Power U/S 482 CrPC should not be exercised to stifle a legitimate prosecution

The High Court of Allahabad today dismissed an application filed under section 482 of code of criminal procedure for quashing of criminal proceeding against the accused charged for documents prepared for the distribution of scholarship falsely and fraudulently along with irregularities in mid-day meals to the students.

The matter was heard in the chamber of justice Sudhir Agarwal, Allahabad High Court, whereby applicant- accused namely “Umesh Chandra Saxena” files an application with a prayer to quash his case under sections 420, 218, 471 IPC pending in the court of judicial magistrate 1st class, Thakurdwara, Moradabad.

The accused-applicant was appointed as an assistant teacher in Prathmik Vidyalaya Bhadgawan, district Moradabad. The applicant was transferred from time to time with orders passed by assistant basic education officer Bhagatpur Tanda; district Moradabad, applicant while working at primary school Chatarpur Nayak was directed to join primary school Bhagatpur Tanda. On demand raised by primary school, Bhagatpur Tanda, a sum of Rs. 1,15,500/- as scholarship was credited to the account of gram panchayat meant for 385 students in the financial year 2003-04. ABEO wrote a letter to an applicant seeking details of the distribution of mid-day meals and scholarship to the students of primary school Bhagatpur Tanda. Said enquiry was made probably on some complaint made by parents of students to the district Magistrate, Moradabad against the gram pradhan of village Bhagatpur Tanda alleging about the irregularities in distribution of scholarship and mid-day meal to the students in the year 2003-04. A fact-finding enquiry was conducted by district social welfare officer and district backward class welfare officer of Moradabad in which members of the gram panchayat of the village including gram pradhan were held guilty of embezzlement of government revenue and recommended recovery of Rs. 1800/- and also departmental enquiry against them.

Thereafter, an FIR was lodged against the members of the gram panchayats including gram pradhan on the said report of DSWO and DBCWO which states that the complaint was related to the distribution of scholarship meant for students of the minority class. Also, it was mentioned in the complaint that students failing in their academics were given scholarships instead of the bright students. In a nutshell, it was found by enquiry officer that at the time of disbursement of scholarship, fake admissions in two schools were made in connivance with each other have embezzled public government money which is required to be recovered. District Magistrate, Moradabad and district panchayat raj officer, Moradabad issued notice to the alleged members and order recovery of Rs. 1800/- from the members of the gram panchayat.

Later, I.O colluded with actual persons and in order to exonerate them, in an illegal manner, implicate applicant and also tried to arrest applicant illegally by raiding his house at midnight which was reported by applicant’s wife to senior superintendent of police, Moradabad. Later, I.O submitted charge-sheet under section 420, 218, 471 IPC implicating only the applicant for the alleged fictitious and fraudulent distribution of scholarship of Rs. 1800/- to the students.

Judicial Magistrate 1st class, Thakurdwara, Moradabad had taken cognizance to the charge-sheet and issued process. Hence, entire proceeding was challenged on the ground that applicant has been falsely implicated; the evidence against the applicant was malicious and therefore, liable to be set aside.

Ld. Counsel for applicant put reliance on the Supreme Court decision in “State of Orissa vs. Debendra Nath Padhi” and “Mohammed Ibrahim vs. State of Bihar”, and urged that in order to implicate applicant, forged and manufactured evidence has been adduced against him and therefore, entire proceeding are malicious and are liable to be quashed.

“Whether there is any such scope of enquiry/ investigation at this stage under section 482 CrPC” is the most important question which needs to be considered, said the court.

The court held that the scope of judicial review at the stage of an ongoing trial in the lower court to interfere under section 482 CrPC is very limited. If allegations contained in FIR is taken to be true, and evidence collected by police is looked into, it can be said that offences under aforesaid sections in respect whereof cognizance has been taken and the process has been issued, is not made out, only then interference is justified.

The High Court made illustration that at the stage of charge sheet factual query and assessment of defense evidence is beyond the purview of scrutiny under section 482 CrPC. The allegations being factual in nature can be decided only subject to evidence. In view of the settled legal proposition, no finding can be recorded about the veracity of allegations at this juncture in the absence of evidence.

“Power under section 482 CrPC should be exercised to stifle a legitimate prosecution. At the same time, if basic ingredients of offences alleged are altogether absent, criminal proceedings can be quashed under section 482 CrPC”, held by the court.

The high court further highlighted the observation of Supreme Court that at the stage of framing of charge, defence of accused cannot be forth. If the contention of accused is accepted, it would mean that accused can be permitted to adduce his defence at the stage of framing of charge for examination thereof at that stage which is against the basic principle of criminal jurisprudence.

Therefore, the court dismissed the application filed U/S 482 CrPC for quashing of criminal proceeding pending in the lower court against the applicant and held that during investigation the I.O had found that the name of the applicant- accused. It was mentioned in documents as prepared for the distribution of scholarship falsely and fraudulently and have been placed before this court by learned counsel for the applicant are still unproved documents and yet to led as evidence in the trial court.