Uttarakhand High Court
C482/33/2021 on 17 September, 2021
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
17TH SEPTEMBER, 2021
CRIMINAL MISCELLANEOUS APPLICATION NO. 33 of 2021
Between:
Girish Chandra Binwal ...Applicant
and
State of Uttarakhand. ...Respondent
Counsel for the Applicant : Mr. Amish Tewari.
Counsel for the Respondent : Mr. T.C. Agarwal, learned
Deputy Advocate General
for the State.
Hon'ble Alok Kumar Verma,J.
The applicant-accused Girish Chandra Binwal has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, "the Code"), to quash the charge-sheet dated 29.05.2020, filed in Criminal Case No.576 of 2020, "State Vs. Girish Chandra Binwal and others", and cognizance order dated 20.11.2020, passed by the learned Chief Judicial Magistrate, Almora, along with entire proceedings, pending before the Court of the Chief Judicial Magistrate, Almora.
2. Facts, to the limited extent necessary, are that in the scholarship scam, in compliance of the order dated 05.07.2019, passed by this High Court in Writ Petition (PIL) No.33 of 2019, Mr. Naveen Chandra, Sub-Inspector, 2 was appointed as a member of the Special Investigation Team (SIT). After enquiry, he lodged the FIR on 27.12.2019 against the present applicant and one co- accused. After completion of the investigation, the charge- sheet has been filed. Subsequent to the submissions of the charge-sheet, the learned Chief Judicial Magistrate, Almora took the cognizance under Sections 409, 420 and 120-B of IPC against the present applicant and passed the summoning order on 20.11.2020.
3. Heard Mr. Amish Tewari, the learned counsel for the applicant and Mr. T.C. Agarwal, the learned Deputy Advocate General for the State.
4. Mr. Amish Tewari, the learned counsel appearing for the applicant, submitted that the applicant has been implicated in this matter; he was a clerk in Arya Kanya Inter College, Almora at the relevant point of time; the said College was Government aided College; the applicant has retired from the post of Senior Clerk in the year, 2017, whereas, allegation pertains to the year 2011-2012; the applicant was not the signatory of any cheque relating to the scholarship amount; according to the FIR, Rs.01,11,020/- of the scholarship amount was embezzled, whereas, according to the charge-sheet, Rs.05,11,340/- of the scholarship amount was embezzled. The learned counsel for the applicant further submitted that sanction under Section 197 of the Code has not been taken by the Investigating Officer, therefore, cognizance cannot be taken for the offence punishable under Section 409 of I.P.C. In support of the said submission, Mr. Amish Tewari, the learned counsel for the applicant, has relied upon the judgment of Hon'ble Supreme Court in Amrik Singh vs. 3 State of Pepsu, (1955) 1 SCR 1302 and State of Punjab vs. Labh Singh (2014) 16 SCC 807.
5. Per contra, Mr. T.C. Agarwal, the learned Deputy Advocate General appearing for the State, opposed the submissions of the learned counsel for the applicant and submitted that Rs.06,94,240/- of the scholarship amount was provided to the Arya Kanya Inter College, Almora by the Social Welfare Department for the year 2011-2012. The present applicant was posted on the post of Clerk in the said College. Out of Rs.06,94,240/- only Rs.01,82,900/- of the scholarship amount was disbursed by the said College. The remaining amount was not distributed by the said College. During the course of the investigation, the applicant has stated that he had provided the balance amount back in writing. But, the said balance amount was not refunded. Thus, the present applicant along with co-accused persons had embezzled Rs.05,11,340/-.
6. Section 482 of the Code envisages three circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under the Code, or, to prevent abuse of the process of any Court, or, to secure the ends of justice." Section 482 of the Code reads as follows:
"Saving of inherent powers of High Court:-
nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
7. This inherent jurisdiction though wide should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do 4 real and substantial justice. While exercising jurisdiction under this section, the Court does not function as a Court of Appeal or Revision. Therefore, quashing of charge-sheet or setting aside the cognizance order on the appreciation of evidence is not justified.
8. The scope of Section 482 of the Code has been considered by the Hon'ble Supreme Court in various judgments.
9. In Madhu Limaya Vs. State of Maharashtra, 1978 AIR 47, the Hon'ble Apex Court has held that the following principles would govern the exercise of inherent jurisdiction of the High Court -
(1) Power is not to be resorted to, if there is specific provision in Code for redress of grievances of aggrieved party.
(2) It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice.
(3) It should not be exercised against the express bar of the law engrafted in any other provision of the Code.
10. In Pepsi Food Limited vs. Special Judicial Magistrate and others, 1998 (36) ACC 20, the Hon'ble Supreme Court has observed that the power conferred on the High Court under Article 226 and 227 of the Constitution of India, and under Section 482 of the Code have no limits, but more the power more due care and caution is to be exercised in invoking these powers.
11. In Lee Kun Hee and others vs. State of U.P. and others, JT 2012 (2) SC 237, the Hon'ble Supreme Court held that the Court in exercise of its jurisdiction under Section 482 of the Code cannot go into the truth or 5 otherwise of the allegations and appreciate evidence, if any, available on record.
