Jharkhand High Court
Binay Prasad vs The State Of Jharkhand on 20 October, 2021
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- Cr.M.P. No. 3897 of 2018
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3897 of 2018
Binay Prasad, aged about 48 years, son of Sri Bhuneshwar Prasad,
resident of Village Nagwan, Post & Police Station Chatra, District
Chatra, Jharkhand
... Petitioner
-Versus-
1. The State of Jharkhand
2. Sri Lalit Ram, Pariyojjna Arthshastri, Zila Gramin Vikash Abhikaran,
Chatra, [the informant in Chatra P.S. Case No.94/2012 (G.R
441/2012)]
3. Sri Dhananjay Kumar Srivastava, the Officer in-charge, Sadar, P.S.
Chatra, District- Chatra, [the investigating officer in Chatra P.S. Case
No.94/2012 (G.R 441/2012)], P.O. & P.S. Chatra, District- Chatra
... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Krishna Murari, Advocate For the Opposite Party-State : Mr. Ashok Kumar, A.P.P.
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04/20.10.2021. Heard Mr. Krishna Murari, learned counsel for the petitioner and Mr. Ashok Kumar, learned A.P.P. for the opposite party-State.
2. This criminal miscellaneous petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. This petition has been filed for quashing the F.I.R. in connection with Sadar Chatra P.S. Case No.94/2012 (G.R.441/2012) dated 22.05.2012, which was registered under Sections 406/409/120(B) of the Indian Penal Code.
4. The F.I.R. was lodged by one Lalit Ram, Pariyojna Arth Shastri of Zila Gramin Vikash Abhikran Chatra, stating therein that under MGNREGA -2- Cr.M.P. No. 3897 of 2018 Projects, the Welfare Point and Prerna Niketan were respectively given by way of advance of Rs.4 Crores and Rs.2 Crores respectively in the year 2008 for execution of the projects. It was further stated by the informant in the F.I.R. that the complaints were made against those two non-Governmental organizations i.e. Welfare Point and Prerna Niketan, an enquiry was conducted which revealed that Welfare Point had done project work of 122 projects out of 184 projects (Clusters), while Prerna Niketan had done project work of 83 projects out of 573 projects, allotted to them. The work performance was examined and it was found that the Welfare Point had shown to have done work for the value of Rs.56.91 Lakhs only while the Enquiry Committee found the work done was only of the value of Rs.34.57 Lakhs done. As such the informant alleged that the Welfare Point has embezzled an amount of Rs.22.34 Lakh only. Similarly, Prerna Niketan has shown to have done the project work for the value of Rs.79.67 Lakh while the Enquiry Committee found that only work of the value of Rs.11.69 Lakh have been performed by Prerna Niketan. Thus, Rs.67.98 Lakhs have been defalcated by Prerna Niketan. It was further stated by the informant that according to the assessment of work done by the Enquiry Committee, as stated above the Welfare Point was sanctioned work of total 184 Cluster under 702 projects. The enquiry report has been submitted of the work of only 414 clusters (project) and the work has been valued after measurement to have been done for the value of Rs.2,26,36,591/- and accordingly found entry by the officials in the measurement book, but the Enquiry Committee assessed the work to have been done only to the value of Rs.1,63,51,469/-. Thus, the enquiry committee concluded that a sum of Rs.62,85,122/- has been defalcated by the Welfare Point. -3- Cr.M.P. No. 3897 of 2018
5. Mr. Krishna Murari, learned counsel for the petitioner submits that no ingredients of Sections are being made out against the petitioner/N.G.O. and in spite of that the F.I.R. has been lodged against the petitioner/N.G.O. He further submits that the work was done in the year 2008 and the F.I.R. was lodged in the year 2012. According to him, the work was executed and only difference amount of 20%-30% came in the measurement. He also submits that the petitioner is the Secretary of the Society in question and the Society is the Corporate body and the said Society is not arrayed as accused and in view of non-arraying of the Society as accused, the F.I.R. itself is bad in law. To buttress this argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Asoke Basak v. State of Maharashtra & Ors., reported in (2010) 10 SCC 660.
6. Paragraphs 21, 22 and 26 of the said judgment are quoted herein below:
"21. It is plain that for constituting an offence of criminal breach of trust, the following ingredients must be satisfied:
(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
22. In the instant case, we are unable to gather from the complaint any averment which may suggest that Rs. 5 lakhs was entrusted to the appellant, either in his personal capacity or as the Chairman of MSEB and that he misappropriated it for his own use. The basis of the allegation is that the appellant had caused MSEB to refuse return of the money to the complainant in order to wilfully and dishonestly deprive the complainant of its use. In this regard, it would be useful to refer to the following observations in S.K. Alagh case: (SCC p. 667, para 19) "19. As, admittedly, drafts were drawn in the name of the Company, even if the appellant was its Managing -4- Cr.M.P. No. 3897 of 2018 Director, he cannot be said to have committed an offence under Section 406 of the Penal Code. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a company or an employee cannot be held to be vicariously liable for any offence committed by the company itself."
