Meghalaya High Court
Shri Brahama Prakash Singh vs . The President Of The Arya Samaj & Anr. on 27 August, 2018
Equivalent citations: AIRONLINE 2018 MEG 105
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Serial No. 03
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. Rev. P. No. 4 of 2018
Date of Decision: 27.08.2018
Shri Brahama Prakash Singh Vs. The President of the Arya Samaj & Anr.
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice
Appearance:
For the Petitioner(s) : Mr. A.S. Siddiqui, Adv.
For the Respondent(s) : Mr. M.F. Qureshi, Adv. with
Ms. K. Chisa, Adv.
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: No
ORAL
1) The petitioner in the capacity of President of the Arya
Samaj and Vidyalaya, Shillong on 25th May, 2013 represented before the Inspector of Schools, East Khasi Hills District, Shillong with a proposal for re-constitution of Managing Committee approved by the "Arya Samaj and Vidyalaya members" in general body meeting held on 25th May, 2003. It is further mentioned that for the last three years only Headmasters of all the sections are conducting the schools under the guidance of Arya Samaj and Vidyalaya President and Inspector of Schools, therefore Committee has to be constituted for Arya Vidyalaya High School (HE Section, ME Section and LP Section) Jhalupara for three years, with effect from, approval of Inspector of Schools. Finally has requested that Managing Committee constituted may be approved in the light of the Page 1 of 5 Memorandum of Association of "Arya Samaj and Vidyalaya", Shillong. The Inspector of Schools appears to have noticed that the School is run by Managing Committee constituted by "Arya Samaj". The respondents gaining knowledge of the activities of the petitioner filed a complaint before the Court of Chief Judicial Magistrate, Shillong who has assigned the same to the Judicial Magistrate First Class, Shillong.
2) After examining witnesses as were produced by the complainant (respondents) learned Magistrate while considering the question of framing or otherwise of the charge, after hearing both the parties passed a detailed order dated 8th November, 2017 and has opined that offences punishable under Sections 468/465, 418 IPC are not made out whereas on the basis of the material prima facie, commission of offence punishable under Sections 417/420 IPC are made out. While observing so learned Magistrate has recorded that the accused person (petitioner herein) has shown that the Managing Committee has been constituted for the School Arya Vidyalaya Proceeding High School whereas the materials in record reveal that the "Arya Vidyalaya High School, Jhalupara" is run by "Arya Samaj". Accordingly, in pursuance of the said order has framed charges against the accused on 12th February, 2018 for commission of offence under Sections 417/420 IPC.
3) The petitioner (accused) has filed the instant composite petition under Sections 379 and 482 Cr.P.C. praying for setting aside order dated 12th February, 2018 and also for quashing the entire proceedings. Preliminary objection was raised by learned counsel for the respondents to the effect that the basic order dated 8th November, 2017 passed by learned Magistrate in pursuance whereof charge has been framed, has not been assailed, said contention is repelled as the learned counsel would submit that the petition may be treated under Section 482 Cr.P.C.
4) While admitting the petition under Section 482 Cr.P.C., the question arise for determination is as to whether continuation of criminal proceedings will cause miscarriage of justice or will amount to abuse of Page 2 of 5 the process of the Court. According to learned counsel for petitioner the petitioner as President of the "Arya Samaj and Vidyalaya", Shillong had represented before the Inspector of Schools on 25th May, 2003 for approval of the Managing Committee of Arya Vidyalaya Proceeding High School which has not been accepted. The petitioner has neither forged any documents nor acted fraudulent and dishonestly that is why learned Magistrate has opined that Sections 468/465, 418 IPC are not applicable. The opinion of learned Magistrate that offences under Sections 417/420 IPC are prima facie made out is incorrect because there was no criminal act nor there was any attempt to commit any crime. "Arya Samaj and Vidyalaya", Shillong has been registered under the Societies Registration ACT XXI of 1860 in the year 1956-57, Patta is also in the name of the petitioner.
