Uttarakhand High Court
Kamla Bisht And Others ... vs State Of Uttarakhand And Another on 20 March, 2020
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 2730 of 2019
Kamla Bisht and others ......Petitioners
Vs.
State of Uttarakhand and another ....Respondents
Mr. Rajendra Kotiyal, Advocate assisted by Mr. Ravi Joshi, Advocate for the
petitioners.
Mr. S.S. Adhikari, A.G.A with Mr. P.S. Uniyal, Brief Holder for the State.
Mr. V.K. Kapruwan, Advocate for respondent no.2.
Hon'ble Ravindra Maithani, J.
The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed by the petitioners for quashing the summoning order dated 08.11 2019 in Criminal Case No. 1166 of 2019, State Vs. Kamla Bisht and others (for short "the case") by the court of learned Chief Judicial Magistrate Almora.
2. Heard learned counsel for parties and perused the records.
3. By the impugned summoning order the petitioners have been summoned under Sections, 420, 467, 468, 471 and 120-B IPC
4. Facts necessary to decide this controversy, which in a very short span are as hereunder:-
National Cadet Corps, Almora (for short "NCC") had organized an annual camp from 01.06.2017 to 10.06.2017 at Jawahar Navodaya Vidyalaya, Tarikhet. In that camp, petitioner no.3 Akshita Bisht participated as a NCC candidate of SSJ Campus, Almora. Petitioner no.3 Akshita Bisht was not a student of SSJ Campus, Almora. Petitioner no.1 Kamla Bisht is the aunt of petitioner no.3 Ankita Bisht and was working in 2 the NCC office. Petitioner no.2 Akeel Mohd. Khan was a training clerk with the NCC. According to the case, they both manipulated with the nominal roll and illegally on the basis of forged documents got the petitioner no.3 Akshita Bisht participated in the annual camp. The Department of NCC conducted a preliminary enquiry and after the enquiry the respondent no.2 Subedar Major Rajpal Singh filed an FIR. It is this FIR in which, after investigation, charge-sheet under Sections 420, 467, 468, 471 and 120-B IPC has been filed against the petitioners and the proceedings of the case instituted. On 08.11.2019, cognizance was taken and petitioners have been summoned, as stated hereinbefore. Aggrieved, the instant petition.
5. Learned counsel for the petitioners would submit that by participating in the annual camp organized by NCC, petitioner no. 3 Akshita Bisht did not gain anything and nobody has incurred any loss; the expenses, which the department incurred on petitioner no.3 Akshita Bisht had been recovered by the Department. It is argued that petitioner no.1 Kamla Bisht filed a writ petition in the High Court relating to her service matter, in which, the Commanding Officer of concerned NCC wing is a party. Therefore, as a counter-blast, an FIR in the instant case has been filed. Reference has also been made to Rule 10 of the National Cadet Corps Rules 1948 to argue that if the Commanding Officer had come to know at the beginning of the annual camp that petitioner no.3 Akshita Bisht is not a student of SSJ Campus Almora, the Commanding Officer would not have allowed her to participate in the annual camp and the entire controversy would have stayed there at. But, it is argued that the Commanding Officer did not stop petitioner no.3 and the FIR was filed without conducting complete enquiry as required under Para 72 of the Manual of Government Orders Uttar Pradesh. It is also argued that no case of manipulation is made out and an interference is warranted in the matter.
6. Learned counsel for the petitioners has also referred to the statements of the witnesses recorded under Section 161 of the Code and other documents.
37. On the other hand, on behalf of the State, it is argued that the case is made out against the petitioners. Learned State counsel would refer to the enquiry conducted by the Department of NCC.
8. This is a petition under Section 482 of the Code. The jurisdiction is too wide but much restricted by the guidelines laid down in various cases. If a prima-facie, case is made out, no interference is warranted in these proceedings.
9. Undoubtedly, if the prosecution is barred by any provision of law, the court is always empowered to make an interference. It is also settled that meticulous examination of material is not required at this stage.
