Court No. - 81
Case :- APPLICATION U/S 482 No. - 41946 of 2019 Applicant :- Vijay Prakash Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Om Prakash Singh,Gautam Baghel Counsel for Opposite Party :- G.A.,Pankaj Lal
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Gautam Baghel, learned counsel for the applicant, Sri Pankaj Lal, learned counsel for opposite party no. 2, G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire criminal proceeding of Case No.7842 of 2019 (State vs. Vijay Prakash Singh) as well as summoning order dated 08.07.2019 passed by Chief Judicial Magistrate, Azamgarh under sections 419, 420, 467, 468, 471, 409 IPC arising out of Case Crime NO. 143 of 2019 Police Station Kotwali, District Azamgarh, pending in theCourt of Chief Judicial Magistrate, Azamgarh. and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicant that the applicant is Ex. Manager of the school Adarsh Harijan Bal Vidya Mandir, Shivpur. The school is existing on the land, which is alleged to be Parti land, belonging to Gaon Sabha, which had been constructed in the year 1985 during the tenure of the earlier Manager of the school. The applicant was Manager during 1990-2009. The land exchange proceeding is going on. The recovery certificate issued against the applicant has been stayed by Coordinate Bench of this Court vide an order dated 6.9.2018 passed in Writ C No.26649 of 2018 (Vijaya Prakash Singh and another vs. State of U.P. and others). The opposite party no. 2 who is impostor has claimed himself to be human rights activist, bears animosity against the applicant and has lodged FIR against him with malafide intention. Therefore, the charge sheet filed against the applicant, needs to be quashed.
On the other hand learned counsel for the opposite party no. 2 has vehemently argued that the Parti land belonging to Gaon Sabha has been encroached by the applicant illegally and by misrepresenting himself to be the Manager of the school, fund has been obtained from Member of Parliament Local Area Development Scheme to the tune of Rs.2.50 lacs and recovery of the said amount is already being done against the accused- applicant. The accused is already absconding and proceedings against him under section 82-83 Cr.P.C. is going on as he is not surrendering before the court to face trial, hence quashing should be refused.
I have gone through the FIR. It is recorded in it by opposite party no. 2 that Araji no. 1665 area 0.22 hectares is recorded in the revenue record as Navin Parti situated in village Shivpur belonging to Gaon Sabha, the accused-applicant without adopting any legal procedure has constructed thereon a school in the name of Adarsh Harijan Bal Vidya Mandir, which is being run by him. For obtaining the recognition the said land has been shown as being owned by him by preparing forged khatauni and on the basis of the same, he has obtained recognition. Further, it is mentioned that on the basis of the said forged khatauni, funds from Members of Parliament Local Area Development Scheme, has been taken to the extent of Rs.2.50 lacs for construction of the school. The said funds were belonging to the financial year 2001-2002. A complaint regarding this was made by the opposite party no. 2 to the Chief Development Officer, Azamgarh who conducted enquiry in this matter and found embezzlement correct and has issued recovery certificate.
After investigation, charge-sheet has been submitted by the Investigating Officer after having recorded statements of as many as six witnesses, the testimony of the witnesses cannot be disbelieved in proceedings u/s 482 Cr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed of without being influenced by the observation made by this Court.
The applicant shall appear before the court below within 45 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 45 days, no coercive action shall be taken against the accused- applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 26.11.2019 AU