Madhukar Shuklaa v. State Of U. P. Thru. Secy. Home
2017-05-30
AJAI LAMBA, SATYA NARAIN AGNIHOTRI
body2017
DigiLaw.ai
JUDGMENT : 1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No. 81 of 2017, under Sections 420, 467, 468, 471, 120B, 506 I.P.C., Police Station Chowk, District Lucknow. 2. We have carefully gone through the impugned First Information Report. Allegation in the First Information Report is that the petitioners accused relied on forged and fabricated documents to obtain order dated 13.12.2006 from a court of law. On the basis of the said order the accused became Managing Trustee and has committed financial offences/irregularities to the extent of lacs of rupees. Order dated 13.10.2006 has been placed on record as Annexure-2. 3. It has been vehemently argued by the petitioners that petitioner no.1 has been appointed as Managing trustee by order of Court therefore, cannot be said to have committed any offence. 4. Respondent no.5 has appeared through counsel Shri Prakhar Mishra. Affidavit on behalf of respondent no.5 has been filed in court. 5. Shri Prakhar Mishra, Advocate has pointed out that the petition has been filed in suppression of material facts so as to mislead the court. It has been pointed out that order Annexure-2 dated 13.10.2006 on account of which the petitioner had been appointed Managing Trustee has already been recalled vide order dated 08.01.2010. 6. It has also been pointed out that although respondent no.5 was a necessary and relevant party to the lis, yet respondent no.5 had not been impleaded in the litigation before the lower court. Application for impleadment of respondent no.5 has now been allowed. Order dated 08.01.2010 vide which order dated 13.10.2006 has been recalled has been filed with the counter affidavit. 7. We have considered various aspects of the case. We have also taken into account the fact that investigation is at inceptive stage, the crime having been registered on 15.02.2017. 8. It is a clear case in which the petitioners have suppressed material fact from the Court. Subsequent order passed by Court of law dated 08.01.2016, which is related to the issue raised by the petitioner, has not been filed with the petition. The case of the complainant in Court is that the fraud committed by the petitioners is in excess of rupees one crore. In case the petitioners accused have squandered and embezzled money of the trust, surely offence has been committed. 9.
The case of the complainant in Court is that the fraud committed by the petitioners is in excess of rupees one crore. In case the petitioners accused have squandered and embezzled money of the trust, surely offence has been committed. 9. Considering the facts and circumstances of the case, we are of the considered opinion that evidence cannot be taken by way of affidavits and counter affidavits to record a finding that the petitioners have not committed the offence. No such material has been placed on record that can be translated into legal evidence so as to disprove the prosecution case, particularly because relevant facts and documents have been concealed from this Court. 10. Thorough investigation in the matter is required. 11. We have considered the contention of learned counsel for the petitioners, in context of the material/pleadings relied on by the petitioners, in context of judgment rendered by Hon’ble Supreme Court of India in Rajiv Thappar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 . In Rajiv Thappar’s case (supra), the following (relevant portion) has been held:- “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection.
The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. 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 of the Cr.P.C. 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 quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.: 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 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.
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? (Emphasised by us) 30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. 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 there from) specially when, it is clear that the same would not conclude in the conviction of the accused.” 12. We are of the considered opinion that the material/pleadings on which learned counsel for the petitioners has relied, is not such as would rule out and displace the assertions contained in the charges/allegations levelled against the accused; and the material produced is not of sterling and impeccable quality as would persuade reasonable person to dismiss and condemn the actual basis of the accusation as false. 13. Under the circumstances, we find no ground to interfere in extraordinary writ jurisdiction. 14. The petition is dismissed.