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26. Thus, in order to attract Section 34 IPC, the complaint in question must, prima facie, reflect a common prior concert or planning amongst the appellant and other accused. Having carefully gone through the complaint, we are of the view that it does not reveal any preconcert or preplanning whereby all the accused had decided to misappropriate the said amount. It is pertinent to note that MSEB, in whose coffers the said amount was credited, has not been arraigned as an accused in the complaint. Be that as it may, having come to the conclusion that the ingredients of Section 409 IPC are not satisfied against the appellant, the question of his acting in concert with others does not arise. We are, therefore, convinced that Section 34 IPC is not attracted against the appellant."
7. Learned counsel for the petitioner further submits that after four years of the aforesaid execution of the work and corresponding payments thereof on the basis of entry of works made in the measurement book certified up to the Executive Engineer, another Engineers were entrusted for cross verification of the work vide letter dated 17.09.2011 and on the basis of their physical finding after four years but without taking their depreciation factor/natural erosion into consideration, the F.I.R. has been lodged. He repeated his argument by way of relying upon the judgment rendered by the Hon'ble Supreme Court in the case of Sushil Sethi & anr. v. State of Arunachal Pradesh & ors. , reported in (2020) 3 SCC 240 and submits that the Society has not been arrayed as an accused and in view of the Sushil Sethi case, no vicarious liability can be fastened upon the petitioner.
8. Paragraph 8.2 of the said judgment is quoted herein below: -5- Cr.M.P. No. 3897 of 2018
"8.2. It is also required to be noted that the main allegations can be said to be against the company. The company has not been made a party. The allegations are restricted to the Managing Director and the Director of the company respectively. There are no specific allegations against the Managing Director or even the Director. There are no allegations to constitute the vicarious liability. In Maksud Saiyed v. State of Gujarat13, it is observed and held by this Court that the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company when the accused is the company. It is further observed and held that the vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further observed that the statute indisputably must contain provision fixing such vicarious liabilities. It is further observed that even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. In the present case, there are no such specific allegations against the appellants being Managing Director or the Director of the company respectively. Under the circumstances also, the impugned criminal proceedings are required to be quashed and set aside."
9. Learned counsel for the petitioner further submits that this Court sitting under Section 482 Cr.P.C. can exercise its power at any stage of the proceeding, which has been held by the Hon'ble Supreme Court in the case of Dhariwal Tobacco Products Limited & ors. v. State of Maharashtra & anr., reported in (2009) 2 SCC 370.
10. Paragraphs 10 and 11 of the said judgment are quoted herein below:
"10. We may notice that in G. Sagar Suri v. State of U.P. this Court has held: (SCC pp. 642-43, paras 7-8) "7. It was submitted by Mr Lalit, learned counsel for the second respondent that the appellants have already filed an application in the Court of Additional Judicial Magistrate for their discharge and that this Court should not interfere in the criminal proceedings which are at the threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection, reference may be made to two decisions of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate and Ashok Chaturvedi v. Shitul H. Chanchani wherein it has been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless but that does -6- Cr.M.P. No. 3897 of 2018 not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.
8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
This Court therein noticed a large number of decisions to opine that whenever the High Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so.
11. We may furthermore notice that in CBI v. Ravi Shankar Srivastava this Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, held: (SCC pp. 193-94, para 7) "7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of -7- Cr.M.P. No. 3897 of 2018 administration of justice on the principle 'quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest' (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
11. On these premises, learned counsel for the petitioner submits that this Court may exercise its power as the lodging of the F.I.R. itself is bad in law.
12. Mr. Ashok Kumar, learned A.P.P. appearing for the State submits that there is allegation against the petitioner of defalcating huge amount of MGNREGA. He further submits that the charge-sheet has already been submitted, cognizance has been taken and witnesses are being examined and at this stage, this Court may not interfere as the submissions of the learned counsel for the petitioner are the subject matter of trial. He also submits that the petitioner has earlier moved A.B.A. No.264 of 2012 and A.B.A. No.956 of 2017 for grant of anticipatory bail, which have been rejected on merits by this Court vide orders dated 21.11.2012 and -8- Cr.M.P. No. 3897 of 2018 19.09.2017 respectively. He further submits that there are materials in the case diary particularly in paragraphs 41, 43, 62, 63 and 252 against the petitioner.
