Allahabad High Court
Udai Shanker Shukla And Others vs State Of U.P. And Others on 13 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 707
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved On : 29.01.2020(In Court No.34) Delivered On : 13.04.2020(At Residence) At Residence Case :- APPLICATION U/S 482 No. - 8286 of 2005 Applicant :- Udai Shanker Shukla And Others Opposite Party :- State of U.P. and Others Counsel for Applicant :- P.N. Tripathi,Anand Prakash Srivastava,Mahendra Pratap Tiwari Counsel for Opposite Party :- Govt. Advocate,Chandan Sharma,Satyendra Singh Hon'ble Sudhir Agarwal,J.
1. Heard Sri Anand Prakash Srivastava,learned counsel for applicants, learned AGA for State-respondent-1 and Sri Chandan Sharma, learned counsel for respondent-3.
2. This application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed by three applicants namely, Udai Shanker Shukla, Satish Shanker Shukla and Ram Shanker Shukla, all three brothers, with a prayer to quash charge sheet dated 28.03.2003 and entire criminal proceedings in Case Crime No.1297 of 2003 pending in Court of Chief Judicial Magistrate, Basti under Sections 419, 420, 467, 468, 469, 471 and 409 IPC, Police Station-Kotwali, District-Basti.
3. Facts in brief giving rise to this application are that one Ram Dhiraj Shukla, O.P.2 lodged First Information Report (hereinafter referred to as "FIR") against applicants, registered as Case Crime No.107 of 1985, under Section 379 IPC alleging that they plucked Kathal (Jackfruit) from Kathal tree standing on chak owned by Complainant/Informant, R. D. Shukla. Police after investigation submitted final report. Thereafter, to harass applicants, Complainant/Informant filed application under Section 156 (3) CrPC making accused-applicants and two others i.e. wife of applicant-2 and applicant-1 stating that applicant Satish Kumar without any valid qualification has functioned as Assistant Teacher with different names in various primary sections. Initially, he worked at Primary School, Ridhaura Development Block, Parshurampur and therefrom 20.08.1988 he was transferred to Primary School, Semra Development Block but did not return after 06.11.1989. After detection of fraud of Satish Shankar Shukla, to protect his brother, Udai Shanker Shukla represented himself as Assistant Teacher and signed at Register (2) from 1986 to 24.09.1992 and usurped public funds. In this regard report in Police Station-Parshurampur was lodged by Principal of Primary School against Uday Shanker Shukla under Section 419 and 420 IPC. Therein Satish Shanker Shukla was also made an accused. Sri Uday Shanker Shukla is usurping different funds and getting regular salary on the basis of fraudulent appointment since 12.10.1992 and misappropriated about Rs.5 lacs. Uday Shanker Shukla has prepared his false and fraudulent BTC certificate and also certificate of dependent of Freedom Fighter though in his family there was no Freedom Fighter. His BTC degree is also forged. They have also managed removal of relevant documents from the Office.
4. On the said application, Chief Judicial Magistrate, Basti passed order on 24.04.2001 for lodging FIR against accused persons and conduct investigation. Accused persons filed Criminal Revision before this Court which was finally disposed of vide judgment dated 10.05.2001 directing investigation to continue but till police submits report under section 173 (2) CrPC, arrest shall not be made.
5. Pursuant to Magistrate's order dated 24.04.2001 police registered case as C-1 of 2001 under Sections 419, 420, 467, 468, 469, 471, 409 IPC against three accused applicants and applicants-1 and 2's wives namely, Shanti Shukla and Sushila Devi. Investigating Officer (hereinafter referred to as "I.O.") also submitted charge sheet dated 28.03.2003 under Sections 419, 420, 467, 468, 471, 409 IPC in the Court of Chief Judicial Magistrate, Basti.
