Allahabad High Court
Musafir Singh vs State Of U.P. And Another on 1 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 35968 of 2019 Applicant :- Musafir Singh Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ram Sevak Yadav,Pankaj Roy Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Pankaj Roy, learned counsel for the applicant and Sri Bhaiya Ghan Shyam Singh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the entire proceeding of Special Trial No. 10 of 2017 under Sections 467, 468, 471, 409, 420 I.P.C. and Section 13(1) D read with Section 13(2) of Prevention of Anti Corruption Act arising out of Case Crime No. 446 of 2008, P.S. Badlapur, District Jaunpur.
Learned counsel for the applicant has argued that he has been implicated by Shiv Ram Yadav who is Manager of the College while the accused applicant is Head-Master of the college, Purwa Madhyamik Vidyalaya, Badlapur Khurd, District Jaunpur. Earlier dispute with the Committee of Management was going on in regard to which civil case was also pending between the complainant and accused applicant, hence, he has been falsely implicated in the present case. There is no specific allegation against him to have embezzled any amount in F.I.R. nor in any of the statement of the witnesses which have been recorded by the I.O. during investigation. It is further submitted that an enquiry was conducted in the matter by B.S.A. in which no role was found of the applicant. It is also argued that the applicant is suffering from Cancer. This is nothing but malicious prosecution of the accused which needs to be quashed.
Learned A.G.A. has opposed the prayer of quashing and has pointed out that a total amount of Rs. 4,43,770/- has been alleged to have been embezzled by the accused applicant as various amounts were drawn by him from some bank account which was not deposited by him and when the details of the said accounts as well as papers were asked for from the accused applicant, the same were not provided by him. It is further argued that as many as 7 witnesses have been recorded by the I.O. during investigation and, thereafter charge-sheet has been submitted. Evidence of the witnesses cannot be scrutinized at this stage in proceedings under Section 482 Cr.P.C.
I have gone through the F.I.R.
As per F.I.R.,the applicant was mentioned as the Principal of Purwa Madhyamik Vidyalaya, Badlapur Khurd, District Jaunpur between 30.06.2019 and 30.06.2006. At that time, there were 12 accounts which were functional in college. In various heads, different amounts were credited during his tenure, details of which has been mentioned in F.I.R. It is found that total amount of Rs. 4,43,770/- was embezzled.
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. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently 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) The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the aforesaid direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 1.10.2019 A. Mandhani