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2024 DIGILAW 66 (UTT)

Sandeep Kumar v. State of Uttarakhand

2024-02-12

MANOJ KUMAR TIWARI

body2024
JUDGMENT : Manoj Kumar Tiwari, J. Accused applicant has preferred this Criminal Miscellaneous Application, under Section 482 CrPC, seeking to quash the chargesheet dated 6.2.2023, summoning order dated 22.2.2023 and the entire proceedings of Criminal Case No. 204 of 2023, under Sections 409 and 477-A IPC, pending in the Court of Chief Judicial Magistrate, Pauri Garhwal. 2. Factual matrix giving rise to present petition is that the accused applicant was appointed as Training and Placement Officer (TPO) in Govind Ballabh Pant Institute of Engineering and Technology, Pauri Garhwal on 07.01.2006. Pursuant to an advertisement dated 3.1.2017 for the post of Registrar, applicant applied and he was ultimately selected and appointed as Registrar of the said Institute on 2.12.2019. Vide order dated 19.8.2021, passed by Additional Chief Secretary, Technical Education, applicant was attached with Nanhi Pari Simant Engineering College, Pithoragarh, and charge of Registrar of Govind Ballabh Pant Institute of Engineering and Technology was given to one Dr. Y. Singh on 24.8.2021. Feeling aggrieved, applicant filed WPSB No. 373 of 2021, which was allowed by this Court vide judgment dated 21.9.2021 and relieving/attachment order dated 19.8.2021 was set aside. 3. Meanwhile, on 20.09.2021, Dr. Y. Singh wrote a note to Vice Chancellor that applicant’s selection as Registrar has not been done as per rules and norms and, pursuant to his attachment with Nanhi Pari Simant Engineering College, Pithoragarh, applicant is not handing over documents/records related to recruitment process of the year 2018 & 2019. On 20.9.2021 itself, applicant was placed under suspension and, ultimately, on 19.5.2022, appointment of applicant as Registrar was terminated. 4. In the meantime, on 30.10.2021, an FIR was lodged by respondent no. 2 against the applicant alleging that recruitment process pertaining to the posts of Teachers & Registrar in the year 2018 and 2019 in the G.B. Pant Institute of Engineering and Technology were conducted under the aegis of applicant Sandeep Kumar, who is not handing over the original records pertaining to the said recruitment process and has misappropriated the same due to his personal interest/benefit, and he is absconding with those records from the Institute. Pursuant to the said FIR, a special investigation team was constituted under Senior Superintendent of Police, Pauri Garhwal, and after completion of the investigation, charge-sheet was filed against the applicant for the offences punishable under Sections 409 and 477-A IPC. Pursuant to the said FIR, a special investigation team was constituted under Senior Superintendent of Police, Pauri Garhwal, and after completion of the investigation, charge-sheet was filed against the applicant for the offences punishable under Sections 409 and 477-A IPC. Thereafter, learned Chief Judicial Magistrate, Pauri Garhwal took cognizance of commission of offences, as alleged, against the applicant and, vide order dated 22.2.2023, summoned him to face the trial. Thus, feeling aggrieved, accused applicant filed this petition invoking the inherent power and jurisdiction of this Court under Section 482 CrPC, submitting that the impugned chargesheet, summoning order and the entire criminal proceedings initiated against him are the abuse of the process of law. 5. Heard learned counsel for the parties and perused the material on record. 6. Learned counsel for the accused applicant contended that there is no allegation that applicant falsified any account; necessary ingredients of Section 409 IPC, i.e. entrustment of documents/records and dishonest misappropriation thereof as given in Section 405 IPC, are not attracted in the present case; entire selection process of 2018 & 2019 stood concluded in April, 2019 before applicant’s appointment as Registrar on 2.12.2019; details/list of missing documents are not mentioned in the FIR; no recovery of the allegedly missing documents could be made from the applicant despite search and seizure of his house; charge was handed/taken over by dealing clerks on 27.9.2021 in the absence of applicant; Mr. Y. Singh, officiating Director of the Institute is acting mala fide against applicant; and FIR was lodged by the complainant in collusion with Dr. Y. Singh and Bharat Singh Negi, against whom FIR has been lodged by the applicant. 7. The main thrust of arguments advanced by learned Counsel for the applicant is that the applicant was appointed as Registrar only on 2.12.2019 and thus there was no occasion for him to indulge in recruitment process held in the year 2018 and 2019 and the entire proceedings against the applicant is mala fide and initiated at the behest of Dr. Y. Singh, officiating Director of the Institute. 8. Per contra, learned State Counsel contended that it is the admitted case of the applicant that he did not hand over the charge to his successor in pursuance of his relieving/attachment order dated 19.8.2021 and there are clinching evidence, including documentary evidence, against the applicant. Y. Singh, officiating Director of the Institute. 