6. It is pleaded that applicant-1 (Udai Shanker Shukla) passed High School in 1975, Intermediate in 1977 and BTC examination in 1985. He was appointed as Assistant Teacher in Primary School in 1987. Applicant-2 (Satish Shanker Shukla) passed High School examination in 1981, Intermediate in 1983. He was appointed as Assistant Teacher by order dated 13.02.1993. Applicant-3 (Ram Shanker Shukla) was never appointed as Assistant Teacher in Primary School and allegations made against him are false. Shanti Shukla is not wife of Satish Shanker Shukla, (applicant-2) but his wife is Umeshwari Devi. All the educational certificates have been found genuine by District Basic Education Officer, Basti (hereinafter referred to as "DBEO"), still Police has submitted charge sheet on 28.03.2003 under Sections 419, 420, 467, 468, 471, 409 IPC. A departmental enquiry was directed to be conducted by DBEO, Basti by order of Director of Education (Basic), U.P., Lucknow {hereinafter referred to as 'D.E.(Basic)'} whereupon enquiry was conducted and vide report dated 02.03.2000, DBEO, Basti found that complaint made against applicants is incorrect and their educational documents are c correct still Chief Judicial Magistrate, Basti has taken cognizance of charge sheet on 16.04.2003 ignoring said report, hence, proceedings are being challenged as the same are illegal.
7. It is contended that evidence collected by Investigating Officer cannot be relied on, in view of report dated 02.03.2000 submitted by DBEO, Basti, through D.E.(Basic).
8. On behalf of O.P.2 it is said that in a Public Interest Litigation (Writ) No.33071 of 2013, an order was passed on 06.06.2013 by this Court directing DBEO to take a decision on representation made by petitioner Ram Murti Misra and operative part of aforesaid judgment reads as under :
"Accordingly, the present writ petition is disposed of with liberty to the petitioner to make a representation ventilating all his grievances before respondent no.1, within two weeks from today, along with a certified copy of this order. On such a representation being made the respondent no.1 shall summon the original records and shall satisfy himself as to whether the appointment of respondents no.9 to 27 are strictly in accordance with law, they are possessed of the prescribed minimum qualifications and are working under valid orders, or not, after affording opportunity of hearing to respondents no.9 to 27."
9. Pursuant thereto DBEO enquired the matter and found that original record relating to appointment of applicant-3 Ram Shanker was not available in the Office and in this regard report namely, Case Crime No.768 of 2014 under Sections 419, 420, 467, 468, 471, 201 IPC, Police Station-Kotwali, Basti was registered by the then DBEO, Dr. Dharamveer Singh. He has found that Ram Shanker Shukla, applicant-3 played fraud with department and worked upto 20.08.1988, illegally received salary and thereafter left School. Similar enquiry was held against applicant-2 also and by order dated 12.05.2015, DBEO, Basti has declared his appointment illegal. A third report to similar effect has been submitted by DBEO and he has passed order dated 12.05.2015 declaring appointment of applicant-1, wholly illegal. Learned counsel for respondent i.e. O.P. No.2 has placed aforesaid documents before this Court for its perusal.
10. However, I am not taking cognizance of these documents for deciding this application for the reason that at the stage when Magistrate has taken cognizance on the basis of charge sheet submitted by police, he had occasion to consider only the material collected by I.O. during investigation. Scope of interference of this Court is also very limited at this stage. Contention of learned counsel for applicants that evidence is not reliable and their defence version must be considered, I am afraid, cannot be accepted for the reason that at this stage defence of applicants-accused cannot be considered.
11. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this, juncture in absence of evidence. Supreme Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. In Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(emphasis added)
12. Recently, above view has been reiterated in Criminal Appeal No.175 of 2020 (State of Madhya Pradesh Vs. Yogendra Singh Jadaun and another) by Supreme Court vide judgment dated 31.01.2020.
13. The principles which justify interference under Section 482 Cr.P.C. by Court have been laid down in various authorities in which Supreme Court's judgment in State of Haryana vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 was leading precedent and thereafter matter has also been examined by even Larger Benches.
