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Harivansh Tiwari And 21 Others vs State Of U.P. And 2 Others on 25 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 33812 of 2019

Applicant :- Harivansh Tiwari And 21 Others

Opposite Party :- State Of U.P. And 2 Others

Counsel for Applicant :- Sudhakar Pandey

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Sudharkar Pandey, learned counsel for the applicants and Sri G.P. Singh, learned A.G.A. for the State.

Learned counsel for the applicant has prayed that in the prayer clause as well at the top in the heading, the sections other than 406 SectionI.P.C. have been mentioned by mistake which learned counsel for the applicants wants to rectify.

The said prayer of learned counsel for the applicants is allowed.

Let the correction be incorporated during the course of day.

This Application under Section 482 Cr.P.C. has been filed with a prayer to set-aside the impugned charge-sheet arising out of Case Crime No. 12 of 2016 under Section 406 I.P.C., P.S. Bansdih Kotwali, District Ballia. It is also prayed to quash the criminal proceeding of S.T. No. 07 of 2017.

Learned counsel for the applicants argued that the accused applicant nos. 1 to 22 have been falsely implicated in this case. Rs. 1500/- each is alleged to have been given to the accused applicants for construction of toilets which were actually built by the accused applicants except accused applicant nos. 3, 4 and 5 who did not receive any money but still they constructed the toilets from their own money, even then the charge-sheet has also been filed against them. Learned counsel has also drawn attention of this Court towards page nos. 88 to 93 of the paper book and has pointed out that this report has been submitted by V.D.O. and J.E. in which in column no. 8, the construction work is shown to have been completed, therefore, charge-sheet needs to be quashed as the same is malicious.

Learned A.G.A. has opposed the prayer of quashing.

Record reveals that the F.I.R. in this case was lodged by District Panchayat Officer against five named persons under Section 409, Section467, Section468 and Section471 I.P.C. for embezzlement of government money for preparing forged bill, vouchers and for committing other illegal activities. In Gram Panchayat, Mangalpura, Block Bansdih, the Gram Panchayat was given funds under various heads between June 2000-2005 and for the work which was performed during this period, the evaluation was made. On the basis of enquiry conducted into the matter, the Gram Panchayat which comprised the then Gram Pradhan and other officials, it is found that they had embezzled the said amount and role of the five accused applicants had emerged to have committed irregularities. It has come to light that embezzlement of huge amount has been made by the accused applicants. Evidence has also come on record that the accused applicants were given Rs. 1500/- to build the toilets but instead of constructing the same, they have embezzled the amount to which learned counsel for the applicant has disputed the said fact that the said toilets were not constructed and has stressed that they were constructed and false charge-sheet has been submitted.

This is the matter of evidence which has to be seen by the trial court that the amount which was actually given was utilized for the purpose for which it was given.

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, Section379 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 “SectionCr.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 applicants 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 applicants. 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 SectionCr.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 SectionR. 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 :- 25.9.2019

A. Mandhani

 

 

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