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2023 DIGILAW 863 (JHR)

Deepak Kumar Jha v. State of Jharkhand

2023-07-12

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : Heard Mr. Prashant Pallava, the learned counsel appearing on behalf of the petitioner and Md. Asghar, the learned counsel appearing on behalf of the respondent State. 2. This petition has been filed for quashing of the order dated 06.07.2018 passed in G.R. Case No.501 of 2014 in connection with Dumka Nagar P.S.Case No.98 of 2014 dated 11.4.2014, pending before the learned Chief Judicial Magistrate, Dumka. The prayer is also made for quashing of the entire criminal proceeding arising out of the said P.S.Case. 3. The F.I.R. has been registered alleging therein that the case of the Respondent No. 2 as alleged in the F.I.R. bearing Dumka Nagar P.S. Case No. 98 of 2014 dated 11th of April 2014 is as under:- a. That F.I.R. bearing Dumka Nagar P.S. Case No. 98 of2014 dated 11th of April 2014 was registered against the Petitioner under Section 409, 420, 120B and 177 of the Indian Penal Code. The case of the Respondent No. 2 is that the Managing Director of the Dumka Central Co-Operative Bank Limited, Dumka (during the period from 27th of June 2005 till 1st of July 2008) had misinformed the Bank and on the basis of that the Bank invested in U.T.I. through the agent of U.T.I., partner of Great India Insurance Service. It is alleged that the Bank had invested through the agent of U.T.I. Rs.3,00,00,000/- (INR Three Crores Only) on 24th of December 2007 and Rs. 3,50,00,000/- (INR Three Crores and Fifty Lakhs Only) on 9th of March 2008 in U.T.I. Infrastructure Fund and U.T.I. Long Term Advantage Fund respectively. Altogether Rs.6,50,00,000/- (INR Six Crores Fifty Lakhs Only) was invested for which the agent of U.T.I. had received a commission of Rs. 36,77,748.48/- (INR Thirty Six Lakhs Seventy Seven Thousand Seven Hundred and Forty Eight and Forty Eight Paise Only) as commission. It is further alleged that because of the said investment the Bank suffered a loss of Rs. 1,10,73,964/- (One Crore Ten Lakhs Seventy Three Thousand Nine Hundred and Sixty Four Only). The Informant alleged that in the departmental enquiry against the Managing Director, the authorities recommended that F.I.R. be lodged against him. It was alleged that the investment would have been made in fixed deposit the same would have yielded better profit. In view of the said facts, FIR was lodged against the distributor of the UTI i.e. the petitioner. The Informant alleged that in the departmental enquiry against the Managing Director, the authorities recommended that F.I.R. be lodged against him. It was alleged that the investment would have been made in fixed deposit the same would have yielded better profit. In view of the said facts, FIR was lodged against the distributor of the UTI i.e. the petitioner. b. That pursuant to the investigation, Chargesheet was submitted on 21.2.2015 against the petitioner under section 409, 420, 120B and 177 of the IPC. c. That the learned court of Chief Judicial Magistrate, Dumka vide order dated 7.5.2015 was pleased to take cognizance against the petitioner under section 409, 420, 120B and 177 of the IPC. 4. Mr. Pallava, the learned counsel appearing on behalf of the petitioner submits that pursuant to that F.I.R and investigation, the charge sheet has been submitted on 21.02.2015 against the petitioner under section 409, 420, 120B, 177 of the IPC. He submits that the learned court has been pleased to take cognizance against the petitioner by order dated 07.05.2015. He further submits that the petitioner is a partner of Great India Insurance Services which was registered in April, 2004 and he was the authorized distributor of U.T.I. By way of placing the contents of the FIR, he submits that Dumka Central Cooperative Bank has decided to invest the amount of Rs.3 crores and Rs.3.50 crores, respectively in two schemes of the U.T.I and the allegation if any is made out against one Syed Hafizul Hassan, the then managing director of the said bank. He submits that the petitioner is only acted as agent of the U.T.I. and in view of that, no criminality is made out against the petitioner. On this ground, he submits that the entire criminal proceeding may kindly be quashed. He further submits that in view of U.T.I Infrastructure Advantage Fund Series –I and in view of Clause-F of Clause-6 the bank including a scheduled bank, regional rural bank and cooperative bank are entitled to invest in the Advantage fund. He submits that the bank has decided and that is why the said amount was invested and there is no role of this petitioner and hence the entire criminal proceeding may kindly be quashed. 5. On the other hand, Md. He submits that the bank has decided and that is why the said amount was invested and there is no role of this petitioner and hence the entire criminal proceeding may kindly be quashed. 