Allahabad High Court
Suresh Kumar Deepak vs State Of U.P. And Another on 6 December, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:192944 Court No. - 80 Case :- APPLICATION U/S 482 No. - 38457 of 2024 Applicant :- Suresh Kumar Deepak Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kabeer Tiwari,Saurabh Mishra,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Anil Tiwari, learned Senior Advocate assisted by Sri Saurabh Mishra, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State and perused the material on record.
2. The third supplementary affidavit dated 29.11.2024 is being placed and pressed for correcting the name of the Act mentioned in the prayer and other relevant places of the application u/s 482 Cr.P.C.
3. Learned counsel for the applicant is permitted to correct the name of the Act in the prayer and relevant places in the application u/s 482 Cr.P.C. during the course of the day.
4. The present application under Section 482 Cr.P.C. has been filed by the applicant Suresh Kumar Deepak with the following prayers :-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to stay the effect and operation of cognizance and summoning order dated 10.04.2024 passed by Additional District Judge, First Division, Meerut in Case No. 23/445 of 2024 (State vs. Suresh Kumar Deepak), under Section 13(1)(b) r/w 13(2) of the Prevention of Corruption Act, 1988 arising out of Case Crime No. 103 of 2019, Police Station Hariparvat Agra and further be quash the consequential entire proceeding of Charge sheet No. 05 of 2024 dated 27.02.2024 under Section 13(2) Prevention of Corruption Act, 1988 filed by the Investigating Officer of Case Crime No. 103 of 2019, Police Station Hariparwat, District Agra along with summoning order dated 10.04.2024 passed by Additional District Judge, First Division, Meerut in Case No. 23/445 of 2024 (State v. Suresh Kumar Deepak), under Section 13(2) Prevention of Corruption Act, 1988, otherwise the applicant shall suffer an irreparable loss and injury."
5. The facts of the case are that a first information report was lodged on 22.02.2019 by Shyam Singh, opposite party no. 2 against the applicant for offences under Section 13(1)(e) and 13(2) of Prevention of Corruption Act, 1988 with the allegation that in an open inquiry by Uttar Pradesh Vigilance Department Agra Sector, Agra done by him, he found the applicant, who was working as Nayab Muharrir at Nagar Nigam, Agra and was a public servant to be having disproportionate assets as the income from his known and valid sources was Rs.2,35,83,327/- whereas the expenditure done by him was Rs.3,08,89,925/- and thus, the expenditure was found to be Rs.73,06,598/- excess to his known and valid sources of income and was thus disproportionate. He is thus, found prima facie guilty of disproportionate assets.
6. The matter was investigated and a charge sheet no. 5 of 2024 dated 27.03.2024 was filed against the applicant for offences under Section 13(1)B read with Section 13(2) of the Prevention of Corruption Act, 1988 (Amended Act, 2018). The Court of the Additional District and Sessions Judge / Special Judge (Anti-Corruption) Meerut vide order dated 10.04.2024 took cognizance upon the same and summoned the applicant accused for offences under Sections 13(1)B read with Section 13(2) of the Prevention of Corruption Act, 1988 (Amended Act, 2018). The present application under Section 482 Cr.P.C. has thus been filed before this Court with the aforesaid prayer.
7. Learned counsel for the applicant submitted as under :
(i) The applicant was posted and working as Nayab Moharriar in Nagar Nigam, Agra.
(ii) The applicant served from 1989 to April, 2016 at the said post.
(iii) The first information report was lodged on 22.02.2019 under Sections 13(1)(e) and Section 13(2) of the Prevention of Corruption Act, 1988, which is under the unamended Act.
(iv) The charge sheet in the matter has been submitted on 27.03.2024 under Sections 13(1)B read with Section 13(2) under the Amended Act, 2018 of Prevention of Corruption Act. The case cannot proceed against the applicant since, a charge sheet under the new Act cannot be submitted.
(v) The settled principals of law state that the law as it existed at the time of commission of offences would be the law, which would govern the rights and obligations of the parties. The change of charge under the new and amended Act cannot be done and cognizance cannot be taken upon the same. The judgements of the Apex Court in the Case of West Ramnad Electric Distribution Co. Ltd. vs. State of Madras and another : (1963) 2 SCR 747 (Paragraph 15), Sukhdev Singh vs. State of Haryana : (2013) 2 SCC 212 (paragraph 15) have been placed to buttress the same.
(vi) The calculation of the income as done by the Inquiry Officer / first informant, is incorrect, page no. 291 of the paper book and page no. 73 onwards (Annexure-S.A.-4 to the second supplementary affidavit dated 17.11.2024), has been placed being the assessment orders of income tax department for the same.