14. In State of Haryana vs. Bhajan Lal and others (supra) issue of jurisdiction of this Court under Section 482 Cr.P.C. has been considered and what has been laid down therein in paragraph 102, has been repeatedly followed and reiterated consistently. In very recent judgment in Google India Private Limited Vs. Visakha Industries and Ors. , AIR 2020 SC 350, guidelines laid down in paragraph 102 in Bhajal Lal's case (supra) have been reproduced as under :
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power Under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide 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."
(emphasis added)
15. Court has also reproduced note of caution given in paragraph 103 in Bhajan Lal's case (supra) which reads as under :
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
(emphasis added)
16. What would be the scope of expression "rarest of rare cases" referred to in para 103 in State of Haryana vs. Bhajan Lal (supra) has been considered in Jeffrey J. Diermeier and Ors. Vs. State of West Bengal and Ors. , 2010 (6) SCC 243, Court has said that words "rarest of rare cases" are used after the words 'sparingly and with circumspection' while describing scope of Section 482 CrPC. Those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash FIR or criminal proceedings should be used sparingly and with circumspection.
17. Supreme Court in Jeffrey J. Diermeier (supra) infact referred to an earlier Three Judges' Bench judgment in Som Mittal Vs. State of Karnataka, 2008 (3) SCC 753, to explain phrase "rarest of rare cases". In Som Mittal (supra), Court also said that exercise of inherent power under Section 482 CrPC is not a rule but exception. Exception is applied only when it is brought to notice of Court that grave miscarriage of justice would be added if trial is allowed to proceed where accused would be harassed unnecessarily or if trial is allowed to linger when prima facie it appears to Court that trial would likely to be ended in acquittal. Whenever question of fact is raised which requires evidence, Courts always said that at pre trial stage i.e. at the stage of cognizance taken by Magistrate power under Section 482 CrPC would not be appropriate to be utilized, since, question of fact has to be decided in the light of evidence which are yet to be adduced by parties.
18. In Lakshman vs. State of Karnataka and others, 2019 (9) SCC 677 Court said that it is not permissible for High Court in application under Section 482 CrPC to record any finding wherever there are factual disputes. Court also held that even in dispute of civil nature where there is allegation of breach of contract, if there is any element of breach of trust with mens rea, it gives rise to criminal prosecution as well and merely on the ground that there was civil dispute, criminality involved in the matter cannot be ignored. Further whether there is any mens rea on part of accused or not, is a matter required to be considered having regard to facts and circumstances and contents of complaint and evidence etc, therefore, it cannot be said pre judged in a petition under Section 482 CrPC.
19. In Chilakamarthi Venkateswarlu and Ors. Vs. State of Andhra Pradesh and Ors., AIR 2019 SC 3913, Court reiterated that inherent jurisdiction though wide and expansive has to be exercised sparingly, carefully and with caution and only when such exercise would justify by tests specifically laid down in Section itself. In paragraph 14 of judgment, Court said :
"14. For interference Under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief."
(emphasis added)
20. Court also said that in exercise of jurisdiction under Section 482 CrPC it is not permissible for the Court to act as if it were Trial Court. Court has only to be prima facie satisfied about existence of sufficient ground for proceeding against accused. For that limited purpose, Court can evaluate material and documents on record but it cannot appreciate evidence to conclude whether materials produced are sufficient or not for convicting accused. High Court should not exercise jurisdiction under Section 482 CrPC embarking upon an enquiry into whether evidence is reliable or not or whether on reasonable apprehension of evidence, allegations are not sustainable, or decide function of Trial Judge. For the above proposition, Court relied on its earlier authority in Zandu Pharmaceuticals Works Limited and others vs Mohd. Sharaful Haque and others, 2005 (1) SCC 122.
