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2021 DIGILAW 390 (UTT)

Vinod Kumar Kuliyal v. State Of Uttarakhand

2021-08-13

ALOK KUMAR VERMA

body2021
JUDGMENT Alok Kumar Verma, J. - This criminal writ petition has been filed under Article 226 of the Constitution of India to issue a writ of certiorari to quash the impugned FIR No.0132 of 2019, registered with Police Station Muni-Ki-Reti, District Tehri Garhwal for the offence under Sections 406, 409, 420 and 120-B of I.P.C.; a writ of mandamus to direct the respondents not to take any coercive steps including arrest of the petitioner in pursuance to the impugned FIR. 2. Facts, to the limited extent necessary, are that in the scholarship scam, in compliance with the order dated 05.09.2019 of this High Court, passed in Writ Petition (PIL) No.33 of 2019, Ashish Kumar, Sub-Inspector was appointed as a member of the Special Investigation Team (SIT). After enquiry, Sub Inspector Ashish Kumar lodged an FIR on 01.10.2019, against Swami Poornanand Degree College of Technical Education, Kailash Gate, Muni-Ki-Reti, Tehri Garhwal, Uttarakhand and Social Welfare Department. According to the FIR, Rs.14,88,500/- of scholarship amount was embezzled. The name of the present petitioner has come to light during the investigation and Sections 467, 468 and 471 of I.P.C. have been added against the present petitioner. The investigation is in progress. 3. Heard Mr. Navneet Kaushik, the learned counsel for the petitioner and Mr. T.C. Agarwal, the learned Deputy Advocate General assisted by Mr. P.S. Uniyal, the learned Brief Holder for the State. 4. Mr. Navneet Kaushik, the learned counsel for the petitioner, submitted that the petitioner is neither employee of the Swami Poornanand Degree College of Technical Education nor he is the Manager of Swami Poornanand Degree College of Technical Education. He has no relation with the said Degree College. The petitioner is a teacher in Swami Poornanand Intermediate College, Muni-Ki-Reti, Tehri Garhwal. He never signed any paper on behalf of the Principal, Swami Poornanand Degree College of Technical Education, Muni-Ki-Reti, Tehri Garhwal and if such paper exists, in which any demand was raised from the Social Welfare Department, then the Social Welfare Department should not have accepted the demand of the scholarship for the reason that it was the duty of the said department to confirm under whose name and signature the said demand was forwarded for the scholarship. 5. On the other hand, Mr. 5. On the other hand, Mr. T.C. Agarwal, the learned Deputy Advocate General, opposed the present petition and submitted that during the course of the investigation, evidence has been produced to the effect that the present petitioner is involved in this offence of embezzlement of the scholarship. The petitioner sent a fake letter dated 19.02.2015 to the Social Welfare Officer, Narendra Nagar, Tehri Garhwal on behalf of the Principal, Swami Poornanand Degree College of Technical Education, Muni-Ki-Reti, Tehri Garhwal, demanding Rs.23,48,500/- for 61 students of the Scheduled Castes. Mr. T.C. Agarwal, the learned Deputy Advocate General for the State, further submitted that the specimen signature of the present petitioner was taken and the said letter dated 19.02.2015 along with the specimen signature of the petitioner were sent to the Forensic Science Laboratory, Uttarakhand, Dehradun and according to the report of the said laboratory dated 23.02.2021, the signature of the petitioner has been found on the said letter dated 19.02.2015. 6. In Pepsi Food Limited vs. Special Judicial Magistrate and others, (1998) 36 AllCriC 20 , the Hon'ble Supreme Court has observed that the power conferred on the High Court under Article 226 and 227 of the Constitution of India, and under Section 482 of the Code have no limits, but more the power more due care and caution is to be exercised in invoking these powers. 7. In State of Haryana v. Bhajan Lal, (1992) Supp1 SCC 335, the Hon'ble Supreme Court held, "(1) Where the allegations made in the first information report or the 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 allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) 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 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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 8. In Criminal Appeal No. 330 of 2021, 'M/s. Neeharika Infrastructure Private Ltd. Vs. State of Maharashtra and others', the Hon'ble Supreme Court has held on 13.04.2021 as under:- "10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences; ii) Courts would not thwart any investigation into the cognizable offences; iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court); v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR." "23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/ FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied." 9. Social Justice is recognized by the Preamble of the Constitution of India. The provision of Social Justice is also made in Clause (4) of Article 15 of the Constitution of India. This Clause prescribes, protection and safeguards of any socially and educationally backward classes of citizens or of Scheduled Castes and the Scheduled Tribes. Clause (4) of Article 15 makes a special application of the principle of reasonable classification. Under this Clause, the State is empowered to make special provisions for the Scheduled Castes and the Scheduled Tribes. The State of Uttarakhand issued Government Order dated 28.06.2006 and Government Order dated 25.07.2006, whereby the process of scholarship had been fixed to be given by the Department of Social Welfare to the students belonging to the Scheduled Castes, the Scheduled Tribes, Backward Classes and Minority Classes. These scholarships are given to encourage the parents from these Classes to send their wards to schools and colleges, and to ensure that education is not denied due to the poor financial condition of their families. The object of this scholarship scheme is to support the parents of these Classes for educating their wards. This scheme is collectively funded by the Central and the State Governments. 10. In Niranjan Hem Chandra Sashittal Vs. The object of this scholarship scheme is to support the parents of these Classes for educating their wards. This scheme is collectively funded by the Central and the State Governments. 10. In Niranjan Hem Chandra Sashittal Vs. State of Maharashtra, (2013) 4 SCC 642 , the Hon'ble Apex Court observed that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. The Hon'ble Apex Court further observed that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered; and the only redeeming fact is that collective sensibility respects such suffering as it is in consonance with constitutional morality. The emphasis was on intolerance to any kind of corruption bereft of its degree. 11. In Subramanian Swamy Vs. C.B.I., (2014) 8 SCC 682 , the Constitution Bench of the Hon'ble Supreme Court observed that corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the 1988 Act. 12. In Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation, (2018) 16 SCC 299 , the Hon'ble Supreme Court observed that the cancer of corruption has, as we all know, eaten into the vital organs of the State. Cancer is a dreaded disease which, if not nipped in the bud in time, causes death. 13. It is well settled that at the time of investigation, merits of the case cannot be tested and it is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations. This Court would not also examine the genuineness of the allegations since this Court does not function as a Court of Appeal or Revision, while exercising its jurisdiction under Article 226 of the Constitution of India. In this matter it cannot be said that there are no allegations against the petitioner. This Court would not also examine the genuineness of the allegations since this Court does not function as a Court of Appeal or Revision, while exercising its jurisdiction under Article 226 of the Constitution of India. In this matter it cannot be said that there are no allegations against the petitioner. Apart this, learned counsel for the petitioner could not able to show at this stage that allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the applicant. 14. In view of the aforesaid analysis, the prayer for quashing the FIR is refused. Therefore, this Criminal Writ Petition No.647 of 2021 is dismissed. 15. Since, the investigation is in progress, this Court makes it clear that the observations made earlier are only for the disposal of this application, filed under Article 226 of the Constitution of India. These observations will not influence investigation or the trial.