Jharkhand High Court
Ashok Kumar Purbe Alias Ashok Kumar ... vs The State Of Jharkhand on 10 February, 2017
Author: S.N. Pathak
Bench: S.N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 943 of 2016
Ashok Kumar Purbe @ Ashok Kumar Purve, son of late Parmeshwar
Purbey, Resident of A/3 Ashadep Apartment at Jorar, P.O. &
P.S.Namkum, DistrictRanchi .... .... .... Petitioner
Versus
The State of Jharkhand .... .... .... Opp. Party
CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
For the Petitioner : Mr. Bhanu Kumar, Advocate
For the State : Mr. Pankaj Kumar, A.P.P.
C.A.V. ON: 14.12.2016 PRONOUNCED ON: 10.02.2017
Invoking the inherent power of this Court under Section
482 of the Code of Criminal Procedure, the petitioner has approached this
Court for quashing of First Information Report dated 26.08.2011
alongwith entire criminal proceeding which has been lodged against the
petitioner under Sections 406, 409, 420, 467, 468 and 471/34 of the
Indian Penal Code in connection with Chhatarpur P.S. Case No.118 of
2011 corresponding to G.R. No.1467 of 2011.
2. The facts, which are relevant in this case, in short, is that an
F.I.R. was lodged on 26.08.2011 against the petitioner at the instance of
one Braj Bhushan Prasad, Para Teacher of upgraded Middle School Jolah
Khap, Chhatarpur, DistrictPalamau who had filed a written complaint
before the Sub Divisional Officer, Chhatarpur, Palamau on 26.08.2011
and the same was forwarded to the OfficerIncharge, Chhatarpur Police
Station by Sub Divisional Officer, Chhatarpur for taking necessary action
into the matter. The prosecution case relates to misappropriation of
government fund in payment of honorarium of parateachers of
Chhatarpur Block wherein it has been alleged that Ramashish Prasad,
Block Education Extension Officer cum Coordinator, Block Resources
Centre, Chhatarpur (ii) Shailesh Kumar Singh, Accountant (iii) Ajeet
Kumar (iv) Abhay Kumar Singh, Para Teacher, Girls Middle School,
Namudag all connived with each other in misappropriation of
government fund relating to payment of honorarium to parateachers by
making inflated payment to non Para Teacher to the tune of several lakhs.
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3. Learned counsel for the petitioner submitted that the
petitioner has not committed any offence and at relevant point of time,
he was posted as District Superintendent of Education Cum District
Programme Officer, Palamau and he being the head of the office of
Elementary Education including Primary and Middle Schools within the
District of Palamau was under a statutory obligation to disburse and sub
allot the funds received by him from the Head Office i.e. State Project
Director, Ranchi under Sarva Shiksha Abhiyan Scheme in the bank
account of all the twelve blocks including Chhatarpur Block in the District
of Palamau. It is further submitted that all the 12 Blocks were having
bank accounts in the joint name of the respective Block Education
Extension Officer and the Accountants and similarly in Chhatarpur Block,
the Bank Account was in the name of Ramashish Prasad, Block Education
Extension Officer and Shailesh Kumar Singh, the Accountant of
Chhatarpur Block and it was the joint responsibility of the Block
Education Extension Officer and the Accountant to make payment of
honorarium to the genuine and working parateachers of the Block after
physical verification of the parateachers concerned on the basis of school
attendance register and other relevant records. Learned counsel for the
petitioner further submitted that the petitioner in the capacity of District
Superintendent of Education cum District Programme Officer, Palamau
exercises his supervisory jurisdiction only and in no case, the petitioner
had any official obligation for directly making payment to any of the
parateachers and, therefore, by no stretch of imagination, this petitioner
had any role in forging of cheques or in making payment to fake persons.
Learned counsel for the petitioner further submitted that the petitioner
had taken all necessary actions against guilty persons prior to lodging of
F.I.R. and therefore there is no connivance on his part and as such no
prima facie case is made out. He further submits that the petitioner has
no connivance or role in misappropriation of funds and as such the
impugned order dated 05.12.2015 is not sustainable in the eye of law
and is fit to be set aside. Learned counsel further submitted that in view
of the aforesaid submissions, the F.I.R. dated 26.08.2011, chargesheet
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dated 06.11.2015 and order taking cognizance dated 05.12.2015
alongwith the entire criminal proceeding should be quashed.
4. Mr. Pankaj Kumar, learned A.P.P. vehemently opposed the
prayer and argued that no ground of malicious prosecution or vengeance
has been brought on record nor the petitioner has been able to discard
prima facie materials against him. He further submitted that there is
direct allegation against the petitioner of misappropriation of funds and
prima facie case is made out against the petitioner and there is sufficient
material against him. Learned A.P.P. submitted that the order taking
cognizance is fully justified and as such the instant application is fit to be
rejected.
5. From the rival contentions of the parties and from the
records of the case, the F.I.R. and the entire criminal proceedings, this
Court is of the view that the same cannot be quashed at this stage.
