Allahabad High Court
Kamaldeep And Others vs State Of U.P. And Another on 10 August, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- APPLICATION U/S 482 No. - 9685 of 2021 Applicant :- Kamaldeep And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Lal Mani Singh,Ajay Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Vivek Agarwal,J.
1. Sri Lal Mani Singh, learned counsel for the applicants and Sri Janardan Prakash, learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been filed challenging the entire proceedings of Case No.1930 of 2020 (State vs. Rajendra Singh and Others), arising out of charge sheet dated 21.01.2020 and cognizance order dated 20.02.2020 submitted in Case Crime No.162 of 2016, under Sections 420, 468, 471 IPC, Police Station Kotwali, District Etawah now pending in the court of Chief Judicial Magistrate, Etawah.
3. Learned counsel for the applicants has raised two grounds, namely, on the final report, SP of the District had directed for de-novo investigation, which is against the spirit of the provisions contained in Section 173 Cr.P.C. Secondly, it is submitted that applicants' case is at par with the order dated 15.03.2021 passed in Application U/S 482 No.4502 of 2021.
4. A perusal of the order of co-ordinate Bench of this Court in Application U/S 482 No.4502 of 2021, on which reliance is placed, reads as under:-
"At the very outset, learned counsel for applicants submits that the services of applicants were terminated vide order dated 03.02.2016 passed by District Basic Education Officer, Etawah. The termination order dated 03.02.2016 passed by District Basic Education Officer, Etawah has been challenged by applicants by means of Civil Misc. Writ Petition No.9079 of 2020, which is pending before this Court. On the aforesaid premise, it is thus urged that the findings that shall be retrieved by this Court in above-mentioned writ petition shall have a material bearing in above-mentioned criminal case.
Per contra, learned A.G.A. has opposed this application.
Having heard learned counsel for the parties and upon perusal of record, matter requires consideration.
In view of above, connect this application under Section 482 Cr.P.C. along with Civil Misc. Writ Petition No.9079 of 2020 and placed before appropriate Bench after obtaining nomination from Hon'ble the Chief Justice, if necessary"
5. As far as parity is concerned, learned AGA has pointed out that termination can be challenged in a writ petition but subject matter of the impugned FIR is procurement of employment by the applicants on the post of Assistant Teacher on the basis of fake and forged T.E.T. scores and also certificates of Vishist B.T.C. Learned AGA submits that once charge sheet has been filed, then this issue of investigation can always be questioned when IO is examined and cross-examined and that stage with the filing of the charge sheet and cognizance order has already crossed the stage where any indulgence can be shown and if applicants were aggrieved of this direction of the SSP to carry out investigation de-novo, then he should have challenged this order at the relevant point of time. He also submits that it is not re-investigation, it is further investigation.
6. After hearing learned counsel for the parties and going through the record it is evident that the authenticity of these certificates cannot be tested in a summary writ jurisdiction and has to be determined in a trial where the authenticity can be determined after allowing rival parties to lead evidence especially the authorities who have allegedly issued the score of T.E.T. or mark-sheet of Vishist B.T.C., are examined before the court of law and are subjected to cross-examination by the accused so that correctness or otherwise of these certificates is determined. Since that cannot be done under the writ jurisdiction, there is no parity in the case of the present applicants vis-a-vis that of Vineeta and two Others where this aspect has not been brought to the kind notice of the concerned Bench.
7. It is evident that allegation on the applicants is in regard to procuring employment as Assistant Teacher on the basis of forged and fabricated T.E.T. score card/Vishist B.T.C. mark-sheet. It is true that authenticity of these documents as may be applicable to a particular case or both can be determined during regular trial where parties are allowed to adduce evidence in regard to procurement of these certificates so also the issuance of these certificates by the competent authority. For this purposes, prosecution will have to examine the competent authorities responsible for conducting T.E.T. or issuance of Vishist B.T.C. certificates and the accused-persons will have ample opportunity to cross-examine them so to point out that they had actually appeared in the test and had scored the marks which have been indicated in their T.E.T. score card on the strength of which they had obtained employment as a Assistant Teacher or in the alternative will be required to prove the genuineness of Vishist B.T.C.
8. In absence of any of this being carried out, in my opinion when these aspects cannot be decided in summary writ jurisdiction of this Court, where only order of termination order is under challenge and from the order of the co-ordinate Bench of this Court, it is evident that there is no stay on the order of termination by the competent Bench entitled to hear and decide Civil Misc. Writ Petition No.9079 of 2020, in my opinion, since the subject matter of two litigations are diametrically opposite, one being of a civil nature and another having criminal consequences on the basis of allegation of obtaining appointment on the basis of forged certificates, clubbing of these matters will not help the applicants.
9. As far as issue of re-investigation and further investigation is concerned, that is to be tested during trial inasmuch as police does has right of further investigation under section 173(8) Cr.P.C., but has no right of fresh investigation or re-investigation as has been held in case of Ashish Mani Tripathi vs. State of UP & Others, 2007 (58) ACC 936. It is also to be ascertained that law is quite settled that police cannot embark on the re-investigation on the same facts and materials of the case which was earlier referred as mistake of law and filed charge sheet before another court as has been held in case of Namasivayam vs. State, (1982) CRLJ 707.
10. In case of Gulam Mohiuddin Mir & Others vs. State of J & K, (1989) 1 Crime 608, it is held that further investigation by the police notwithstanding the submission of its report under section 173(2) Cr.P.C. and the fact that the magistrate has already taken cognizance is its statuary right which cannot be interfered with in exercise of inherent powers of the High Court. In case of C. Lohithakshan vs. State of Kerala, 1990 (2) Crimes 382 (KER), it is held that the police enjoys unbridled powers in the matter of investigation and when tested on touchstone of the aforementioned judgements of High Court of J&K and Kerala, it is evident that if further investigation has been carried out, then that cannot be a cause of complaint to the present applicant/accused and that will not be sufficient to invoke inherent powers of the High Court to interfere in the aspect of further investigation. Therefore on this basis also, no ground is made out to interfere in the impugned proceedings.
11. Moreover, it is during the trial only that this fact of obtaining appointment on the basis of genuine or forged documents can be determined, no ground is made out to quash the charge sheet or the consequential proceedings at this stage.
12. Applicants have failed to make any ground for quashing of charge sheet or the consequential proceedings as per law laid down in case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supplementary (1) SCC 335.
13. Therefore, application fails and is dismissed.
Order Date :- 10.8.2021 Ravi/-