(vii) The proceedings against the applicant thus cannot proceed and deserves to be quashed.
8. Learned counsel for the State submitted as under :-
(i) The first information report was lodged on 22.02.2019 whereas, the amendment in the section was already done on 26.07.2018 and thus, merely mentioning a wrong sections in the first information report would not discredit the entire prosecution case.
(ii) The charge sheet in the matter has been submitted under sections which were applicable and prevalent at the time of lodging of the first information report and by merely mentioning some other sections in the first information report would not make the entire prosecution case incorrect and fit for quashing.
(iii) Even otherwise, there is no substantive change in the nature of offences as per the previous Act and the amended Act.
(iv) The calculations as are being shown to be wrongly done is a matter of trial, which has to be seen by the trial court at the appropriate stage and cannot be corrected by this Court at this stage. The applicant will have his chance to demonstrate the same even at a prior stage of claiming discharge / framing of charge, before the trial court concerned. The judgement of the Apex Court in the case of State of T.N. vs. R. Soundirarasu : (2023) 6 SCC 768 (paragraph 45) is relied upon.
(v) The present petition is devoid of any merit and deserves to be dismissed.
9. After having heard the learned counsels for the parties and perusing the records, it transpires that the first information of the present matter was lodged on 22.02.2019 under Sections 13(1)(e) and Section 13(2) of the Prevention of Corruption Act, 1988. The investigation concluded and a charge sheet dated 27.03.2024 was submitted against the applicant under Sections 13(1)B read with Section 13(2) of the Prevention of Corruption Act 1988, the Court concerned took cognizance upon the charge sheet vide order dated 10.04.2024 and summoned the applicant to face trial for offences under Sections 13(1)B read with Section 13(1) of Prevention of Corruption Act, 1988. Insofar as, lodging of the first information report under the unamended Act is concerned, the amendment / substitution in Section 13 was done by Act 16 of 2018 w.e.f. 26.07.2018. Thus, at the time of lodging of present first information report, the said Act already stood amended. Thus, merely mentioning of previous Section of Act would not render the entire prosecution case a nullity or a case fit for quashing. Insofar as, the second limb of argument regarding error in calculation of income by the investigating agencies is concerned, the same cannot be looked into by this Court in application under Section 482 Cr.P.C., the same is to be done by the trial court at the appropriate stage.
10. The law with regards to quashing is trite and the scope and ambiguity of powers to be exercised under section 482 Cr.P.C. has been elaborately dealt with and considered by the Apex Court in the case of M/s Neeharika Infrastructure (P) Ltd. v. State of Maharashtra : (2021) 19 SCC 401 and it has been observed and held as under:
"13. From the aforesaid decisions of this Court, right from the decision of the Privy Council in Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-44) 71 IA 203 : AIR 1945 PC 18], the following principles of law emerge:
13.1. Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences.
13.2. Courts would not thwart any investigation into the cognizable offences.
13.3. However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on.
13.4. The power of quashing should be exercised sparingly with circumspection, in the "rarest of rare cases". (The rarest of rare cases standard in its application for quashing under Section 482 CrPC is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court.) 13.5. While examining an FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint.
13.6. Criminal proceedings ought not to be scuttled at the initial stage.
13.7. Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule.
13.8. Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 CrPC.
13.9. The functions of the judiciary and the police are complementary, not overlapping.
13.10. Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences.
13.11. Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice.
13.12. The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure.
13.13. The power under Section 482 CrPC is very wide, but conferment of wide power requires the Court to be cautious. It casts an onerous and more diligent duty on the Court.
13.14. However, at the same time, the Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in R.P. Kapur [R.P. Kapur v. State of Punjab, 1960 SCC OnLine SC 21 : AIR 1960 SC 866] and Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], has the jurisdiction to quash the FIR/complaint.
13.15. When a prayer for quashing the FIR is made by the alleged accused, the Court when it exercises the power under Section 482CrPC, only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
10. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into as it is. Evidence needs to be led to substantiate the defence of the accused. Further it is also well settled that while exercising powers under section 482 Cr.P.C., the High Court is not required to conduct a mini trial.
11. Looking to the facts of the case, the prima facie allegation against the applicant and the two judgements as being relied upon by the learned counsel for the applicant stands distinguishable on facts as have been discussed with regards to the present matter hereinabove, no case for interference is made out. The present application under Section 482 Cr.P.C. is without any substance and is thus dismissed.
(Samit Gopal,J.) Order Date :- 6.12.2024 / Manoj