5. On the other hand, Md. Asghar, the learned counsel appearing on behalf of the respondent State submits that the petitioner has earlier moved before this Court in Cr.M.P.No.1230 of 2014 and the said Syed Hafizul Hassan also challenged the order in Cr.M.P. No.1199 of 2014 and both the petitions have been heard together on 28.4.2023 and on that day in presence of the counsel appearing for the respondent Bank the petitioner has withdrawn that Cr.M.P with liberty to take appropriate recourse. He submits that the allegations are there and at this stage this Court may not quash the proceeding. He further submits that the petitioner has earlier moved before this Court in A.B.A. No.2792 of 2014 in which the petitioner was granted anticipatory bail and direction was issued to either on arrest or surrender he will be enlarged on anticipatory bail. He submits that the petitioner has not appeared and inspite of that the matter was kept pending for his appearance. He submits that now at belated stage, he petitioner has come forward for quashing of the entire criminal proceeding and on those grounds, the case is not fit to be entertained. 6. In view of the above facts and the submission of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record including the contents of the FIR and finds that there are allegations that the then Managing Director namely, Syed Hafizul Hassan without having the sanction of the higher authorities has invested a sum of Rs.3 crores and Rs.3.50 crores in the U.T.I for personal gain and the petitioner being the agent of U.T.I has received a sum of Rs.36,77,748.48 as commission. Thus, it transpires that the role of the petitioner cannot be ruled out in the investment of Rs.6.50 crores as he has received a sum of Rs.36,77,748.48 as commission. Further the Court finds that the petitioner was granted anticipatory bail by this Court in A.B.A. No.2792 of 2014 which was allowed by the order dated 03.11.2014 and inspite of that direction the petitioner has not appeared before the learned court and the matter was kept pending. Further the Court finds that the petitioner was granted anticipatory bail by this Court in A.B.A. No.2792 of 2014 which was allowed by the order dated 03.11.2014 and inspite of that direction the petitioner has not appeared before the learned court and the matter was kept pending. It appears that in Cr.M.P.No.1230 of 2014 interim protection was provided to the petitioner later on, however, the said petition was dismissed as withdrawn on 28.4.2023. The High Court is not required to look into the affidavits filed and the documents produced before it by the petitioner or accused as evidence for quashing of the proceeding. It is well settled that the prosecution at its inception by going into merits in a pre-trial on consideration of the affidavits and documents which unless proved to be true and reliable in regular trial, cannot form the basis of any decision regarding commission of offence. At a stage when the police report under section 173 Cr.P.C has been forwarded to the Magistrate after completion of the investigation and the material collected by the investigating officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings in exercise of its inherent jurisdiction. Expeditious trial of a criminal case is the cardinal rule; delay feeds injustice to social order and entertaining the writ petitions would encourage delaying the trial. Reference may be made to the case of State of Bihar and Another v. P.P. Sharma, I.A.S and Another, reported in, 1992 (Suppl.) 1 SCC 222, wherein at paragraph no.16, 20, 31, 33 and 68 it is held as under: “16. It is thus obvious that ‘the annexures’ were neither part of the police reports nor were relied upon by the Investigating Officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating ‘the annexures’ and affidavits as evidence and by converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. The least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon “the annexures” in support of its findings, we may briefly examine these documents. 20. We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record. We have quoted “the annexures”, the inferences drawn by the High Court and the factual assessment of Mr Sibal, only to show that the High Court fell into grave error in appreciating the documents produced by the respondents along with the writ petitions and further delving into disputed questions of facts in its jurisdiction under Article 226/227 of the Constitution of India. 31. Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of cognisance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders. 33. The above order was brought to the notice of the Patna High Court but the High Court refused to be persuaded to adopt the same course. We are of the considered view that at a stage when the police report under Section 173 CrPC has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. We could have set aside the High Court judgment on this ground alone but elaborate argument having been addressed by the learned counsel for the parties we thought it proper to deal with all the aspects of the case. 68. We could have set aside the High Court judgment on this ground alone but elaborate argument having been addressed by the learned counsel for the parties we thought it proper to deal with all the aspects of the case. 68. Another crucial question is whether the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, would interfere and quash the charge-sheet. The High Court found that the documents relied on by the respondents/accused