Section 482 of the Code of Criminal Procedure has to be exercised
sparingly.
The Hon'ble Apex Court in Mosiruddin Munshi v. Mohd. Siraj
& Anr.; (2014) 14 SCC 29 in Para 6 held that:
6. "The legal position with regard to exercise of
jurisdiction by the High Court for quashing the
first informant report is now well settled. It is not
necessary for us to delve deep thereinto as the
propositions of the law have been stated by the
Court in R. Kalyani v. Janak C. Mehta in the
following terms:(SCC p.523, para 15)
"15. Propositions of law which emerge from the
said decisions are:
(1) The High Court ordinarily would not exercise
its inherent jurisdiction to quash a criminal
proceeding and, in particular, a first information
report unless the allegations contained therein,
even if given face value and taken to be correct in
their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except
in very exceptional circumstances, would not look
to any document relied upon by the defence.
(3) Such a power should be exercised very
sparingly, if the allegations made in the FIR
disclose commission of an offence, the Court shall
not go beyond the same and pass an order in
favour of the accused to hold absence of any mens
rea or actus reus.
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(4) If the allegation discloses a civil dispute, the
same by itself may not be a ground to hold that
the criminal proceedings should not be allowed to
continue."
In the case of State of Haryana & Ors. v. Bhajan Lal &
Ors., 1992 Supp (1) SCC 335, the issue fell before the Apex Court as to
when the criminal proceeding can be quashed in exercise of powers
under Section 482 Cr.P.C. The Hon'ble Court held as under in
paragraphs 68, 71 and 103 of the said Judgment:
"68. Mr Chidambaram took a strong objection
stating that these untested allegations are
introduced only to prejudice the court and,
therefore, the court should refrain from
considering these allegations. We may straightway
say that we do not take note of these new
allegations as we are not called upon at this stage
to embark upon an enquiry whether the
allegations in the first information report are
reliable or not and thereupon to render a finding
whether any of the allegations is proved. These are
matters which can be examined only by the
concerned court after the entire materials are
placed before it on a thorough investigation.
71. While Mr Rajinder Sachar and Mr Garg took
much pain to show that the reasons given by the
High Court in respect of each of the instances are
not legally sustainable, Mr Parasaran submitted
a tabular statement by listing out each of
the instances of the alleged corruption indicted in
the complaint, the explanation given in the
writ petition as well as in the counter
affidavit related thereto and the reply in the
rejoinder and urged that the allegations in the
FIR are nothing but a conglomeration of calumny
and falsehood. As the entire matter stands only at
the stage of the registration of the case and the
investigation has not at all proceeded with on
account of the order of stay granted by the High
Court, we do not intend or propose to examine
the truth or otherwise of each of the
instances in snippet form and thereafter string
them together and express any opinion either way,
since in our view any such opinion may affect the
case of either party or cripple the course of
investigation.
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103. We also give a note of caution to the effect
that the power of quashing a criminal proceeding
should be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases; that the court will not be justified
in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and
that the extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the court to act
according to its whim or caprice."
The Hon'ble Apex Court in the case Amanullah v. State of
Bihar;(2016) 6 SCC 699 held as under:
"A careful reading of the material placed on
record reveals that the learned CJM took
cognizance of the offences alleged against the
accused persons after a perusal of the case diary,
chargesheet and other material placed before the
court. The cognizance was taken, as a prima facie
case was made out against the accused persons. It
is well settled that at the stage of taking
cognizance, the court should not get into the
merits of the case made out by the police, in the
chargesheet filed by them, with a view to calculate
the success rate of prosecution in that particular
case. At this stage, the court's duty is limited to the
extent of finding out whether from the material
placed before it, the offence alleged therein against
the accused is made out or not with a view to
proceed further with the case."
The Hon'ble Apex Court in another case Binod Kumar v.
State of Bihar; (2014) 10 SCC 663 held as under:
"In proceedings instituted on the criminal
complaint, exercise of the inherent powers to quash
the proceedings is called for only in case where the
complaint does not disclose any offence or is
frivoulous. It is well settled that the power under
Section 482 CrPC should be sparingly invoked with
circumspection, it should be exercised to see that
the process of law is not abused or misused. The
settled principle of law is that at the stage of
quashing the complaint/FIR, the High Court is not
to embark upon an enquiry as to the probability,
reliability or the genuineness of the allegations
made therein."
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6. Having gone through the rival submissions of the parties
and the documents available on record, I am of the view that no
ground of malicious prosecution or vengeance has been brought on
record nor the petitioner has been able to discard the prima facie
materials against them.
7. In the facts and circumstances of the case and in view of
the settled principles of law, judicial pronouncements discussed above,
I donot find any merit in the instant criminal miscellaneous petition
and accordingly the same stands dismissed. The trial court is at liberty
to proceed further in accordance with law. Petitioner is at liberty to
raise all such points at the appropriate stage.
(Dr. S. N. Pathak, J.)
Jharkhand High Court, Ranchi
Dated, 10th February, 2017
Anit/A.F.R.