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Bahawar Signh And 8 Others vs State Of U.P. And Another on 10 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 77

Case :- APPLICATION U/S 482 No. – 20022 of 2017

Applicant :- Bahawar Signh And 8 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Sushil Kumar Shukla,Abhitab Kumar Tiwari

Counsel for Opposite Party :- G.A.,Santosh Mani Shukla,Satyendra Kumar Singh,Vikash Singh

Hon’ble Ram Krishna Gautam,J.

This application under Section 482 Cr.P.C. has been filed with a prayer for quashing the entire proceeding including impugned order dated 24.01.2017, passed by learned court of Additional Session Judge / Special Judge E.C. Act, Meerut in Criminal Revision No. 190 of 2016 (Bhawar Singh and 8 others Versus State of U.P. through Collector Meerut) and impugned summoning order dated 16.04.2016, passed by Judicial Magistrate, Sardhana, District Meerut in Complaint Case No. 84 of 2013 (Veer Singh Versus Bhawar Singh and others), under Section 406 I.P.C., pending in the court of learned Judaical Magistrate, Sardhana, District Meerut.

Learned counsel for applicants argued that first information report for alleged criminal breach of trust was filed by way of an application moved under Section 156(3) Cr.P.C. by Veer Singh, who was the then Secretary of Sadhu Jagram Smarak Gaushala Samiti, situated in village and post Kapsad, Police Station Sardhana, District Meerut. Investigation resulted submission of final report. After that, Veer Singh informant has not filed any protest petition, rather it was Brijpal, who was neither Secretary nor President nor authorized person to file any proceeding in and on behalf of above Committee. This application was treated to be a complaint case, but complainant remained Veer Singh in the proceeding of complaint, whereas statement under Section 200 Cr.P.C. was got recorded of Brijpal. Brijpal himself was an accused for the same criminal breach of trust, punishable under Section 406 I.P.C. in a report, wherein charge sheet was filed and cognizance was taken. Since beginning, it was being said that amount realized from the auction of bullocks could not be deposited in Bank because of the closure hours of Bank, but it was given by President to his younger brother Brijpal for getting in safe till deposit in Bank, but the amount was not deposited. In between, President died. Hence, Brijpal was having no locus to file any protest, because he himself was accused for above misuse of money of society, for which charge sheet was filed, but on the basis of above protest petition this summoning was passed. Moreso, Society had entered in compromise and this application was moved before Magistrate that parties have entered in compromise and complainant does not want to proceed with above proceeding, but this application was rejected by Magistrate, mentioning therein that the protest was filed by Brijpal and summoning was on the protest of Brijpal, hence, this compounding will not be accepted, whereas Brijpal was neither Secretary nor President nor was having any authority for entering in compounding and admittedly money was of above Society and its office bearer had entered in compromise for offence punishable under Section 406 I.P.C., which is compoundable in the table under Section 321 Cr.P.C. Hence, on the basis of compromise too, the proceeding ought to be quashed. Moreso, the proceeding is in the misuse of process of law and the summoning was wrong. Hence, this application with above prayer.

Learned A.G.A. has vehemently opposed the application.

Learned counsel for opposite party no. 3 Brijpal has vehemently opposed this argument by saying that against him FIR was lodged by Prempal Shastri, S/o Kashmir, whereas this has been wrongly said that it was filed by Prem Pal, S/o Sohan Singh. This statement is against the fact. Moreso, Brijpal was falsely implicated in this proceeding for some criminal breach of trust, wherein charge sheet has been filed and he is facing trial. Hence, he had filed protest petition against final report and he was examined under Section 200 Cr.P.C. Thereafter, this order of summoning was there. Hence, Veer Singh or any other member of Committee is not competent to enter in compromise. Rather, they all are in conspiracy to each other. Thereby, this application be dismissed.

Having heard learned counsel for both sides and gone through material placed on record, it is apparent that auction of bullocks was performed by Committee, wherein Secretary was Veer Singh, Cashier was Bhawar Singh and President was Sukhpal Singh. Part payment was made and remaining was to be paid subsequently, but this part paid money, which was said to be handed over to younger brother of President i.e Brijpal was not deposited in Bank account of Society concerned. The other money was also not deposited. Hence, case by way of application under Section 156(3) Cr.P.C. was got filed, wherein investigation resulted submission of final report i.e. no offence was made out, whereas in another criminal case the accusation of usurpation of Rs.43,900/- was substantiated in investigation and charge sheet against Brijpal was filed, wherein cognizance was taken and case is being said to be under trial. The final report was given notice to informant, but Veer Singh who was Secretary of Society did not file any protest nor President of Society filed any protest. It was same Brijpal, against whom charge sheet was filed, filed protest petition and it was treated to be a complaint case, wherein Brijpal was examined under Section 200 Cr.P.C. and the summoning order for offence under Section 406 I.P.C. was passed. This order was challenged before court of Sessions and it was made a point in memo of revision that protest was not filed by informant. Rather, it was filed by Brijpal, who himself is accused of criminal breach of trust, but Sessions Judge in its finding has not disclosed this fact neither this was considered nor pointed or concluded by Sessions Judge on this point. Hence, the point raised was not considered by learned Sessions Judge and it was misuse of process of law.

Brijpal, who is contesting this proceeding, is himself an accused facing trial and in this proceeding too it has been specifically said that Brijpal usurped Rs.43,900/-, which was received at the time of auction and was given in his possession by his brother, who is now no more, and who was President at that time. Hence, it is apparent that for saving himself from above criminal trial, this step was taken by Brijpal by filing of this protest petition. Neither the name of complainant was changed nor complainant was examined and this summoning order was passed, wherein repeatedly this has been written that complainant was examined under Section 200 Cr.P.C. The complainant was Veer Singh, who had not been examined under Section 200 Cr.P.C. Moreso, in a criminal proceeding, running on the basis of complaint, complainant always remain with liberty to withdraw from the prosecution and it was moved before Magistrate that now Society and its members had decided not to proceed with this trial and this proceeding be ended, but Magistrate failed to appreciate facts and law placed on record. Thereby, rejected above request for withdrawal and ending of this proceeding, whereas it was moved by Secretary and President of Committee. Hence, on overall appreciation of those situations, it is very clear that both the courts below failed to appreciate this fact on record, thereby it was apparently misuse of process of law. Hence, this application merits to be allowed.

The application is allowed. The entire proceedings of Complaint Case No. 84 of 2013 (Veer Singh Versus Bhawar Singh and others) under Section 406 I.P.C., pending in the court of learned Judaical Magistrate, Sardhana, District Meerut including impugned order dated 24.01.2017 and impugned summoning order dated 16.04.2016 is hereby quashed.

Order Date :- 10.12.2019

NS

 

 

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