were not denied by the State by filing the counter-affidavit. Therefore, they must be deemed to have been admitted. On that premise the High Court found that no prima facie case was made out on merits and chances of ultimate conviction is “bleak”. The court is not passive spectator in the drama of illegalities and injustice. The inherent power of the court under Article 226 of the Constitution of India is permitted to be resorted to. When the documents relied on by the respondents “demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed”, and “in such a situation and circumstances the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approached this Court and this Court in these circumstances has no option but to grant the relief by quashing the FIR and both the charge-sheets”. Accordingly it quashed them. If this decision is upheld, in my considered view startling and disastrous consequence would ensue. Quashing the charge-sheet even before cognizance is taken by a criminal court amounts to “killing a stillborn child”. Till the criminal court takes cognizance of the offence there is no criminal proceedings pending. I am not allowing the appeals on the ground that alternative remedies provided by the Code as a bar. It may be relevant in an appropriate case. My view is that entertaining the writ petitions against charge-sheet and considering the matter on merit in the guise of prima facie evidence to stand an accused for trial amounts to pretrial of a criminal trial under Article 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence. Once the proceedings are entertained the further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule. Once the proceedings are entertained the further proceedings get stayed. Expeditious trial of a criminal case is the cardinal rule. Delay feeds injustice to social order and entertaining writ petitions would encourage to delay the trial by diverse tricks. It is not to suggest that under no circumstances a writ petition should be entertained. As was rightly done by Rajasthan High Court in this case at the instance of the directors of the company, wisdom lies to keep the hands back and relegate the accused to pursue the remedy under the Code. In several cases this Court quashed the criminal proceedings on the sole ground of delay. In a case FIR filed in 1954 for violation of the provisions of the Customs Act and Foreign Exchange Regulation Act was challenged in the Allahabad High Court. It was deliberately kept pending in the High Court and in this Court till 1990. The accusation was violation of law by named persons in the name of non-existing firm. The FIR was quashed in the year 1990 by another Bench of which I was a member solely on the ground of delay. He achieved his object of avoiding punishment. This would show that an accused with a view to delay the trial, resorts to writ proceedings, raises several contentions including one on merit as vehemently persisted by Sri Jain to consider this case on merits and have the proceedings kept pending. The result would be that the people would lose faith in the efficacy of rule of law. Documents relied on by the respondents are subject to proof at the trial and relevancy. If proved to be true and relevant then they may serve as a defence for the respondents at the trial. The State quite legitimately and in my view rightly did not choose to file the counter-affidavit denying or contradicting the version of the respondents, in those documents. The commission of offence cannot be decided on affidavit evidence. The High Court has taken short course “in annihilating the still born prosecution” by going into the merits on the plea of proof of prima facie case and adverted to those facts and gave findings on merits. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. After the charge-sheet was filed, the FIR no longer remains sheet-anchor. Grossest error of law has been committed by the High Court in making pre-trial of a criminal case in exercising its extraordinary jurisdiction under Article 226. After the charge-sheet was filed, the FIR no longer remains sheet-anchor. The chargesheet and the evidence placed in support thereof form the base to take or refuse to take cognizance by the competent court. It is not the case that no offence has been made out in the charge-sheets and the first information report. It is, therefore, not necessary to consider all the decisions dealing with the scope of the power of the High Court either under Section 482 CrPC or Article 226 of the Constitution to quash the first information report.” 7. In view of the above facts, reasons and analysis, the Court comes to the conclusion that there are allegations against the petitioner of taking a sum of Rs.36,77,448.48 as commission in connivance with the then Managing Director of Dumka Central Cooperative Bank and that is why section 120B of the IPC is added in the FIR. No case of interference is made out. 8. Accordingly, W.P.(Cr.) No.336 of 2023 is dismissed. 9. The petitioner has come in different petitions before this Court from the very inception of the F.I.R. However, the trial will proceed in accordance with law without being prejudiced by this order. 10. Pending petition if any also stands dismissed accordingly.