the aforesaid case are mala fide and misconceived and there is no sufficient ground for quashing the charge-sheets as well as entire proceedings of the aforesaid case. 8. Learned counsel for the opposite party No. 2 further submitted that in view of averments made in FIR, the cognizable offence is proved to have been committed by applicants and the trial Court has framed charges after hearing them; that the trial is in progress and after framing of charges against the charge-sheeted accused persons, the part statement of PW-1 has also been recorded, whereafter on the application under Section 319 Cr.P.C., of the opposite party No. 2, two accused namely Asruddin and Ajay Kumar (who were named in the FIR, but not charge-sheeted), have been summoned for trial together; that against the order of summoning, the summoned additional accused persons have filed a criminal revision before the Sessions Judge, Rampur, which is pending for disposal; that against the order dated 27.2.2015, the opposite party No. 2 has moved recall application and so the findings made in the order passed in Writ A No. 12132 of 2015 may not have any adverse effect on the prosecution of accused persons; that the Applications are liable to be dismissed. 9. Upon hearing learned counsel for the parties and perusal of records, I find that according to the prosecution case, the applicant Habib Ahmad allegedly demanded a sum of Rs. 50,000/- from the opposite party No. 2 on 16.3.2001 for getting him selected on the post of Shiksha Mitra in the year 2001, regarding which no FIR was lodged for the offence allegedly committed by making such demand. In the year 2004 at the time of next selection process for the post, no such demand is alleged to have been made or repeated. As per averments made in the FIR, the applicant Habib Ahmad, mischievously got the application form of the opposite party No. 2 misplaced/lost in collusion with co-accused persons and further refused to accept another application form for getting Noor Hasan selected and thus committed the offence. 10. As per averments made in the FIR, the applicant Habib Ahmad, mischievously got the application form of the opposite party No. 2 misplaced/lost in collusion with co-accused persons and further refused to accept another application form for getting Noor Hasan selected and thus committed the offence. 10. It is pertinent to mention that Writ-A No. 12132 of 2015 filed by the opposite party No. 2, claiming his appointment on the post of Shiksha Mitra in the year 2004 after quashing the appointment of co-accused Noor Hasan/ Asaruddin, has been dismissed by the Writ Court vide final order dated 27.2.2015 with following observations made in paras 3, 12, 13, 21 and 22 : “(3) Contention is that the Head-master of the institution had refused to accept the application of the petitioner on the ground that the selection of Noor Hasan shall be renewed and no fresh application would be entertained. Finally, the selection of Noor Hasan was cancelled and the second placed candidate namely Asruddin was appointed. (12) A perusal of the order dated 6.4.2010 clearly indicates that the claim of the petitioner was considered on merits. In the representation filed on 3.2.2010, the petitioner’s claim was that he has submitted the application form for the post of Shiksha Mitra but it was not accepted by the Principal/Secretary of Gram Shiksha Samiti, Rustam Nagar near Raipur, District Raipur. The petitioner was ‘Anaupcharik Anudeshak’ and could have secured higher marks than the selected candidates if he would has been allowed to participate. (13) It was found that the petitioner has not submitted any application form for the post of Shiksha Mitra. Two posts of Shiksha Mitra one from a (female) candidate and another from Sri Asruddin was filled. (21) Further on merits of the claim of the petitioner, this Court finds that the petitioner has not been able to substantiate that he has applied for the post of Shiksha Mitra in the year 2004. It is apparent from the minutes of meeting of Gram Shiksha Samiti appended as Annexure ‘7’ to the writ petition that only two application forms were received and placed in the meeting held on 23.12.2004. The claim of the petitioner for appointment, therefore, is found devoid of merits. (22) From the above discussion, it is apparent that the petitioner has utterly misused the process of this Court with full knowledge and deliberation. The claim of the petitioner for appointment, therefore, is found devoid of merits. (22) From the above discussion, it is apparent that the petitioner has utterly misused the process of this Court with full knowledge and deliberation. From his conduct, the petitioner appears to be a habitual litigant having no respect for a Court of Law and Justice. Looking to the conduct of the petitioner, with a view to uphold the solemn procedure of law, and as a deterrent this writ petition is dismissed with cost which I shall quantify to Rs. 25,000/-.” 11. It is settled principle of law that at the stage of Section 204 Cr.P.C., only a prima facie case is to be seen by the Magistrate as laid down by Supreme Court in cases of R.P. Kapoor v. State of Punjab, AIR 1960 SC 866 , State of Haryana v. Bhajan Lal, 1992 SCC (Cr) 426 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque and another, (2005) 1 SCC 122 . 