Allahabad High Court
Dushyant Kumar And 3 Others vs State Of U.P. And 2 Others on 19 February, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 74 Case :- APPLICATION U/S 482 No. - 4077 of 2021 Applicant :- Dushyant Kumar And 3 Others Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Man Mohan Mishra,Sagar Mehrotra,Vinayak Mithal Counsel for Opposite Party :- G.A. Hon'ble J.J. Munir,J.
1. A supplementary affidavit has been filed today. It is taken on record.
2. Heard Mr. Sagar Mehrotra, learned counsel for the applicants and Mr. Dipak Mishra, learned A.G.A. appearing on behalf of the State.
3. This Application U/S 482 Cr.P.C. has been filed seeking to quash an order dated 16.01.2021 passed by the learned Additional Sessions Judge, Court No. 6, Hathras in Criminal Revision No. 86 of 2019 dismissing the said revision and affirming an order dated 09.05.2019 passed by the Magistrate rejecting an application seeking discharge in Criminal Case No. 403 of 2018, State vs. Dushyant Kumar & others (arising out of Case Crime No. 357 of 2017) under I.P.C. Sections 420, 467, 468 & 471, Police Station Hasayan, District Hathras.
4. Apart from these prayers, there is a prayer seeking to quash the non bailable warrants dated 21.01.2021 issued by the Magistrate. This prayer is consequential in nature as it relates to a mere process. There is a further prayer seeking to quash charge sheet number 107 of 2018 dated 15.07.2018 in Case Crime No. 357 of 2017 under Sections 420, 467, 468, 471 I.P.C., Police Station Hasayan, District Hathras. There is an added prayer asking for the entire proceedings of Criminal Case No. 403 of 2018 to be quashed. Substantially, prayers clauses (d) and (e), which seek to quash the charge sheet and the entire proceedings, are the same.
5. A preliminary objection raised on behalf of the State by Mr. Deepak Mishra, learned A.G.A. to the effect that challenging the charge sheet in Crime No. 357 of 2017 and the proceedings giving rise to Criminal Case No. 403 of 2018, an Application U/S 482 Cr.P.C. was earlier filed by the applicants before this Court being Application U/S 482 No. 6787 of 2019. This application was decided by means of an order dated 22.02.2019 in terms of the order passed in Application U/S 482 No. 45400 of 2018, which was an application preferred by another co-accused, Jagdeesh. The order dated 22.09.2019 virtually declines to quash the charge sheet and instead permits the applicants to move an application for discharge before the Trial Court. It is pointed out that in view of the order dated 22.02.2019 the applicants cannot come up again challenging the impugned charge sheet or the proceedings.
6. This Court has perused the order dated 22.02.2019 passed in Application U/S 482 No. 6787 of 2019, a copy of which is annexed as Annexure no. 12 to the affidavit. Clearly, a perusal of the said order shows that this Court, at the instance of applicant Dushyant Kumar and 4 others, which according to the learned A.G.A. includes Applicant Nos. 2,3 and 4, has refused to quash the charge sheet, though not saying so explicitly. Instead, the applicants have been asked to apply for discharge before the Trial Court, who would be obliged to decide the said application within a month. There is a direction not to take any coercive action against the applicant till decision of the discharge application. This is the clear effect of the order dated 22.02.2019 which is an order deciding the earlier application, preferred by the applicants, in terms of the order dated 14.12.2018 passed in Application U/S 482 No. 45400 of 2018 at the instance of co-accused, Harish. Clearly, in the opinion of this Court, the applicants cannot again come up with a prayer to quash the charge sheet or the proceedings, now. This spares for scrutiny the order refusing discharge passed by the Magistrate.
7. It is submitted by Mr. Sagar Mehrotra, learned counsel for the applicants that the Magistrate has failed to exercise jurisdiction vested in him under Section 439 Cr.P.C. It is a case where the charges against the applicants are groundless, entitling them to a discharge. The learned Sessions Judge has committed a manifest error of law in not reversing the Magistrate's order and granting discharge.
8. The learned A.G.A. on the other hand has opposed the motion to admit this application to hearing. He says that there is enough material on record to put the applicants on their trial and whatever they say constitutes their defence. It cannot be examined on a motion to discharge, obviating trial.
