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2018 DIGILAW 1190 (ALL)

DURGESH TRIPATHI v. STATE OF U. P.

2018-05-11

AMAR SINGH CHAUHAN

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JUDGMENT : Hon'ble Amar Singh Chauhan,J. Heard Sri Ashok Bhatnagar, learned counsel for the applicant, Sri Anant Ram Dube for the opposite party, learned AGA for the State and perused the material on record. The applicant, Durgesh Tripathi, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 16.3.2012 as well as complaint dated 14.9.2011 giving rise to Criminal Case No. 2300 of 2011 (Ram Siya Vs. Shiv Lal and others) under Sections 420, 465, 468 and 471 Cr.P.C., P.S. Karvi, District Chitrakoot pending in the Court of Chief Judicial Magistrate, Chitrakoot and stay the further proceedings in the aforesaid case. Brief facts which are requisite to be stated for the adjudication of this application are that the opposite party no. 2 moved an application under Section 156(3) Cr.P.c. before the Chief Judicial Magistrate, Chitrakoot with the allegation that the Principal of the college Shri Shiv Lal and account Clerk Shri Ram Raj of having embezzled Crores of rupees of State Government under the grab of disbursement of salary to its teaching and non teaching staff and that the applicant Durgesh Tripathi along with Gaya Prasad Pal to be hand in gloves with then in the embezzlement. The Magistrate treated the application as complaint and after recording the statement under Sections 200 and 202 Cr.P.C. and on being satisfied issue process against the applicant. Feeling aggrieved, this application was moved before this Court by the applicant. It is submitted by the learned counsel for the applicant that the applicant joined his services in August 2009 and presently posted as Finance and Account Officer, Basic Shiksha, Chitrakoot. He has been passing orders for disbursement of salary to the teaching and non teaching staff of the educational institution Gyan Bharti Shiksha Sadan, Purva Madhyamik Vidhyalaya since December, 2009 whereas the applicant has been implicated for the offence alleged to have been committed between the period 2006 to 2011 and as such the applicant cannot be held liable for any act done by his predecessor. It is further submitted that the opposite party no. It is further submitted that the opposite party no. 2 has made a very general allegation without specifying any person/teacher having illegally received any salary or allowance which was not due to him and in the complaint also there has not been mentioned any incident or document alleged to have been forged or fabricated warranting the offence under Sections 465, 468 and 471 Cr.P.C. and as such there is no specific allegation against the applicant and the applicant has been falsely implicated in Criminal Case No. 2300 of 2011 (Ram Siya Vs. Shiv Lal and others) under Sections 420, 465, 468 and 471 Cr.P.C., P.S. Karvi, District Chitrakoot. It is further submitted that the opposite party no. 2 was ousted from the post of Manager, Committee of Management, Gyan Bharti Shiksha Sadar, Purva Madhyamik Vidhyalaya in the elections held on 30.8.2011 and a new Committee of Management was elected wherein one Awadhesh Prasad was elected as Manager and his signatures were verified by the District Basic Shiksha Adhiari, Chitrakoot on 14.9.2011 against which in retaliation, the opposite party no. 2 lodged the impugned complaint on 14.9.2011. It is also submitted that the opposite party no. 2 also filed a writ petition before this Court being Writ Petition No. 67846 of 2011 (C/M Gyan Bharti Shiksha Sadan and others Vs. State of U.P. and others) after aggrieving by the signature attestation order dated 14.9.2011 wherein the complainant himself has stated that he was functioning as Manager and under his signature salary bills have been regularly passed upto 30.8.2011 which fact is evident from the interim order passed by this Court on 25.12.2011. Lastly, it is submitted that the applicant is a responsible government officer and public servant holding a Gazetted Post and without complying with the provision under Section 197 Cr.P.C. seeking prior approval and sanction from the State Government, the Chief Judicial Magistrate has illegally proceeded to take cognizance of the offence by issuing summons which is wholly illegal and not permissible under the eyes of law. Learned counsel for the applicant has relied upon in the case of Rakesh Kumar Mishra Vs. State of Bihar and others [2006(54) ACC 536] in which the Apex Court has held that "the mandatory character of the protection afforded to a public servant is brought out by the expression, no Court shall take cognizance of such offence except with the previous sanction. State of Bihar and others [2006(54) ACC 536] in which the Apex Court has held that "the mandatory character of the protection afforded to a public servant is brought out by the expression, no Court shall take cognizance of such offence except with the previous sanction. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power by the Court to take cognizance of any offence is absolute and complete. Very cognizance is barred." Per contra, learned counsel for the complainant has contended that prima facie, case is made out against the applicant and has rightly been summoned by the Magistrate. In support of the complaint, the statement under Sections 200 and 202 Cr.P.C. has been recorded and on being satisfied the Chief Judicial Magistrate, Chitrakoot passed the summoning order against the applicant and there is sufficient material to proceed with the case. It is not necessary that Magistrate has to see that in the fact and circumstances, conviction is possible or not as such there is no illegality or irregularity in the order of summoning. The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows: "The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection." In the case in hand, the allegation in the complaint is that the Principal of the college Shri Shiv Lal and account Clerk Shri Ram Raj of having embezzled Crores of rupees of State Government under the grab of disbursement of salary to its teaching and non teaching staff and that the applicant Durgesh Tripathi along with Gaya Prasad Pal to be hand in gloves