12. In State of Haryana v. Bhajan Lal (1992) Supp.(1) SCC 335, the Hon'ble Supreme Court of India considered in detail the provisions of Section 482 of the Code. The Hon'ble Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent jurisdiction:
"(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 6 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
13. In Criminal Appeal No. 330 of 2021, 'M/s. Neeharika Infrastructure Private Ltd. Vs. State of Maharashtra and others', the Hon'ble Supreme Court has held on 13.04.2021 as under:-
"10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
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 cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) 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;
iv) 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 Cr.P.C. 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);
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 and a rarity 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. 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 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;7
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. 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;
xiii) The power under Section 482 Cr.P.C. 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;
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; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., 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."
8"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/ complaint/ FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
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;9
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.
10The 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;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted"
and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application 11 of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
14. In Kaptan Singh vs. State of Uttar Pradesh and others, 2021 SCC OnLine SC 580, the Hon'ble Supreme Court observed that in the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra, (2019) 18 SCC 191 after considering the decisions of Bhajan Lal (Supra), it is held that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed in the case of C.B.I. vs. Arvind Khanna, (2019) 10 SCC 686, Telangana vs. Managipet, (2019) 19 SCC 87 and in the case of XYZ vs. State of Gujarat, (2019) 10 SCC
337.
15. Social Justice is recognized by the Preamble of the Constitution of India. The provision of Social Justice is also made in Clause (4) of Article 15 of the Constitution of India. This Clause prescribes, protection and safeguards of any socially and educationally backward classes of citizens 12 or of Scheduled Castes and the Scheduled Tribes. Clause (4) of Article 15 makes a special application of the principle of reasonable classification. Under this Clause, the State is empowered to make special provisions for the Scheduled Castes and the Scheduled Tribes. The State of Uttarakhand issued Government Orders, whereby the process of scholarship had been fixed to be given by the Department of Social Welfare to the students belonging to the Scheduled Castes, the Scheduled Tribes, Backward Classes and Minority Classes. These scholarships are given to encourage the parents from these Classes to send their wards to schools and colleges, and to ensure that education is not denied due to the poor financial condition of their families. The object of this scholarship scheme is to support the parents of these Classes for educating their wards. This scheme is collectively funded by the Central and the State Governments.
16. In Niranjan Hem Chandra Sashittal Vs. State of Maharashtra, (2013)4 SCC 642, the Hon'ble Apex Court observed that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. The Hon'ble Apex Court further observed that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered; and the only redeeming fact is that collective sensibility respects such suffering as it is in consonance with constitutional morality. The emphasis was on intolerance to any kind of corruption bereft of its degree.
1317. In Subramanian Swamy Vs. C.B.I., (2014)8 SCC 682, the Constitution Bench of the Hon'ble Supreme Court observed that corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the 1988 Act.
18. In Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation, (2018) 16 SCC 299, the Hon'ble Supreme Court observed that the cancer of corruption has, as we all know, eaten into the vital organs of the State. Cancer is a dreaded disease which, if not nipped in the bud in time, causes death.
19. In the present case, the learned Chief Judicial Magistrate took the cognizance after considering the evidence available on the record. It is well settled that at the time of considering of the case for cognizance and summoning, merits of the case cannot be tested and it is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations. This Court would not also examine the genuineness of the allegations since this Court does not function as a Court of Appeal or Revision, while exercising its jurisdiction under Section 482 of the Code. In this matter it cannot be said that there are no allegations against the applicant. Apart this, learned counsel for the applicant could not able to show at this stage that allegations 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 applicant.
20. The object of Section 197 of the Code is to guard against vexatious proceedings against public servants and to see that no proceeding is started against 14 them unless there are good reason to suppose that there is some foundation for the charges.
21. For invoking the provision of Section 197 of the Code, two conditions must co-exist, (1) the accused was a public servant removable from his office only with the sanction of the State Government or the Central Government; and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.
22. In Matajog Dobey vs. H.C. Bhari, 1955 SCR (2) 925, the Constitution Bench of the Hon'ble Supreme Court has held that there must be a reasonable connection between the act and the discharge of official duty, the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty.
23. In Bhagwan Prasad Srivastava vs. N.P. Misra, (1971) 1 SCR 317, the Hon'ble Supreme Court observed that the question whether a particular act is done by a public servant in the discharge of his official duties is substantially one of fact to be determined in the circumstances of each case.
24. In the instant matter, the investigation prima facie makes out offences alleged to have been committed by the applicant-accused which were not part of his official duties. The judgments referred to by the applicant are not applicable to the case in hand. Hence, in view of this Court, at this stage i.e. at the time of deciding the application, filed under Section 482 of the Code, the applicant-accused is not entitled to the protection of Section 197 of the Code in respect of such acts.
1525. In view of the above discussions, the prayers for quashing the charge-sheet and setting aside the cognizance order along with entire proceedings are refused. Resultantly, the application, filed under Section 482 of the Code, is dismissed.
26. Since, the case has to be tried, I make it clear that the observations made earlier are only for the disposal of this application, filed under Section 482 of the Code. These observations will not influence the trial court while deciding the case.
___________________ ALOK KUMAR VERMA, J.
Dated: 17th September,2021 Pant/ Neha