Court No. - 75
Case :- APPLICATION U/S 482 No. - 12755 of 2018 Applicant :- Dinesh Kumar Pathak Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hridaya Narain Shukla,Rajeev Ratan Shukla Counsel for Opposite Party :- G.A.,Virendra Singh
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by the applicant for quashing of the Charg-sheet dated 27.12.2017 as well as the entire proceedings of Criminal Case No.45 of 2018 (State Vs. Smt. Usha Devi and another) arising out of Case Crime No.0914 of 2017, under Sections 409 I.P.C., P.S. Handia, District Allahabad, pending in the court of Additional Chief Judicial Magistrate-9, Allahabad.
As per the allegations made in the FIR, it is alleged that the applicant is involved in committing financial irregularities and a huge sum of Rs.10,33,800/- is said to have been embezzled. On the basis of the allegations, a preliminary enquiry is said to have been made and thereafter, an FIR was lodged against the applicant. On the basis of the said FIR, the Police after making thorough investigation concluded that the applicant is guilty of the offence and as such, charge-sheet has been submitted against him, which is impugned in the present case.
Learned counsel for the applicant has submitted that the investigation made by the Police is defective and no prior sanction for prosecuting him, as envisaged under Section 197 of the CrPC, has been taken and as such, the entire proceedings is liable to be quashed.
Learned counsel for the applicant has further contended that no offence is disclosed against the applicant and the present application has been instituted with a malafide intention for the purposes of harassment. He has also pointed out certain documents in support of his contention.
Learned counsel for the applicant has next placed reliance upon the two judgments in the case of Sushil Suri Vs. Central Bureau of Investigation & Another reported in (2011) 5 SCC 708 and M.N. Ojha & Others Vs. Alok Kumar Srivastav & Another (2009) 9 SCC 682 and has prayed that in view of inherent powers as contained in Section 482 CrPC, the entire proceedings is liable to be quashed.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicant. Learned A.G.A. has further submitted that so far as the applicant is concerned, allegations of misappropriation and embezzlement has been made against him. So far as the question of sanction for prosecution under Section 197 CrPC is concerned, the same is not at all necessary in all cases particularly when serious allegations of misappropriation and embezzlement has been made against the applicant which is not in discharge of his official duty.
Furthermore, the cases, on which reliance has been placed by the learned counsel for the applicant, are distinguishable on facts and are not applicable in the facts of the present case and the submissions made at the Bar relates to disputed question of fact, which cannot be adjudicated by this Court under Section 482 CrPC.
Having considered the rival submissions made by the parties and in view of the fact that at this stage, disputed question of fact cannot be considered, therefore, in view of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283, the prayer for quashing the charge-sheet as well as the entire proceedings is refused. Moreover, it is well settled principle of law that in order to attract rigor of Section 197 CrPC it is necessary that offence alleged against public servant must have some nexus or/and relation with discharge of his official duties which in the present case is not applicable and as such, for this reason also entire proceedings cannot be quashed.
However, it is directed that if the applicant appears and surrenders before the court below within forty five days from today and apply for bail, his prayer for bail shall be considered and decided in view of settled law laid down by this Court in the case of Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
For a period of forty five days from today or till the applicant surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant do not appear before the court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application under Section 482 CrPC is finally disposed of.
Order Date :- 27.11.2019 Zafar