Jwala Prasad vs State of Uttar Pradesh

B.L. Yadav, J.—These are two applications (Criminal Misc. Application No. 5283 of 1983 filed by Jwala Prasad, Assistant Registrar Kanoongo, and Criminal Misc. Application No. 5282 of 1983, filed by Netra Pal Sharma, Lekhpal, Tahsil Atrauli, District Aligarh), u/s 482 of the Code of Criminal Procedure, 1973, (for short the Code), for quashing the charge sheet and the proceedings under Sections 120-B, 466, 468, 471 and 218, IPC pending against them along with other accused in the Court of Additional Chief Judicial Magistrate, Aligarh. As both these applications involve similar questions, it is convenient to dispose them of together. The applications of Jwala Prasad, however, would be the leading application.

The facts of the case are that on 15-12-73 two Parwanas Amaldaramad in duplicate were alleged to be issued by the Sub-Divisional Officer, Atrauli, Distt. Aligarh (vide Annexures 1 and 2), by which the name of the Gaon Sabha was to be expunged from Plot No. 264/1, (area 10 bighas) and Plot No. 266/1 (area 4 bighas) and the names of Ram Murti Singh, Raj Kumar Singh and Khacheru Singh, sons of Kamal Singh were ordered to be recorded over plot No. 264/1, whereas one Nagpal Singh was to be recorded over plot No. 266/1. One Indra Dutt Gaur, Revenue Clerk of the Sub-Divisional Officer, Sri. B.P. Mathur, sent these two Parwanas Amaldaramads to the Tahsildar, Atrauli, Distt. Aligarh for compliance, which was received in the office of the Tahsildar and thereafter it was received in the office of Sri. Prem Prakash Govil, Naib Tahsildar, who directed the Registrar Kanoongo to comply with the directions in the Amaldaramad and to return the same. The Lekhpal, Netra Pal Sharma on 14-1-74 incorporated the Amaldaramad in the Khatauni which was attested by Sri. Jwala Prasad, Sub-Divisional Officer, Atrauli (Annexure-4). The matter was initially investigated by the local police and later on it was handed over to the CID, which has submitted charge sheets against the present applicants and others. A copy of the charge sheet has been filed as Annexure-5 to the present application. Lateron charges have been framed against the applicants under the aforesaid Sections. A true copy of the same has been filed as Annexure-6.

Against the charge sheet and the charges framed, the present applications have been filed with a prayer that the charge sheet and the charges may be quashed as no offence has been made out on the basis of either the FIR or from the contents of the charge sheet.

Sri. B.B. Paul, the learned Counsel for the applicants, urged that no offence has been made out against the applicants, from a bare reading of the FIR or from the contents of the charge sheet and the charges framed are without any basis. He mainly relied upon Pratibha Rani Vs. Suraj Kumar and Another, .

Having heard the learned Counsel, the point for consideration is as to whether any offence was disclosed in the FIR and whether charges and charge sheet deserve to be quashed in the present applications u/s 482 of the Code. The scope of enquiry of this Court in an application u/s 482 has been pointed out in Smt. Pratibha Rani v. Suraj Kumar (Supra), and the relevant observation is given below:

Where the allegation of entrustment and mis-appropriation of Stridhan properties was made out by the married woman in her complaint and the allegations were clear, specific and unambiguous and all the facts stated in the complaint constitute the offenee u/s 405/406, the right to prove the case could not be denied to the complainant. Since the complaint prima facie disclosed an offence of criminal breach of trust, as defined in Section 405/406, the High Court was not justified in quashing the complaint u/s 482.

In the instant case I have read the FIR and the charge sheet along with the learned Counsel for the applicant and it is apparent that the offence under the aforesaid Sections is certainly prima facie disclosed. In Smt. Pratibha Rani''s case, (Supra), it was clearly held that where the offence is disclosed process must be issued. It was held in that case that in such situation where the offence is disclosed, the High Court should not quash the proceedings u/s 482 of the Code.

In J.P. Sharma Vs. Vinod Kumar Jain and Others, their Lordships of the Supreme Court observed as follows:

The grounds upon which the High Court Judge seems to have quashed complaint in the instant case, was the subsequent report by the CBI which had not yet been proved and considered in the background of the allegations made, and secondly, that some of the parties alleged to be in the conspiracy were not made parties. These are no grounds for quashing the criminal proceedings where on prima facie being satisfied the Magistrate had taken cognizance. Taking all the allegations in the complaint to be true, without adding or subtracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court u/s 482 of the Code of Criminal Procedure. The High Court in the instant case has exceeded that jurisdiction. The question at this stage, is, not whether there was any truth in the allegations made, but the question is whether on the basis of the allegations a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise on the allegation is not a ground on the basis of which the complaint can be quashed. The truth or otherwise of the allegation made in the complaint would be investigated at the time of the trial.

Considering the aforesaid principles laid down by their Lordships of the Supreme Court for interference at the stage of issuing process to the accused and applying those principles to the present case, I am of the view that a bare reading of the FIR, complaint and the charge sheet, it is abundantly clear that prima facie case was made out against the applicants in both the cases. At the stage of issuing process to the accused it has not be seen as to whether the evidence was sufficient for acquittal nor the Court was required to record a finding to that effect. The test is that if there is a prima facie sufficient evidence so as to summon the accused, there is no justification for interference at this stage. The applicants shall have sufficient remedy under the Code and they would pursue the same, rather than to invoke the jurisdiction u/s 482 of the Code.

There is yet another aspect of the matter. In a Full Bench case of this Court in Sultan Singh Jain Vs. The State, the facts were that the accused made an application u/s 540-A of the Criminal Procedure Code, 1898 (Old) for exemption from personal attendence, but that application was rejected. He moved an application u/s 561-A of the old Code and in that connection the jurisdictton of this Court u/s 561-A (i.e. Section 482 of the new Code), was considered and it was held as follows:

That Section (i.e. 561-A) would only apply when the trial Court has no jurisdiction to grant exemption. The only remedy of the accused is to go in revision against the order of the trial Court.

It was, therefore, held that where some other remedy was available under the Code, the jurisdiction u/s 561-A of the Code need not be invoked. Similarly in Mahesh v. State 1971 AWR 255 (FB) a five Judge Full Bench of this Court (para 17 page 258), held that if there was some other remedy available under the Code to an applicant, the remedy u/s 561-A of the old Code was not the proper remedy, nor this Court can allow that application and grant relief if the applicant can get appropriate remedy under the Code.

In the instant case also I am of the view that otherwise the applicants have sufficient remedy under the Code. They can appear before the trial Court and pursue their remedy available under the Code. They can prove their innocence as envisaged under different provisions of the Code, but the present application u/s 482 of the Code has got no merits and the same deserves to be dismissed.

It is very surprising that the stay order was obtained on 13-7-83 and thereafter the applications could not be listed for admission. The proceedings in the case were held up since 13-7-83. The cases of the applicants remain pending for years together in this Court even without being admitted.

I don''t find any merit in these applications and the same are accordingly dismissed. The interim stay order dated 13-7-83 (in both the applications) is hereby vacated. Office is directed to send back the record of the case immediately. Office is also directed to communicate the result of these applications to the authorities, including the Sub-Divisional Officer, Atrauli and the District Magistrate, Aligarh.

The matter has dragged on for too long. What is required, however, is that the trial Court should proceed to decide the cases against the applicants within a period of six months from the date of receipt of a copy of this order.