1. On an earlier count analogous hearing of Cr.W.J.C. No.849/2010, Cr.W.J.C No.647/2010, Cr.W.J.C. No.1148/2010, Cr.W.J.C. No.24/2012 and Cr.W.J.C. No. 1152/2010 were directed but in due course of time, save and except Cr.W.J.C. No. 849/2010 none survived as Cr.W.J.C No. 24/2012 was withdrawn being infructuous vide order dated 22.09.2013, Cr.W.J.C. No. 647/2010 was dismissed for default vide order dated 19.02.2011, Cr.W.J.C. 1148/2010 was disposed of vide order dated 08.01.2014, Cr.W.J.C. No.1152/2010 was disposed of vide order dated 04.07.2013.
2. Heard learned counsel for the petitioner as well as learned GA-11 for the State.
3. Petitioner has prayed for following relief under para-1:- 1. That, this is an application for issuance of an appropriate writ, order, direction for setting aside the F.I.R. being Araria P.S. Case No. 283 of 2010 dated 24.06.2010 under Sections 406, 409, 420, 467, 468 and 120B of the Indian Penal Code, as the entire allegation made in the First Information Report does not disclose any cognizable offence and has been lodged on malafide basis.
4. To justify the aforesaid relief so claimed for, it has been submitted on behalf of petitioner that identification of petitioner as an accused under Araria P.S. Case No. 283 of 2010 happens to be on the basis of being the then District Magistrate of Araria District without having any sort of allegation against him. Further elaborating the argument, It has been submitted on behalf of the petitioner that for the financial year 2004-05, the Araria Zila Mukhiya Sangh and Anr had filed CWJC No. 10457/2004 praying therein to direct the authorities concerned to disburse the fund allotted under Indira Awas Yojna to the beneficiaries and the Honble Apex Court after hearing the parties passed order on 24.09.2006 directing the District Magistrate, Araria to look into the matter and pass appropriate order, so that scheme should not get frustrated within a month. Whereupon the matter was taken up and vide order dated 14.10.2004 petitioner had passed appropriate order. Save and except the aforesaid event, the petitioner has got no role either in allotting the funds or releasing the funds because of the fact that the aforesaid event is to be exercised by the District Development Commissioner. Even as per circular issued relating to Indira Awas Yojna, the District Magistrate has got no role to play.
5. It has further been submitted that the then District Development Commissioner, Sri Balmiki Prasad had disbursed the amount to Executive Engineer and the Executive Engineer disbursed the same to Assistant Engineer. The Assistant Engineer had furnished the utilization certificate. However, one Deepak Kumar, on account of his transfer, could not furnish the utilization certificate, on account thereof, Araria P.S. Case No. 238/2005 was launched against him, side by side, he was also departmentally proceeded with. However, after getting permission from department the aforesaid Deepak Kumar produced the details and the same was accepted and on account thereof, he was exonerated from the departmental proceeding. On account thereof, the aforesaid Deepak Kumar challenged the propriety of FIR of Araria P.S. Case No. 238/2005 and the same was accepted under CWJC No. 764/09 whereunder vide order dated 03.11.2009 the FIR of Araria P.S. Case No. 238/2005 was quashed.
6. The Vigilance had challenged the order before the Honble Apex Court but without any sort of fruitful result. Subsequently thereof, while the Chief Minister launched Vikas Yatra, some mischievous personnel complained and on account thereof, as per instruction of Chief Minister Secretariat instead of enquiring into the matter, got this criminal case launched which also includes the amount for which at an earlier count, Araria P.S. Case No. 238/2005 was registered against Deepak Kumar which was found quashed by a judicial order.
7. It has further been submitted that even after going through the contents of First Information Report, it is evident that no allegation has been attributed to the petitioner rather has been dragged only on the basis of being the District Magistrate at the relevant time and so submitted that taking into account the principle as laid down by the Honble Apex Court in the case of State of Hariyana and Ors. Versus Bhajan Lal and Ors as reported in AIR 1992 SC 604, it is a fit case whereunder judicial indulgence is warranted in getting the impugned FIR quashed.
8. On the other hand, learned GA-11 while counter meeting with submissions raised on behalf petitioner has submitted that the instant petition has become infructuous in the background of the fact that charge-sheet has already been submitted against the petitioner including others. It has also been submitted that from relevant paragraphs of the case diary, particularly, paragraphs-3, 14, 15, 31, 38, 39, 45 and 48 complicity of petitioner is also exposed which nullify the submission raised on behalf of petitioner. It has also been submitted that FIR should not be encyclopedia detailing each and every event rather FIR is a method by which commission of offence is reported to the police authorities who, under the Code, is duty bound to register the same in case the allegation happens to be a cognizable one while with regard to non-cog case permission should be solicited. It is the investigation whereunder the material aspect has to be thoroughly gone through, relevant documents have to be seized, statement of witnesses is to be recorded and then the police report in terms of Section 173 of the Cr.P.C. is to be submitted disclosing the fact that accused is to be proceeded with or not in terms of Section 169 or 170 of the Cr.P.C. Therefore, once the investigation commenced followed with submission of charge-sheet then, the FIR loses its independent identity, side by side, it has to be seen inconsonance with material so collected during course of investigation available in the case diary. As such, the impugned petition has lost its legal ferverance whereupon is fit to be dismissed.
9. Learned GA-11 also relied upon (2011) 6 SCC 102, (2003) 6 SCC 641, (2011) 11 SCC 259, (2012) 9 SCC 685, (1999) 3 SCC 247.