5) Perusal of the records reveal that in the year 1979 on a representation of the President of the "Arya Samaj Shillong" which has been established in the year 1935. Director of Public Instruction vide letter dated 26th April, 1979 had conveyed to the Inspector of Schools, East and West Khasi Hills, Shillong that it has been decided that Managing Committee constituted earlier in respect of Arya Samaj Schools in Shillong will cease to function with effect from the date of issue of the letter. Furthermore, the concerned Schools will be managed by a Committee constituted by the "Arya Samaj" which will have two nominees of the Government/Director of Public Instruction.
6) The Arya Samaj Schools as referred in said letter includes Arya Vidyalaya High School (HE Section, ME Section and LP Section) Jhalupara, Shillong. How the "Arya Samaj and Vidyalaya", Shillong constituted Managing Committee for said School is not forthcoming, however, constitution of Committee was subject to approval by the Inspector of Schools which was not approved but the respondents alleged that constitution of the Committee by the "Arya Samaj and Vidyalaya"
then its representation before the Inspector of Schools for its approval was based on fraud. The petitioner in fact attempted to deceive the Inspector of Schools by fraudulent means.Page 3 of 5
7) It also emerged from the records that the petitioner earlier was engaged as President of "Arya Samaj" when he parted way he claimed to be President of Arya Samaj which contention was challenged by Managing Committee of the "Arya Samaj" by filing a Civil Suit before the Court of Assistant to Deputy Commissioner in the year 1997 which has been decreed in favour of Arya Samaj on 30th March, 1998.
Thereafter, the petitioner with the object of taking over Arya Vidyalaya High School claimed that the "Arya Samaj and Vidyalaya" has constituted the Managing Committee. The Arya Samaj and Vidyalaya, Shillong has been in existence, constitution of Managing Committee in respect of the School Arya Vidyalaya High School, Jhalupara was irrelavant because the School is run by the "Arya Samaj". It is in the same background, Inspector of Schools has not granted any approval to it.
8) In case the petitioner would have represented before the Inspector of Schools as President of "Arya Samaj" then position could be different. He has represented as President of the "Arya Samaj and Vidyalaya", Shillong which is neither fake nor fraudulent. It is in the same background learned Magistrate has correctly opined that Sections 468/465, 418 IPC are not applicable means commission of offence under said Sections is not made out.
9) Now the question is to whether the act of the petitioner falls within the ambit of Sections 415 and 420 IPC, the answer has to be no. Section 415 IPC defines cheating which is punishable under Section 417 IPC. Section 415 IPC is quoted here under:
"415. Cheating.- whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."Page 4 of 5
10) Similarly Section 420 IPC is also quoted herein.
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
11) The ingredients of offence cheating under Section 415 IPC and cheating and dishonestly inducing delivery of property under Section 420 IPC are not satisfied. To allow continuation of criminal proceedings before trial court will be abuse of the process of the Court because ultimately result of the case will be a failure. Learned Magistrate has not appreciated the provision of Sections 415 and 420 IPC, the material available suggest that offence of cheating prima facie is not made out.
12) The request of President of the Arya Samaj and Vidyalaya, Shillong dated 25th May, 2003 made to the Inspector of Schools, East Khasi Hills District, Shillong for approving constitution of the Managing Committee for Arya Vidyalaya High School admittedly accordingly to learned counsel for the parties has not been granted, therefore there is no element of criminality attributable to the petitioner. It is a fit case for exercise of jurisdiction under Section 482 Cr.P.C. so as to advance the cause of justice otherwise parties will be involved unnecessarily in a prolonged criminal proceedings which finally are destined to fail.
13) The petition succeeds, proceedings before trial court shall stand quashed. Copy of the order be sent to the trial court (Judicial Magistrate, Shillong) for information.
14) Disposed of as above.
(Mohammad Yaqoob Mir)
Chief Justice
Meghalaya
27.08.2018
"V. Lyndem PS"
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