with then in the embezzlement occurred between the period 2006 to 2011. The allegation is not substantiated with any documentary evidence like as enquiry report or audit report being done in the closing of the every year. Besides this the applicant has been implicated in the offence alleged to have been committed between the period of 2006 to 2011 but the applicant joined his services as Finance and Account Officer in August 2009 and as such the applicant cannot be held liable for the period of his predecessor of the post. It is to be noteworthy that opposite party no. 2 filed a Writ-C No. 67846 of 2011 of which it is necessary to reproduce the extract in part of the order passed by the another Bench of this Court: "It has been contended on behalf of the petitioners that since inception of the institution in question Ram Siya continued to function as Manager and under his signature salary bill has been regularly passed. It has been stated that large scale conspiracy has been played by the Principal of the institution with the collusion of concern clerk of the institution and fake papers has been prepared showing that election has been held on 30.8.2011. Based on the said election dated 30.8.2011, Assistant Registrar, Firms, Societies and Chits, Jhnsi Division, Jhansi proceeded to register the list of office bearers. Thereafter complaint has been made mentioning therein that fraud has been practiced on the Assistant Registrar, Firms, Societies and Chits, Jhnsi Division, Jhansi and on the same cognizance has been taken. Petitioners have stated that District Basic Education Officer has also submitted his report and addressed a letter to the petitioner mentioning therein petitioner for the first time as Ex- Manager, and has submitted that he has attested the signature on 14.9.2011 of Awadhesh Prasad. Petitioners have stated that District Basic Education Officer has also submitted his report and addressed a letter to the petitioner mentioning therein petitioner for the first time as Ex- Manager, and has submitted that he has attested the signature on 14.9.2011 of Awadhesh Prasad. Petitioners' precise contention is that Awadhesh Prasad, respondent no 7 is not even primary member of the society and neither Ram Prakash has ever been president nor member. Petitioners submit that large scale of manipulation has been done and willfully and deliberately the institution in question has been sought to be usurped by rank trespasser." It is clear from the order that complainant himself has stated that he was functioning as Manager and under his signature salary will have been regularly passed upto 30.8.2011 which lies squarely in the teeth of and in contradiction to the allegation made in the complaint. So far as the ground taken by the applicant that the applicant is a responsible Government Officer and Public Servant holding a gazetted post and without complying with the provision of under Section 197 Cr.P.C. seeking prior approval and sanction from the State-Government, the Chief Judicial Magistrate has illegally proceeded to take cognizance of the offence by issuing process against the applicant is concerned, there must be preliminary enquiry to disclose the nexus between act complained of and discharge of public duty. The Hon'ble Apex Court in case of Amal Kumar Jha vs. State of Chhatisgarh and another [(2016) 6 Supreme Court Cases 734] had held that there is a need for preliminary enquiry to establish that act concerned had some nexus with discharge of official duty before Section 197 Cr.P.C. can be invoked. The concept of Section 197 Cr.P.C. does not get immediately attracted on institution of the case, unless abovesaid nexus is first established. The same was also reiterated in N.K. Ganguly vs. Central Bureau of Investigation, New Delhi [(2016) 2 Supreme Court Cases 143]. The Hon'ble Supreme Court in case of M.N. Ojha and others vs. Alok Kumar Srivastav and Another, [2010(1)ACR 794 (SC)] wherein it has been held that "averments and allegations made in the complaint do not disclose the commission of any offence by the appellants or any one of them. The Hon'ble Supreme Court in case of M.N. Ojha and others vs. Alok Kumar Srivastav and Another, [2010(1)ACR 794 (SC)] wherein it has been held that "averments and allegations made in the complaint do not disclose the commission of any offence by the appellants or any one of them. Sequence of events undoubtedly suggests that the criminal proceedings have been maliciously instituted with an ulterior motive of wreaking vengeance on the appellants and with a view to spite them due to personal grudge. The criminal law has been set in motion by Magistrate by mere asking to do so by the complainant. The High Court almost abdicated its duty in refusing to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure though the case on hand required its interference in order to prevent abuse of the process by court subordinate to it. A clear case is made out requiring our interference to secure the ends of justice. The order of High Court was set aside and criminal proceedings have been quashed. Interference by the High Court in exercise of its jurisdiction under Section 482 Cr.P.C. can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. It is well settled and needs no restatement that the saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose "which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. It is well settled and needs no restatement that the saving of inherent power of the High Court in criminal matters is intended to achieve a salutary public purpose "which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If such power is not concerned, it may even lead to injustice." In view of what has been submitted and discussed above, the application has substance and is liable to be allowed. Accordingly, the application is allowed and the summoning order dated 16.3.2012 passed by the Chief Judicial Magistrate, Chitrakooot in Criminal Complaint Case No. 2300 of 2011 (Ram Siya Vs. Shiv Lal and others) under Sections 420, 465, 468 and 471 Cr.P.C., P.S. Karvi, District Chitrakoot is hereby quashed with the direction that matter be remitted back to the concerned court to decide afresh in view of what has been discussed and according to law.