8. Per contra, learned State Counsel contended that it is the admitted case of the applicant that he did not hand over the charge to his successor in pursuance of his relieving/attachment order dated 19.8.2021 and there are clinching evidence, including documentary evidence, against the applicant. Learned State Counsel further contended that documents pertaining to aforesaid recruitment process are missing while in custody of the applicant and the presumption goes against him that he destroyed/misappropriated the same for his personal benefit/interest in violation of legal contract/direction, making out a specific case for being prosecuted for the offence punishable under Section 409 IPC. Learned State Counsel further contended that applicant, in the present petition under Section 482 CrPC, is agitating disputed questions of fact, which is not permissible in law. 9. Learned Counsel for the informant/respondent no. 2 contended that it is not the case of the applicant that he joined the Institute only on 2.12.2019 inasmuch as he was working in the Institute as Training and Placement Officer since 7.1.2006 and was unauthorizedly/illegally involved in the recruitment process of faculty members and Registrar held in 2018 and 2019 and there are documentary proofs to substantiate the same. Learned Counsel for the respondent no. 2 further argued that Registrar is the custodian of all records of the Institute and, therefore, all documents related to the said recruitments, including the documents pertaining to his own selection as Registrar, were entrusted to him and the same is also corroborated by the fact that some documents related to said recruitments were submitted by the applicant before this Court pursuant to order dated 19.5.2021, passed in WPSB No. 121/2020 relating to same recruitment process, preferred by one Mohd. Mursleen. Learned Counsel for the informant/respondent no. 2 further argued that chargesheet has already been filed and the applicant has also been summoned and questions of disputed facts are to be adjudicated, which can be done only in a trial and not in the jurisdiction under Section 482 CrPC. 10. Having heard the rival contentions and on perusal of papers on record, the Court is of the view that the FIR read with the chargesheet prima facie discloses commission of offence by the accused applicant and, therefore, any interference by this Court at this stage is unwarranted. 10. Having heard the rival contentions and on perusal of papers on record, the Court is of the view that the FIR read with the chargesheet prima facie discloses commission of offence by the accused applicant and, therefore, any interference by this Court at this stage is unwarranted. Though complete hands-off approach is not recommended, but when there is prima facie disclosure of commission of the alleged offences by the accused person, it would be improper to bring the prosecution case to a sudden death. Much stress has been led on the argument that the entire impugned proceedings against the applicant is mala fide and have been initiated on account of enmity and rivalry prevailing in the Institute, but that is something which relates to defence of the accused, which cannot be considered at this stage while exercising extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure. 11. The law is well settled that when a prosecution, at the initial stage is sought to be quashed, the principle to be applied by the court is whether uncontroverted allegations, as made, prima facie establish the offence. Even the presumptive opinion as to the existence of the factual ingredients constituting the offence alleged is sufficient to proceed with trial against the accused. The evidence, which the prosecution proposes to adduce, are not to be meticulously judged at this stage. This position of law has held the field since long and it is so even today, as can be seen from many judgments of the Hon’ble Supreme Court, some of which are in the cases of (i) Inder Mohan Goswami & Another v. State of Uttaranchal & others, (2008) 1 SCC (Cri) 259; (ii) State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 ; (iii) Ashabai Machindra Adhagale Vs. State of Maharashtra, 2009 (1) Crimes 304 (SC); (iv) Prashant Bharti v. State of NCT of Delhi, (2013) 9 SCC 293 . 12. For the reasons aforesaid, the Court is of the view that this is not a case wherein it could be said that even upon taking all the allegations made against the accused applicant at their face value and by accepting them as they are, no prima facie case is made out against the accused applicant and that would mean that this is not a fit case for quashing and setting aside the criminal proceedings. Consequently, I find no merit in this C482 petition. It stands dismissed. Interim order stands vacated. 13. It is made clear that any observation made by this Court is only for the purpose of deciding this C482 petition and the same shall not prejudice the trial against the accused applicants.