Court No. - 49
Case :- APPLICATION U/S 482 No. - 18999 of 2018 Applicant :- Sushil Kumar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Nishant Singh,S.M.Faraz I. Kazmi Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the charge sheet dated 29.12.2017, cognizance order dated 22.03.2018 as well as the entire proceedings of Case No. 829 of 2018 (State Vs. Ram Niwas and others), arising out of Case Crime No. 188 of 2016, under Sections- 419, 420, 477-A, 409 I.P.C., Police Station- Madanpur, District- Deoria, pending in the court of C.J.M., Court No. 17, Deoria.
Learned counsel for the applicant submits that in the departmental inquiry that was conducted in respect of the same charges, the inquiry was conducted on three occasions. In the last inquiry, it was clearly found that the applicant was not guilty of the misappropriation of the money that was meant for development work.
It is thus submitted that that concealing the third inquiry report, the opposite party no. 2 had lodged the present prosecution and that the third enquiry report was not examined and the enquiry officer was not examined during the investigation. Still, the charge sheet was submitted against the applicant.
Sri Devendra Gupta, learned counsel appearing for the opposite party no. 2 has produced two documents containing three payments released muster-roll employee No. 43052 for the same period 02.12.2011 to 07.12.2011. It is thus submitted that the conclusion drawn in the departmental inquiry were clearly perverse and such conclusions did not bar institution of criminal prosecution in face of clear documentary evidence.
Considering the above, it appears that the argument raised by learned counsel for the applicant, at this stage, is largely factual and would require evidence to be led. Therefore, no interference is warranted on such argument advanced by learned counsel for the applicant.
Then, it has been further submitted that charge sheet had been submitted by the police was only under Sections 419, 420, 477-
A, 408 I.P.C. However, while taking cognizance, the learned Magistrate has taken cognizance under Sections 419, 420, 477- A, 409 I.P.C. It is submitted that such a course was not open to the learned Magistrate at the stage of taking cognizance. Reliance has been placed on the judgment of the Supreme Court in the case of State of Gujarat Vs. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659, paragraph 23 of the said judgment is quoted below:
"23. We, therefore, dispose of this appeal by observing and clarifying the order of the High Court to the extent that the appellant State of Gujarat shall be at liberty to raise all questions relating to additions of the Sections on the basis of the FIR and material collected during investigation at the time of framing of charges by the Trial Court since the matter arises out of a police case based on the FIR registered under Section 154 of Cr. P.C. and not a complaint case lodged before the Magistrate under Section 190 of the Cr. P.C. Thus, the High Court although may be correct in observing in the impugned order that the Trial Court was not precluded from modifying the charges by including or excluding the sections at the appropriate stage during trial, it was duty bound in the interest of justice and fairplay to specify in clear terms that the Trial Court would permit and consider the plea of addition of sections at the stage of framing of charge under Section 211 of Cr. P.C. since the matter emerged out of a police case and not a complaint case before the Magistrate in which event the Magistrate could exercise greater judicial discretion."
Learned counsel appearing for the opposite party no. 2 submits that insofar as offence is made out against the applicant and further in view of the fact that the FIR had been lodged under Sections 420, 467, 468, 471, 477-A, 409, 201 I.P.C., the learned Magistrate has not made any mistake in taking cognizance under those sections.
Learned AGA on the other hand submits that in such a matter where the ingredients of offence is made out, no interference may be made, at this stage on mere technicality since the applicant has all rights and defence open during the trial.
Having considered all the arguments advanced by learned counsel for the parties, it is seen that at present, no charges have been framed against the applicant. Still, in view of the judgment of the Supreme Court, it does appear that at the stage of taking cognizance, it was not open to the learned Magistrate to take cognizance in respect of offence that was not supported by the charge sheet.
The course open to the learned Magistrate may have been to, in such circumstances, to direct further investigation since ingredient of offence alleged under section 409 may not stand established from the charge sheet. According to the charge sheet offence under section 408 I.P.C. stood made out. Therefore, on that material, it may not have been open to the learned Magistrate to take cognizance of offence alleged under section 409 I.P.C.
In view of the facts noted above, the order dated 22.03.2018 is set aside. To that extent, the matter is remitted to the learned Court below to re-examine the issue of taking cognizance of offence in accordance with law, within a period of three weeks' from the date of production of a certified copy of this order.
The present application is disposed of with the aforesaid direction.
Order Date :- 28.5.2018 A. Singh