9. The facts of this prosecution arising from the first information report dated 25.09.2017 giving rise to Crime No. 357 of 2017, under Sections 420, 467, 468 and 471 I.P.C., Police Station Hasayan, District Hathras appear to be that the third opposite parties' father-in-law, Dr. Brahmanand got a Society incorporated in the year 1996, going by the name of Agro Industrial Research Institute Society. It was incorporated under the Societies Registration Act, 1860 (for short, 'the Act'). Dr. Brahmanand contributed 8 Bigha land (pakka) of his to the corpus of the Society, transferring it with the condition or a defeasance clause that if ever in the future, the Society becomes dys-functional or its registration not renewed, the assigned land would revert to Dr. Brahmanand or his heirs, as the case may be. Dr. Brahmanand was the founder President of the Society, R.K. Sharma was its Secretary, Shyamsundar, the Joint Secretary whereas Smt. Ramshri Tiwari, Nityanand Agnihotri and Girdhar Gopal were Members. Nityanand misconducted himself in the office and was removed therefrom in the year 1979. On 30.10.1983, Dr. Brahmanand passed away. The Vice President, R.K. Sharma got the Society renewed on 07.06.1984, current up to 10.10.1985. On 16.01.1986, the Vice President also passed away in consequence whereof the registration of the Society was not renewed. Girishpati, a son of Dr. Brahmanand and the third opposite party's husband, also died. The Society's registration was not renewed and it turned a dead entity.
10. It is the complainant's case that in terms of the deed of assignment, upon non renewal of the Society and its ceasing to function as such, the land donated by the late Dr. Brahmanand would revert to the third opposite party, his daughter-in-law and the only surviving heir. The said land was returned to the third-opposite party in the year 1989 under the orders of the Registrar Firms, Societies and Chits. Thereupon, Nityanand Agnihotri, who was removed earlier, got the Society fraudulently renewed and reconstituted on 01.01.1988. On 29.03.1988, the petitioner moved the Registrar Firms, Societies and Chits, Lucknow, objecting to the registration of the Society at the instance of Nityanand. The Registrar found the registration of the Society to be bogus and vide his order dated 13.02.1989 cancelled the registration of the Society, in exercise of his powers under Section 12D(1) of the Act. The said order was appealed to the Commissioner, Lucknow Division, Lucknow by Nityanand, purportedly on behalf of the Society.
11. The Commissioner by his order dated 08.06.1993 dismissed the Nityanand's appeal and affirmed the order of cancellation passed by the Registrar. The informant appointed one Ranveer Singh as her Attorney with authority to take care of the property, for reason that she was staying at Lucknow,. During this period of time the applicant sold two bigha out of the total eight bigha land in favour of Chhotelal and Purushottam whereas the residue of six bigha (pakka) was transferred by the informant's power-of-attorney holder in favour of Muneesh, Durvijay and Neetu. In the meantime, the order of the Commissioner, affirming the Registrar's order, cancelling the Society, was challenged by Nityanand before this Court, sitting at Lucknow, through a writ petition.
12. It is alleged that in these proceedings before the Lucknow Bench, Nityanand's grand son, Dushyant Kumar (applicant No. 1) filed a counter affidavit purporting to be on behalf of the third opposite party/informant, under her forged signatures. A substitution application had also been filed. Without ensuring the disposal of the substitution application, the writ petition was argued and allowed vide order dated 12.10.2011. In consequence, Dushyant Kumar, applicant No. 1 secured a renewal of the Society from 1990 to the year 2015. The address of the Society was also relocated from Lucknow to Village Band Abdulhaipur, Hasayan, Post Khas, District Hathras and the records relating to the Society were also got transferred from Lucknow to the Deputy Registrar Firms, Societies and Chits, Agra. This change was objected to by the complainant opposite party on ground that meetings of the Society shown convened at the third opposite party's residence at Lucknow on 21.09.2012, 01.10.2012, 20.11.2012, 30.11.2012, 26.12.2012 and various other dates, were all bogus and forged. It was pointed out that the Society was renewed on the basis of forged and bogus documents doing a fraud by the applicant's Dushyant Kumar, Rakesh Kumar, Dinesh Kumar and Amarwati, besides the non-applicants Jagdish and Natthi Lal. The President of the Society, Dushyant Kumar (applicant No. 1) was a teacher at the Primary School, Keshopur located in District Hathras whereas Rakesh Kumar (applicant No. 2) was a clerk with the Radhe Lal Inter College Aihan, District Hathras.