10. In the case of Indian Oil Corporation Vs. NEPC India Ltd. and others, (2006) 6 SCC 736 in Para No. 12 of it, Hon'ble Court has held as hereunder:-
"The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre1, State of Haryana v. Bhajanlal2, Rupan Deol Bajaj v. Kanwar Pal Singh Gill3, Central Bureau of Investigation v. Duncans Agro Industries Ltd.4, State of Bihar v. Rajendra Agrawalla5, Rajesh Bajaj v. State NCT of Delhi6, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.7 Hridaya Ranjan Prasad Verma v. State of Bihar8, M. Krishnan v. Vijay Singh9 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque10. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
1. (1988) 1 SCC 692 : 1988 SCC (Cri) 234
2. 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426
3. (1995) 6 SCC 194 : 1995 SCC (Cri) 1059
4. (1996) 5 SCC 591 : 1996 SCC (Cri) 1045
5. (1996) 8 SCC 164 : 1996 SCC (Cri) 628
6. (1999) 3 SCC 259 : 1999 SCC (Cri) 401
7. (2000) 3 SCC 269 : 2000 SCC (Cri) 615
8. (2000) 4 SCC 168 : 2000 SCC (Cri) 786
9. (2001) 8 SCC 645 : 2002 SCC (Cri) 19
10. (2005) 1 SCC 122 : 2005 SCC (Cri) 283 4
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
11. It is admitted that the date, when petitioner no.3 Akshita Bisht participated in the annual camp, she was not a student of SSJ Campus, Almora and it is also a fact that she participated in the annual camp. Reference has been made by the learned counsel for the petitioners to Rule 10 of the National Cadet Corps Rules, which is as hereunder:-
"10. Rejection.- If the Commanding Officer or the Headmaster is not satisfied that the application is in order or that the applicant fulfils the conditions of enrolment or that he is suitable to be enrolled in the unit or part thereof or the applicant is reported to be medically unfit for service in the National Cadet Corps, the Commanding Officer or the Headmaster shall reject the application and shall inform the application accordingly."
12. Reference has also been made by the petitioners to Para No. 72 of the Manual of the Government Orders Uttar Pradesh, which is as hereunder:-
"72. Provision for departmental inquiry- A departmental enquiry should be made by a superior in the first instance in any case of alleged misconduct by an official in connection with his duties if the misconduct appears to be such as calls for punishment. If misconduct is found to have occurred and it amounts to an offence punishable by any law, the authority empowered to inflict departmental punishment should determine-
(a) whether the misconduct should be dealt with departmentally, or
(b) whether a prosecution should be instituted, and should record his reasons for adopting the course decided upon.5
Prosecution should not be instituted unless the misconduct is such that it cannot be adequately dealt with departmentally."
13. Alongwith the counter affidavit, the statement of Commanding Officer Sri Anirudh Negi has been enclosed. In his statement given to the Investigating Officer he told that though he came to know that petitioner no. 3 Akshita Bisht is not enrolled in the NCC at the very beginning of the Camp, but keeping in view her future and the fact that the documents might be missing, he directed that the documents may be enquired into and petitioner no. 3 Akshita Bisht may be allowed to continue to participate in the Camp. In the light of Rule 10 of the NCC Rules, it cannot be said that any illegality has been committed on this point, which may vitiate or bar the proceedings of the case. The Commanding Officer exercised his discretion in the matter. It cannot be said to be against Rule 10 of the NCC Rules.
14. It is true that according to Para No. 72 of the Manual of the Government Orders, Uttar Pradesh, an officer may determine whether prosecution should be instituted or not.
15. In the instant case, FIR has not been straightaway lodged. An enquiry was conducted by NCC. It is true that conclusion of the enquiry was that a detailed departmental enquiry should be ordered in the matter to prevent reoccurrence of such incidents, but at the same time, the Commanding Officer told it to the Investigating Officer that he reported the matter to his Head Office and he was directed to lodge the FIR. Therefore at this stage, it cannot be said that without conducting a full- fledged enquiry, the matter could not have been reported to the police.
16. During investigation, statements of the witnesses have been recorded, which include the statement of Dr. Mamta Pant, who is the in- charge of the concerned College. She in her statement has categorically stated about the role of petitioner nos. 1 and 2 in permitting the petitioner no. 3 Akshita Bisht to participate in the annual camp of NCC. In fact, she has also stated that it is petitioner no. 1 Kamla Bisht and petitioner no. 2 Akeel Mohd. Khan who directed her to leave one place vacant in the 6 nominal roll. According to the case, at this place the name of petitioner no. 3 Akshita Bisht was subsequently included. Not only this, Commanding Officer told it to the Investigating Officer that when he examined the documents it was revealed that in the parade register of SSJ Campus, Almora name of a candidate Renu Karki was found deleted and in this place the name of petitioner no. 3 Akshita Bisht was recorded. Petitioner no. 2 Akeel Mohd. Khan was a Training Clerk who was in-charge of these activities. As stated, much of the examination or appreciation of the material is not expected of in these proceedings.
17. Perusal of the FIR discloses commission of cognizable offences. In fact, prior to lodging of the FIR, NCC had also conducted an enquiry. After investigation, charge-sheet has been submitted against the petitioners. The reliability, credibility and truthfulness of the material collected during investigation is a subject matter of trial. Petitioners will have all the defence available at the trial. Therefore, this Court is of the view that there is no merit in this petition and it deserves to be dismissed.
18. The petition is dismissed.
19. Learned counsel for the petitioners would submit that petitioner no. 3 Akshita Bisht has already been granted bail, and therefore, a direction may be issued that the bail application of the petitioner nos. 1 and 2 may be considered on the same day when they appear and apply for bail.
20. The petition is dismissed. However, if the petitioner nos. 1 & 2 surrender before the court concerned, and apply for their bail, the same may be disposed of, as expeditiously as possible, in accordance with law.
(Ravindra Maithani, J.) 20.03.2020 Shubham