Court No. - 20
Case :- APPLICATION U/S 482 No. - 20289 of 2011 Applicant :- Mukesh Updhyay Opposite Party :- State Of U.P. And Another Counsel for Applicant :- A.K. Yadav,R.N. Yadav Counsel for Opposite Party :- Govt.Advocate,Arvind Kumar Yadav,Vishwanath Misra
Hon'ble Amar Singh Chauhan,J.
Heard Sri R.N. Yadav, learned counsel for the applicant, learned AGA and perused the material on record. None appears on behalf of the opposite party no. 2 even in the revised list.
The applicant, Mukesh Updhyay, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the entire criminal proceedings as well as charge sheet dated 26.6.2010 in Criminal Case No. 1564 of 2010 (State Vs. Mukesh) under Sections 420, 467, 468 and 471 IPC, P.S. Khutahan, District Jaunpur and summoning order dated 21.8.2010 passed by Judicial Magistrate-IInd, Jaunpur and stay the further proceedings of the aforesaid case.
The facts which are requisite to be stated for the adjudication of this application are that the first information report was lodged by the opposite party no. 2 on 19.5.2010 with the allegation that the applicant has issued a copy of extracts of family register mentioning the date of birth 13.12.1966 in place of 13.12.1956 of the opposite party no. 2. The applicant being a Gram Vikas Adhikari in order to provide undue benefit issued the extracts of family register with the result that Mutation Case No. 428 of 1996 (Loknath and others Vs. Yusuf) was allowed and the name of the Loknath and others were got mutated and the another Mutation Case No. 358 of 1999 (Nirmala Vs. Yusuf) was rejected. The investigating officer after concluding the investigation submitted the charge sheet.
Feeling aggrieved, the applicant moved this application before this Court.
It is submitted by the learned counsel for the applicant that the complaint is barred by Section 197(1) Cr.P.C. as the applicant is the Gram Vikas Adhikari and sanction was not obtained, therefore, without obtaining sanction from the Government, cognizance cannot be taken against him. It is further submitted that any grievance with regard to any entry in the extract of family register, the aggrieved person may prefer appeal within 30 days before the Sub Divisional Magistrate whose decision shall be final. It is also submitted that a civil suit is pending in the competent court with regard to adjudication of their claim on the basis of the sale deed dated 27.10.1989 and 6.9.1999 pertaining to land Arazi Nos. 100, 98/474 area 79 and 4 Dismil respectively. It is further submitted that the matter in dispute is of civil nature and the applicant has dragged this matter before the criminal court and is nothing but misuse of process of law.
Per contra, learned AGA as well as counsel for the opposite party no. 2 have contended that the copy of family register was duly issued by the then Secretary of Gram Panchayat showing the date of birth of opposite party no. 2 as 13.12.1956 which is also supported by the statement recorded under Section 161 Cr.P.C. but later on the applicant issued forged copy of family register showing the date of birth of opposite party no. 2 as 13.12.1966. The act of the applicant come within the purview of the cheating and committed forgery in the public record. It is further contended that manipulation in the public record cannot be posed as discharge of public duly and, therefore, the applicant is neither deserved for any leniency nor can avail the protection of Section 197 (1) Cr.P.C.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection."
In the instant case, on the basis of the sale deed dated 27.10.1979 a Mutation Case No. 428 of 1996 (Lok Nath and another Vs. Yushuf) was instituted before the Tehsildar that was pending and subsequently on the basis of the sale deed dated 6.9.1999 Nirmala Devi wife of Anupat Ram Yadav also claimed to be mutated her name at the aforesaid land and filed a Mutation Case No. 358 of 1999 (Nirmala Devi Vs. Yushuf). Since both the sale deeds dated 27.10.1979 and 6.9.1999 were related to the same land, therefore, both mutation cases were consolidated. The Nirmala Devi filed an extract of family register of the opposite party no. 2 which indicates the date of birth 13.12.1956 but the another vendee Lok Nath filed the extract of family register of opposite party no. 2 indicating date of birth as 13.12.1966 which was said to be issued by the applicant. The applicant is a Gram Vikas Adhikari who has said to be manipulated the extract of the family register mentioning the fake date of birth of the opposite party no. 2 as 13.12.1966 in place of 13.12.1956. Moreover, the applicant is to establish that act concerned had some nexus with the discharge of official duty before Section 197 Cr.P.C. can be invoked and this question is a matter of trial and can be decided by evidence. The concept of Section 197 Cr.P.C. does not get immediately attracted on the institution of the case unless the aforesaid nexus is first established.
The Hon'ble Apex Court in the case of N.K. Ganguly Vs. Central Bureau of Investigation, New Delhi [2016 (2) SCC 143] has reiterated that there is a need of preliminary enquiry to establish that act concerned had some nexus with the discharge of official duty before protection of Section 197 Cr.P.C. can be invoked.
From the perusal of the record, it transpires that on the basis of the material collected by the Investigating Officer, prima facie, case is made out. There is no illegality or irregularity in filing the charge sheet. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. only in cases where the court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice.
I find no reason to interfere in the proceedings and, therefore, refuse to quash the proceedings in the aforesaid case.
Accordingly, the application is rejected.
Order Date :- 30.3.2018 AKK