Allahabad High Court
Sangeeta Yadav vs State Of U.P. Thru. Addl. Chief Secy. ... on 17 November, 2022
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 8531 of 2022 Petitioner :- Sangeeta Yadav Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko And Others Counsel for Petitioner :- Anupam Mehrotra,Anil Kumar Yadav Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
1. Heard Shri Anupam Mehrotra, learned Counsel for the petitioner, Shri Ganesh Gupta, brief holder for the State-respondents no.1, 2 and 3 and perused the impugned FIR as well as material brought on record.
2. This writ petition has been filed by the petitioner - Sangeeta Yadav with a prayer to issue a writ of certiorari to quash the impugned FIR No.0202 of 2022 dated 11.11.2022, under Section 409 I.P.C. at Police Station Bhiti, District Ambedkar Nagar; with a further prayer not to arrest the petitioner in pursuance of the impugned FIR.
3. It has been argued by learned Counsel for the petitioner that the petitioner is the Pradhan of the Gram Panchayat Kichuti, Vikas Khand Bhiti, District Ambedkar Nagar and he is neither a public servant nor he is doing business as a banker, merchant or agent, therefore, the offence under Section 409 I.P.C. is not made out. In support of his contention, he has invited the attention of the Court towards Section 21 I.P.C., which provides, the words "public servant" denote a person falling under any of the descriptions given therein. Section 21 I.P.C. reads as under:-
21. "Public servant".--The words "public servant" denote a person falling under any of the descriptions hereinafter following; namely:--
(Second)--Every Commissioned Officer in the Military, [Naval or Air] Forces [[***] of India];
[(Third)--Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;] (Fourth) -- Every officer of a Court of Justice [(including a liquidator, receiver or commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
(Fifth) -- Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
(Sixth) -- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
(Seventh) --Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(Eighth) -- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(Ninth) -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government], or to make any survey, assessment or contract on behalf of [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of [the Government] [***];
(Tenth) -- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
[(Eleventh) --Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;] [(Twelfth) --Every person--
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).] Illustration A Municipal Commissioner is a public servant.
Explanation 1.--Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.
Explanation 2.--Wherever the words "public servant" occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
[Explanation 3.--The word "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.]
4. He submits that the petitioner does not fall under the description of Section 21 I.P.C. The entitlement of the petitioner as Pradhan is a statutory entitlement under Section 12-AA of U.P. Panchayat Raj Act, 1947. In support of his contention, he has drawn attention of the Court towards Section 188 of U.P. Panchayat Raj Rules, 1947, which reads as under :-
"188. Treatment of embezzlement -
(1) Wherever an embezzlement of money belonging to the Gaon Fund is discovered by the Pradhan or any other official, the fact of embezzlement shall be immediately reported by him to the prescribed authority who will then inform the District Magistrate, the Director of Panchayats and the Chief Audit Officer to Government, Co-operative Societies and Panchayats, Uttar Pradesh.
(2) The prescribed authority on receiving the report under sub-rule (1) shall forthwith institute an inquiry into the embezzlement."
5. He further submits that ex-parte proceeding holding the petitioner guilty is unjust. In support of his argument, he invited the attention of the Court towards the judgment of the Apex Court in the case of State of Haryana v. Bhajan Lal :1992(Supp) 1 SCC 335 and Jogender Kumar v. State of U.P. : 1994 SCC (Criminal) 1172. He next argued that the impugned FIR has been lodged against the petitioner just for harassment with oblique motive. The entire allegations levelled against the petitioner are absolutely false, frivolous and baseless, hence, the impugned FIR is liable to be quashed.
6. Learned A.G.A., on the other hand, opposed the prayer for quashing of the F.I.R. and argued that from a perusal of impugned FIR, it transpires that the statement of bank account of Gram Panchayat from the date 01.01.2019 till 05.11.2022 was obtained, which mentions that entire amount has been transferred to the personal account of the petitioner while the withdrawal of all the funds of Gram Panchayat was to be done through joint signature and digital signature of Gram Pradhan and Gram Panchayat Secretary, but the amount has been withdrawn by the petitioner against the rules. He next argued that from a perusal of F.I.R. cognizable offence is made out against the petitioner and the relief as claimed cannot be granted to the petitioner in this writ petition in view of the latest judgment of the Apex Court passed in M/s Neeharika Infrastructure Pvt. Ltd. Vs. The State of Maharashtra & others, 2021 SCC OnLine SC 315, and therefore, the present petition is liable to be dismissed.
7. In the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra), Hon'ble Apex Court observed that :-
"i) 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 a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) 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;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) 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 and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) 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;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) 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. 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;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) 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 the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR"
8. After having examined the submissions advanced by learned counsel for the parties and perused the impugned F.I.R., we are of the opinion that the impugned F.I.R. discloses cognizable offence against the petitioner, hence, no interference is called for by this Court in its extraordinary power under Article 226 of the Constitution of India for quashing of the F.I.R. or for grant of any interim relief to the petitioner and also in view of the law laid down in M/s Neeharika Infrastructure Pvt. Ltd. (supra), the present writ petition is dismissed.
(Mrs. Renu Agarwal, J.) (Ramesh Sinha, J.)
Order Date :- 17.11.2022
Anand Sri./-