13. In light of the above submissions of the learned counsel for the petitioner as well as learned A.P.P. appearing for the State, the Court has perused the F.I.R. In the F.I.R., there is allegation of defalcation of huge amount by the N.G.O. in question, registered under the Society Act and the petitioner is said to be the Secretary of the said N.G.O. In the F.I.R., there is allegation against the petitioner about the defalcation of the Government money. It is anathema to say that in absence of the society not made accused the criminal proceeding will not proceed against the petitioner. The allegations are there against the petitioner. Moreover, the facts are very hazy, at this stage before this Court. The charge has already been framed and the cognizance has been taken, which are not under challenge in this petition. The trial is pending for evidence. A reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Shiv Kumar Jatia v. State (NCT of Delhi) , reported in (2019) 17 SCC 193. Paragraphs 19 and 21 of the said judgment are quoted herein below:
"19. The liability of the Directors/the controlling authorities of company, in a corporate criminal liability is elaborately considered by this Court in Sunil Bharti Mittal. In the aforesaid case, while considering the circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person, this Court has held, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. At the same time it is observed that it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides for. It is further held by this -9- Cr.M.P. No. 3897 of 2018 Court, an individual who has perpetrated the commission of an offence on behalf of the company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Further it is also held that an individual can be implicated in those cases where statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.
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21. By applying the ratio laid down by this Court in Sunil Bharti Mittal it is clear that an individual either as a Director or a Managing Director or Chairman of the company can be made an accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accused. Further in Maksud Saiyed v. State of Gujarat this Court has examined the vicarious liability of Directors for the charges levelled against the Company. In the aforesaid judgment this Court has held that, the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company, when the accused is a company. It is held that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. It is further held that statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability."
14. In the judgment relied by the learned counsel for the petitioner in the case of Sushil Sethi (supra), the Hon'ble Supreme Court has considered about non-arraying of Company in view of the fact of that the dispute was with regard to payment of maintenance by the respondents and the project in that case has already been completed. The facts of that case is not here in the case in hand, which has been argued by the learned counsel for the petitioner. The allegation against the petitioner/N.G.O. is serious in nature, wherein, defalcation of Government money has been made. Thus, this judgment is not helping the petitioner.
15. In the judgment relied by the learned counsel for the petitioner in the case of Dhariwal Tobacco Products Limited (supra), it is well settled principle of law that the High Court in particular facts and circumstances of the case, -10- Cr.M.P. No. 3897 of 2018 can exercise its power under Section 482 Cr.P.C. at any stage. In paragraph 10 of the said judgment, on which the learned counsel for the petitioner is relying, the Hon'ble Supreme Court has also observed that whenever the High Court comes to a conclusion that allowing the proceeding to continue would be an abuse of the process of court and that the ends of justice require that the proceedings should be quashed. In the case in hand, there is allegation of defalcation of Government money on behalf of the petitioner. Thus, the judgment relied by the learned counsel for the petitioner is not helping the petitioner in the facts and the allegations against the petitioner/N.G.O.
16. In the judgment relied by the learned counsel for the petitioner in the case of Asoke Basak (supra), the Hon'ble Supreme Court has come to the conclusion that the money deposited has not been dishonestly converted by the petitioner of that case and in that view of the matter, power has been exercised by the Hon'ble Supreme Court. In the case in hand, there is allegation against the petitioner/N.G.O. of huge defalcation to the tune of Rs.62,85,122/-.
17. It is the function of the trial court to examine those aspects of the matter, which has been argued by the learned counsel for the petitioner. In the case in hand, the entire facts are incomplete and hazy. More so, when the evidence are not collected and produced before the court and the issue involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and- fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This has been considered by the Hon'ble Supreme Court in the case -11- Cr.M.P. No. 3897 of 2018 of State of M.P. v. Awadh Kishore Gupta , reported in (2004) 1 SCC
691. Paragraphs 10 and 11 of the said judgment are quoted herein below:
"10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows:
"(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.
(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 -12- Cr.M.P. No. 3897 of 2018 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides 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."
11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard- and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary and Raghubir Saran (Dr) v. State of Bihar) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the -13- Cr.M.P. No. 3897 of 2018 material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur v. State (Govt. of NCT of Delhi) and Rajesh Bajaj v. State NCT of Delhi."
18. A reference may also be made to the judgments rendered by the Hon'ble Supreme Court in the case of V.Y. Jose v. State of Gujarat , reported in (2009) 3 SCC 78 and Harshendra Kumar D. v. Rebatilata Koley, reported in (2011) 3 SCC 351 and all these aspects have been considered by the Hon'ble Supreme Court in the case of C.P. Subhash v. Inspector of Police, Chennai & Ors., reported in (2013) 11 SCC 559.
19. As a cumulative effect of the aforesaid facts, only the F.I.R. is under challenge before this Court and the charge-sheet has already been submitted and cognizance has been taken, which are not challenged before this Court. Hence, no case of interference is made out.
20. Accordingly, this criminal miscellaneous petition stands dismissed.
(Sanjay Kumar Dwivedi, J.) Ajay/