12. Generally speaking, at the time of looking into the correctness of summoning order, the defences may not be looked into and the same is to be assessed only on the averments made in complaint and statements as well as the material provided by the complaint, and the defences may be taken into consideration only in exceptional cases. The legal position remains same in case of summoning of accused on submission of charge-sheet. 13. It has been held in the case of Nupur Talwar v. CBI and another, (2012) 11 SCC 465 , that “defences may be taken into consideration only if defences raised by accused are factually unassailable and unconvertible and demolish the foundation of prosecution case”. In Devendra and others v. State of U.P. and another, 2009 (67) ACC 886, Hon’ble the Apex Court has considered the civil wrong and criminal wrong and has held as under : “We may, however, notice that the said decision has been considered recently by this Court in Mahesh Choudhary v. State of Rajasthan and another, 2009 (4) SCC 66 , wherein it was noticed: “Recently in R. Kalyani v. Janak C. Mehta and others, JT 2008 (12) SC 279, this Court laid down the law in the following terms: 9. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed, no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. (10) It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 14. The contents of para 3 of above judgment dated 27.2.2015 passed in Writ A No. 12132 of 2015, shows that in above Writ Petition as well as in his earlier writ petitions, the opposite party No. 2 had taken a stand that his application form for the post of Shiksha Mitra was not accepted by the applicant Habib Ahmad, without making any whisper of alleged demand of Rs. 50,000/- as illegal gratification or of misplacement/ loss of earlier application moved in 2004. 50,000/- as illegal gratification or of misplacement/ loss of earlier application moved in 2004. The contents of paras 12 and 13 of the above judgment makes it clear that the District Magistrate, Rampur in his order dated 6.4.2010 held that the opposite party No. 2 (petitioner in the Writ Petition) had not submitted any application form for the post of Shiksha Mitra, which was affirmed by this Court in two Writ Petition Nos. 13356 of 2006 and 12132 of 2015. It is also clear that after rejection of representation by the District Magistrate, Rampur vide order dated 6.4.2010, the opposite party No. 2 changed his stand (taken in Writ Petitions) and moved an application under Section 156(3) Cr.P.C. on 23.2.2011 (after a period of over five years) and by way of improvement took new plea of alleged demand of Rs. 50,000/- and alleged loss of his first application from for the year 2004, by applicant Habib Ahmad. 15. In view of the discussions made above and facts and circumstances of the case, since it has been held by Writ Court that the opposite party No. 2 did not submit any application form for the post of Shiksha Mitra in the year 2004, and his claim for the said post has been dismissed, the opposite party No. 2 may not have any prima facie case for prosecution of applicants on the ground of alleged loss of his application form (which was never submitted) by the applicant Habib Ahmad in collusion with members of Committee Ali Ahmad and Jagat Singh or any other accused persons. In the circumstances, there can be no possibility of conviction of applicants Habib Ahmad, the Secretary or applicants Ali Ahmad and Jagat Singh, the members of the Committee and the proceedings of criminal case No. 3665 of 2012, arising out of two charge-sheets No. 288 and 288A of 2013 submitted in case crime No. 664 of 2012 are only futile exercise, which will waste the valuable time of the Court, which may be utilized for disposal of several important cases as well as cases of poor litigants. I am of the considered view that the proceedings of criminal case are abuse of process of Court, and in order to prevent the abuse of process of Court as well as to secure the ends of justice, the exercise of inherent powers by this Court is required for quashing the frivolous proceedings of criminal case No. 3665 of 2012 based on FIR lodged by the opposite party No. 2 in case crime No. 664 of 2012. 16. It is not disputed that against the order passed on the application under Section 319 Cr.P.C., for summoning co-accused Ajay Singh and Asaruddin and co-accused persons, revision is pending before the Sessions Judge, under which the proceedings of trial Court are bound to have been stayed. The moving of application for recall of order dated 27.2.2015 in Writ A No. 12132 of 2015, for recall of an order passed on merits after hearing the parties, has no relevancy in this case. 17. In view of the discussions made above, I find that since the very moving of the application for appointment of Shiksha Mitra in the year 2004 by the opposite party No. 2, has been disbelieved by the Writ Court and as per order passed in Writ-A No. 12132 of 2015, the opposite party No. 2 had not even moved any such application, it is a fit case, in which the charge-sheets as well as entire proceedings of criminal case No. 3665 of 2012, arising out of case crime No. 664 of 2012, under Sections 420, 467, 478, 471 IPC, P.S. Swar, District Rampur, pending in the Court of Additional Chief Judicial Magistrate, Rampur are required to be quashed in exercise of inherent powers of this Court, to prevent the abuse of process of Court as well as to secure the ends of justice. Accordingly, the charge-sheets as well as entire proceedings of criminal case No. 3665 of 2012 arising out case crime No. 664 of 2012 are hereby quashed. 18. The applications under Section 482 Cr.P.C. are allowed accordingly.