21. Power under section 482 CrPC should not be exercised to stifle legitimate prosecution. At the same time, if basic ingredients of offfences alleged are altogether absent, criminal proceedings can be quashed under Section 482 CrPC. Relying on M.A.A. Annamalai Vs. State of Karnataka and Ors. , 2010 (8) SCC 524, Sharda Prasad Sinha Vs. State of Bihar, AIR 1977 SC 1754 and Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Ors., 1976 AIR 1976 SC 1947, Court in Chilakamarthi Venkateswarlu and Ors. (supra) said that where allegations set out in complaint or charge sheet do not constitute any offence, it is open to High Court exercising its inherent jurisdiction under Section 482 CrPC to quash order passed by Magistrate taking cognizance of offence. Inherent power under Section 482 CrPC is intended to prevent abuse of process of Court and to clear ends of justice. Such power cannot be exercised to do something which is expressly barred under CrPC. Magistrate also has to take cognizance applying judicial mind only to see whether prima facie case is made out for summoning accused persons or not. At this stage, Magistrate is neither required to consider FIR version nor he is required to evaluate value of materials or evidence of complainant find out at this stage whether evidence would lead to conviction or not.
22. It has also been so observed in Rakhi Mishra Vs. State of Bihar and Ors., 2017 (16) SCC 772 and Sonu Gupta Vs. Deepak Gupta and Ors. , 2015 (3) SC 424 and followed recently in Roshni Chopra and others vs. State of U.P. and others, 2019 (7) Scale 152. Here Court also referred to judgment in Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Ors., (2003) 4 SCC 139, wherein paragraph 9, Court said that in determining the question whether any process has to be issued or not, Magistrate has to be satisfied whether there is sufficient ground for proceeding or not and whether there is sufficient ground for conviction; whether the evidence is adequate for supporting conviction, can be determined only at the trial and not at the stage of inquiry.
23. However, it is also true that at the stage of issuing process to the accused, Magistrate is not required to record detailed reasons. In U. P. Pollution Control Board vs. Mohan Meaking Limited and others, 2000 (3) SCC 745, after referring to a decision in Kanti Bhadra Shah Vs State of West Bengal 2001 SCC 722, Court said :
"Legislature has stressed the need to record reasons in certain situations such as dismissal of complaint without issuing process. There is no such requirement imposed on a Magistrate for passed detailed order while issuing summons. Process issued to accused cannot be quashed merely on the ground that Magistrate had not passed a speaking order."
(emphasis added)
24. Same proposition was reiterated in Nupur Talwar Vs Central Bureau of Investigation and others, 2012 (11) SCC 465.
25. In a Three Judges' Bench in Parbatbhai Aahir and Ors. Vs State of Gujarat and Ors, 2017 (9) SCC 641, Court has observed that Section 482 CrPC is prefaced with an overriding provision. It saves inherent power of High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Paragraph 15 of the judgment Court summarized as under :
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
(emphasis added)
26. Above observations have been reiterated in Arun Singh and other Vs State of U.P. passed in Criminal Appeal no.250 of 2020 (arising out of Special Leave Petition (Crl.) No. 5224 of 2017), decided by Supreme Court on 10.02.2020.
27. Reliance placed by learned counsel for applicant in Pepsi Foods Ltd (supra) on the scope of Section 482 CrPC is also in conformity with law as discussed above. I do not find anything otherwise stated therein or something which is different than what has been discussed above, which may help petitioner in a different manner. No doubt Court said that summoning of accused in criminal case is a serious matter and Criminal law cannot be set into motion as a matter of course, but to suggest that at the cognizance stage, defence evidence can be looked into and assessed on merit or it can be done by this Court when an application under Section 482 CrPC is brought to this Court against order of cognizance/summoning is neither legal nor permissible. This argument is, therefore, rejected.
28. In view of above, since questions of facts have to be examined, whether testimonials relating to qualification of applicants are genuine, whether they have got appointment fraudulently or correctly and whether they have defrauded public revenue or not and there is any mens rea, which are all questions of facts requiring appreciation of evidence, no interference is permissible at this stage. In my view, evidence is not to be examined at this stage. Since charges are serious, it also cannot be said that there is any gross abuse of process of law so as to justify interference under Section 482 CrPC. I, therefore, find no merit in this application to quash entire proceedings.
29. Application is dismissed accordingly.
30. Interim order, if any, stands vacated.
Order Date : 13.04.2020 Manish Himwan