Court No. - 77
Case :- APPLICATION U/S 482 No. - 12214 of 2016
Applicant :- Mohd. Shuaib Siddiqui And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Wahaj Ahmad Siddiqui
Counsel for Opposite Party :- G.A.,Ashish Mohan Srivastava
Hon'ble Ram Krishna Gautam,J.
The applicants namely, Mohd. Shuaib Siddiqui and Arshad Jamal, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of the Court with prayer to quash the proceeding of complaint case No. 2193 of 2015 (Aqueel Ahmad vs. Mohd. Shuaib and others), pending in the court of Additional Chief Judicial Magistrate, Court No. 6, Varanasi and further be pleased to quash the summoning order dated 6.2.2016, under Section 406 and 420 IPC, passed by Additional Chief Judicial Magistrate, Court No. 6, Varanasi.
Heard learned counsel for the applicants and learned counsel for the opposite party No. 2 as well as learned A.G.A. for the State.
Learned counsel for the applicant argued that accused applicants have been falsely implicated in this very case crime number, wherein, they have been summoned under abuse of process of law. Hence, for ensuring end of justice, this application has been filed with above prayer.
Learned counsel for the opposite party No. 2 as well as learned AGA, has vehemently opposed the above prayer.
From the very perusal of impugned order, it is apparent that complainant has filed this complaint with contention that he, being member of Madarsa Mohammadiya, Arbiya, Nawabganj, Varanasi, was deputed by Management Committee to look after management of above school. This school is added by U.P. Madarsa Education Board. Mohd. Shuaib Siddiqui, son of Qamaruddin Siddiqui, was manager of this committee since 1995 to 2000, and in above period, it was granted temporary recognition from the Office of Registrar Arbi and Farsi Examination Uttar Pradesh. But in subsequent election of Management Committee, held in October, 2000, Mohd. Shuaib Siddiqui, was not elected rather Mohd. Muslim, who was previously auditor of above Management Committee, was elected as manager. On 7.5.2015, a query was made about distribution of scholarship from the Office of District Minorities Welfare Officer, records were revealed and it transpired that amount of scholarship was usurped illegally by Mohd. Shuaib Siddiqui, on the basis of forged and fictitious documents, wherein, his own son Arshad Jamal, was seen principal of above madarsa. His bank account was got opened as account No. 8480, at Banaras State Bank Ltd., Varanasi. Whereas, scholarship in the tune of Rs. 1,53,060/-, for the year 1998-1999 and 1999-2000 was deposited on 6.11.1998, and Rs. 1,71,420/-, was got deposited on 4.2.2000, whereas this ought to be disbursed amongst students but no such disbursement was there in school record. Accordingly, Mohd. Shuaib Siddiqui, the then Manager along with Arshad Jamal, did this embezzlement, on the basis of fraud. Hence, complaint for offence punishable under Sections 419, 420, 467, 468, 409 IPC, was filed. Magistrate took cognizance, recorded statement of complainant under Section 200 and his two witnesses under Section 202 of Cr.P.C. Then after, Mohd. Shuaib Siddiqui and Arshad Jamal, were summoned for offence punishable under Section 420 and 406 I.P.C. There was prima facie offence as above was made out, on the basis of evidence collected by Magistrate. Accordingly, this summoning was there. Hence there is no ground fro setting aside those summoning order and proceeding.
This Court in exercise of inherent power under Section 482 of Cr.P.C., is not expected to make analytical analysis of evidence and fact of the case, as the same is the question before trial court.
Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr.
LJ 3844 has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent Hamida v. Rashid, (2008) 1 SCC 474, hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings".
Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".
Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. The impugned order was well based on evidence and facts collected by Magistrate in its enquiry. Hence, this proceeding merits its dismissal.
Dismissed, accordingly.
However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within thirty (30) days from today and apply for bail, then the bail application of the applicants be considered and decided in view of the settled law laid 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 reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of thirty (30) days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicants.
However, in case, the applicants do not appear before the Court below, within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application stands disposed of, accordingly.
Order Date :- 18.12.2019 Kamarjahan