13. It was also specifically indicated in the first information report that on a perusal of information secured under the Right to Information Act, it transpired that Dushyant and Rakesh were not on leave and doing their duty on the dates that the bogus, forged and fraudulent meetings of the society at Lucknow have been shown. It was further reported that when the said complaint was laid before the Registrar Firms, Societies and Chits, Agra, he summoned the Register of proceedings relating to the society on a number of dates, but the document was not produced. Instead, they filed an affidavit before the Assistant Registrar that their names have been mentioned/shown in the minutes of the meetings by a typographical error. It was also reported that the minutes of the meetings bear the signatures of Applicant Nos. 1 and 2. The Deputy Registrar Firms, Societies and Chits, Agra after hearing parties and perusing the record passed an order holding that the renewal of the Society was based on bogus proceedings. He ordered cancellation of certificates of renewal etc. granted to the Society.
14. It is the prosecution case that the aforesaid facts, recorded by the Deputy Registrar, show that the renewal of the Society was secured by the applicants on the basis of false documents that were forged, including forged minutes of the meetings of the Society, leading to its renewal, which is clearly a cognizable offence. The prosecution case appears to be that by this forgery in securing the renewal of the Society on the basis of bogus meetings, the complainant opposite party was sought to be cheated of her valuable interest in the land that would, but for the Societies' renewal, revert to her. The Police investigated the case and on the basis of evidence collected during investigation found the allegations about the forgery done in the meetings of the Society, shown to be held at Lucknow, well-established and also the case of cheating.
15. It is argued by Mr. Sagar Mehrotra that the Commissioner's order dated 08.06.1993 passed in Appeal No. 89121 of 1989 from the Registrar's order cancelling the Societies' Registration was challenged by the Society through a writ petition before the Lucknow Bench of this Court being Misc. Single No. 1747 of 1993. This writ petition was allowed vide judgment and order dated 12.10.2011.
16. A review petition was filed in the said matter which came to be rejected vide order dated 4th October, 2012. Again, a recall application was made on behalf of the complainant opposite party, seeking recall of the judgment and order dated 12.10.2011, along with a delay condonation application. This application was rejected vide an order dated 02.07.2013. The complainant opposite party carried a Special Appeal from the judgment and order of the learned Single Judge dated 12.10.2011 in Misc. Single No. 1747 of 1993, also assailing the order dated 02.07.2013 rejecting the complainant opposite party's recall application. This Special Appeal was dismissed vide judgment and order dated 24.09.2014.
17. It is submitted that it was after the judgment of the learned Single Judge, that renewal of the Society was granted for the period 1990 to 2015. It is urged that this Court having found the renewal of the Society in order, declined to recall the earlier judgment, quashing the orders of the Commissioner and the Registrar, cancelling registration. Thus, no FIR could be registered, much less a prosecution launched on its basis.
18. It is further submitted by the learned counsel for the applicant that the order passed by the Deputy Registrar dated 01.07.2017, on a further complaint by respondent no. 3, cancelling the registration of the Society on ground that the meetings dated 21.09.2012, 01.10.2012, 20.11.2012, 30.11.2012, 26.12.2012 were bogus that were never held and do not bear the signatures of Applicant Nos. 1 and 2, has been set aside by the Commissioner, Aligarh Division, Aligarh in Appeal No. 592 of 2017 vide order dated 13.12.2019. This order has been challenged by the complainant opposite party before this Court by means of Writ-C No. 946 of 2020, wherein notice has been issued but no stay of operation of the Commissioner's order was granted.
19. It is argued by the learned counsel for the applicant, with much force, that the order of the Deputy Registrar dated 01.07.2017 holding the meetings dated 21.09.2012, 01.10.2012, 20.11.2012, 30.11.2012, 26.12.2012 to be bogus and fabricated record having been set aside in appeal, the impugned prosecution on the basis of those findings cannot proceed. It is emphasised that once the order of the Deputy Registrar dated 01.07.2017 is set aside, the very basis of the prosecution is removed. Thus, in substance, Mr. Mehrotra assails the impugned prosecution on twin ground, to wit, the prosecution is in the teeth of the findings of this Court in Writ Petition No. 1747 (M/S) of 1993 and Review Petition No. 287 (D) of 2012 decided on October 4, 2012; and, secondly, the order of the Deputy Registrar Firms, Societies and Chits, Agra dated 01.07.2017 being set aside in Appeal by the Commissioner, the basis for the prosecution stands removed, vitiating the impugned proceedings.
20. Learned A.G.A. submits that on both counts the impugned proceedings would not be vitiated because the scope of the criminal prosecution is quite different and independent of statutory proceedings under the Act.
21. This Court has perused the contents of the impugned charge sheet as also the judgment of this Court passed in Writ Petition No. 1747 (M/S) of 1993, decided on 12.10.2011. A perusal of the judgment and order dated 12.10.2011 clearly shows that it has dealt with the issue about cancellation of the Society's Registration on ground that it was using land for production of certain cereals and other eatables, contrary to the objects of the Society. This Court held that according to the objects of the Society, set out in the memorandum, the Society inter alia had the following objects:
a. "to promote the research and study of agriculture and industrial developments as also to find out substitutes of imported raw-materials.
b. to promote the other allied branches of study concerning the agriculture and industries on modern and scientific basis."
(extracted from the judgment in Writ Petition No. 1747 (M/S) of 1993)
22. It was held by this Court in Writ Petition No. 1747 (M/S) of 1993 in the following terms:
"The perusal of the impugned order indicates that while cancelling the registration of the petitioners' society the Deputy Registrar Firms, Societies and Chits, U.P had come to the conclusion that no such document has been submitted on the basis of which it can be presumed that the society is working in the field of research and development of flower "Rose".
On the basis of revenue record it was presumed that the society is involved in the activities of agriculture in production of certain cereals and other eatable goods, as such the authority concerned had come to the conclusion that society is working against the interest of society. The appellate authority had also not considered the pleas taken by the petitioner in right perspective.
From the order impugned it does not indicate that as to how the society was working against the aims and objects as mentioned above.
As such, the order is not sustainable in the eye of law."
23. This Court while dealing with Review Petition No. 278 (D) of 2012 largely went by the principle that the review petitioner (the complainant opposite party, amongst others) were neither the Office Bearers or Members of the Society and were held to be outsiders. There are some remarks as to how the land of the society could be mutated in the name of the complainant opposite party, but in sum and substance the review petition was rejected on ground that the issue involved in the writ petition was with respect to cancellation of the Society's registration whereas the review petitioners were neither Members of the Society or had interest in the working of the Society. They were not persons aggrieved.
24. The application for recall was rejected because the judgment and order dated 12.10.2011 is one rendered on merits and not ex parte. The Special Appeal carried from the judgment and order dated 12.10.2011 allowing the writ petition and the order dated 02.07.2013, rejecting the recall application, was dismissed as not maintainable in view of the provisions of Chapter VIII Rule 5 of the Rules of Court.
25. A perusal of the judgment and order dated 12.10.2011 passed in Writ Petition No. 1747 (M/S) of 1993 as also the judgment and order dated 04 October, 2012 passed in Review petition no. 287 (D) of 2012, show that apart from some remarks in the order made on the review application that the informant was stranger to the Society and had no locus, the substance of the dispute in that petition was about the validity of cancellation of the Society's Registration, on ground that the Society was working contrary to its objects. The Court upon consideration of the objects and the provisions of Section 12 D of the Societies Registration Act, found both on facts and law that on the ground indicated there the registration of the Society could not be cancelled. The Commissioner's order was also found vitiated for the same reason.
26. The orders, therefore, that were dealt with by this Court in Writ Petition No. 1747 (M/S) of 1993 as well as the Review Petition No. 287 (D) of 2012 were about the issue relating to the validity of the cancellation of the Society's registration, specifically on ground that the Society did or did not act contrary to its objects, so as to invite cancellation under Section 12 D of the Act. The said decisions of this Court would, therefore, have no bearing on the validity of the impugned prosecution based on a charge of fabricating and forging resolutions of the Society, relating to the meetings shown held on 21.09.2012, 01.10.2012, 20.11.2012, 30.11.2012 and 26.12.2012. The first submission of Mr. Mehrotra, therefore, has no force and must be rejected.
27. So far as the second submission goes, the fact that order of the Deputy Registrar dated 01.07.2017 has been set aside in Appeal by the Commissioner which is sub-judice, at the instance of the complainant, before this Court in a writ petition, is also quite irrelevant to the impugned proceedings. The specific submission advanced by the learned counsel for the applicant to the effect that once the order of the Deputy Registrar dated 01.07.2017, holding the resolutions of the Society dated 21.09.2012, 01.10.2012, 20.11.2012, 30.11.2012, 26.12.2012 to be forged, has been set aside in Appeal by the Commissioner with a remand to the Deputy Registrar, the basis of the prosecution goes, in the opinion of this Court, is not tenable. This is so for reason that the order of the Deputy Registrar might have pointed out a fact that constitutes a cognizable offence and that order has been set aside, but if the facts noticed in the Deputy Registrar's order, indeed constitute a cognizable offence, it can always be investigated by the Police and a police report submitted to the Magistrate. Here, if the Deputy Registrar had not given a finding, carried in his order dated 01.07.2017 that the resolutions dated 21.09.2012, 01.10.2012, 20.11.2012, 30.11.2012, 26.12.2012 are forged, fabricated and bogus, the first informant could still go to the Police and report the matter. The Police would have jurisdiction to investigate it and file a police report. Thus, keeping aside the order of the Deputy Registrar that has been set aside with a remand, the FIR lodged by the complainant opposite party does not ipso facto become a nullity or divest the police of jurisdiction to investigate the matter and submit a report to the Magistrate. The Magistrate has taken cognizance of the same on the basis of materials in the case diary. The Magistrate has then considered the matter on the issue of discharge and found that what the applicant say constitutes their defence but on the basis of materials carried in the charge sheet/police report, it cannot be said that the charges are groundless.
28. This view of the Magistrate has been affirmed by the learned Sessions Judge. There is no flaw, at all, in the view that the Courts below have taken. So far as the validity of the orders is concerned, it is well settled that at the stage of discharge the Court cannot go about testing or determining the worth of the accused's defence, or to consider evidence that may require sifting and evaluation.
29. Here, there is material to show that on the relevant days when the meetings in question about the Society were shown to be held at Lucknow under the Presidentship of Applicant No. 1, he was teaching in his School at Hathras. There is evidence that his signatures are forged and no meeting, whatsoever was held at the venue indicated which appears to be the complainants home at Lucknow. Whether this is true or not and the resolutions that impact rights of parties are genuine or fabricated, is a matter to be determined at the trial. As the case stands, fabrication of the resolution of a registered society that would impact rights to property vis-à-vis the complainant and the Society, certainly involves commission of the offences charged that have to be tried. Of course, it does not mean that the charges stand proved and it is for prosecution to establish these beyond doubt. The applicants would have a right to enter defence, if they wish. But, that does not mean that the applicants can be discharged merely because the order made in statutory proceedings under the Act, on the basis of which fabrication of record or the forgery surfaced, has been set aside. The submission of learned counsel for the applicant on this score cannot be accepted.
30. Though, this is a matter where the applicants seek to question the impugned prosecution on the ground that the basis of the prosecution is removed with the order of the Deputy Registrar holding the resolutions of the Society to be forged, being set aside, it has also been impressed upon this Court that proceedings before the Criminal Court must await a decision of the statutory proceedings under the Societies Registration Act, now pending before this Court from the order of remand passed by the Commissioner or the decision of the Deputy Registrar, post remand. Again, the said submission cannot be accepted. It is by now well settled that the Criminal Court, Civil Court and a statutory forum, dealing with rights of parties relating to the same subject matter and issue, may proceed independently and arrive at different conclusions. Between the Civil Court and the Criminal Court, seized of the same issue inter partes, a Constitution Bench of the Supreme Court in M.S. Sheriff and another vs. State of Madras and others reported in AIR 1954 S.C. 397 held:
15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal Courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S. 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.
31. The aforesaid decision was followed in a subsequent Constitution Bench decision of Their Lordships in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another reported in 2005 (4) SCC 370, where the earlier decision in M.S. Sheriff was endorsed:
32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras give a complete answer to the problem posed:(AIR p.399, paras 15-16) (quoted para of their Lordship's decision in M.S. Seriff (Supra) already extracted above is omitted) (emphasis by Court)
32. The same principle about independence of jurisdiction between the Civil and Criminal Court also applies to statutory proceedings vis-à-vis the Criminal Court. Merely, because the statutory proceedings under Section 12 D of the Act are pending where the same issue about the resolutions of the Society under reference being forged or fabricated is under consideration, would be no ground to interdict the Magistrate from proceeding with the trial of a criminal case, or much more, to hold that the outcome of statutory proceedings, or findings in those proceedings, would entitle the applicants to a discharge in criminal proceedings without trial.
33. In view of what has been said above, the impugned orders passed by the the two courts below declining to discharge the applicants, cannot be faulted.
34. In the result, this application fails and is dismissed Order Date :- 19.2.2021 BKM/-