10. In reply thereto, It has been submitted on behalf of the petitioner that submission of charge-sheet could not be found adverse to the interest of petitioner while entertaining and adjudicating upon the prayer made on behalf of petitioner for quashing of prosecution and for that relied upon (2011) 7 SCC 59, 2013 AIR SCW 6062.
11. An aggrieved has got an option to challenge veracity of prosecution version so coming out by way of institution of FIR either under Article 226 of the Constitution of India or under Section-482 of the Cr.P.C. It happens to be a regular phenomenon so perceived and times without number it has come up before the Honble Apex Court for its adjudication. In State of Maharashtra v. Arun Gulab Gawali reported in AIR 2010 SC 3762, the issue has been dealt with in detail in following way:-
12. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can `soft-pedal the course of justice' at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as `Cr.P.C.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of West Bengal and Ors. Vs. Swapan Kumar Guha and Ors. AIR 1982 SC 949; M/s. Pepsi Foods Ltd. and Anr. Vs. Special Judicial Magistrate and Ors. AIR 1998 SC 128; G. Sagar Suri and Anr. Vs. State of U.P. and Ors. AIR 2000 SC 754; and Ajay Mitra Vs. State of M.P. and Ors. AIR 2003 SC 1069).
13. In R.P. Kapur Vs. State of Punjab AIR 1960 SC 866, this Court laid down the following principles :-
(I) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice;
(II) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction;
(III) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and
(IV) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.
14. In State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors. AIR 1992 SC 604, this Court laid down the similar guidelines for exercising the inherent power, giving types of cases where the Court may exercise its inherent power to quash the criminal proceedings. However, the types of cases mentioned therein do not constitute an exhaustive list, rather the cases are merely illustrative.
15. In State of Karnataka Vs. L.Muniswamy and Ors. AIR 1977 SC 1489, this Court held as under :-
"In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction." (Emphasis added).
16. The inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. (Vide Mrs. Dhanalakshmi Vs. R. Prasanna Kumar and Ors. AIR 1990 SC 494; Ganesh Narayan Hegde Vs. S. Bangarappa and Ors. (1995) 4 SCC 41; and M/s Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors. AIR 2005 SC 9).
17. In State of Orissa and Anr. Vs. Saroj Kumar Sahoo (2005) 13 SCC 540, it has been held that probabilities of the prosecution version can not be analysed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus:
"It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with." (Emphasis added).
18. In B.S. Joshi and Ors. Vs. State of Haryana and Anr. AIR 2003 SC 1386, this Court held that inherent power must be utilised with the sole purpose of preventing the abuse of the process of the court or to otherwise serve the ends of justice. In exercise of inherent powers, proper scrutiny of facts and circumstances of the case concerned are absolutely imperative.
19. In Madhavrao Jiwaji Rao Scindia and Anr.Vs. Sambhajirao Chandrojirao Angre and Ors. AIR 1988 SC 709, this court held as under :-
"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
(Emphasis added).
20. This Court, while reconsidering the Judgment in Madhavrao Jiwaji Rao Scindia (supra), consistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc., the Court may consider "special facts", "special features" and quash the criminal proceedings to encourage genuine settlement of disputes between the parties.
21. The said Judgment was reconsidered and explained by this Court in State of Bihar and Anr. Vs. Shri P.P. Sharma and Anr. AIR 1991 SC 1260, as under :
"Madhaorao J. Scindhia v. Sambhaji Rao AIR 1988 SC 709, also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of Trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120B I.P.C. which the High Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offences were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal.........Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or Article 226 to quash the proceedings or the charge-sheet." (Emphasis added).
22. In Alpic Finance Ltd. Vs. P. Sadasivan and Anr. AIR 2001 SC 1226, this Court explained the ratio of the Judgment in Madhavrao Jiwaji Rao Scindia (supra), that law laid down therein would only apply where it is a question of a civil wrong, which may or may not amount to a criminal offence. Madhavrao Jiwaji Rao Scindia (supra) was the case involving a trust where proceedings were initiated by some of the trustees against other trustees. This Court, after coming to the conclusion, that the dispute was predominantly civil in nature and that the parties were willing to compromise, quashed the proceedings.
23. In M.N.Damani Vs. S.K. Sinha and Ors. AIR 2001 SC 2037, this Court again explained the Judgment in Madhavrao Jiwaji Rao Scindia (supra) in a similar manner.
24. Thus, the judgment in Madhavrao Jiwaji Rao Scindia (supra) does not lay down a law of universal application. Even as per the law laid down therein the court can not examine the facts/evidence etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in conviction. The ratio of the said Judgment is applicable in limited cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes etc. etc. The Superior Courts have been given inherent powers to prevent the abuse of the process of Court where the Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for the court to hold a full-fledged inquiry or to appreciate the evidence, collected by the Investigating Agency, if any to find out whether the case would end in conviction or acquittal.
12. Now in the back ground of aforesaid settled principle of law, the case of the prosecution has to be looked into. The FIR of Araria P.S. Case No. 283/2010, the present one has been instituted by the Officer-in-charge of Araria P.S. on his self statement disclosing thereunder that he had received relevant letters and after going through the same, it transpires that the then District Magistrate, Amrendra Narayan Singh, the then D.D.C, Balmiki Prasad had entrusted Rs.8 Crores to the Executive Engineer flouting the bylaws issued with regard to Indira Awas Yojna and the aforesaid amount which was distributed amongst the Assistant Engineer by the Executive Engineer, there happens to be complete absence of document at the end of Assistant Engineer regarding its utilization followed with submission of utilization certificate as well as if not utilized, return of the amount and so a conspiracy has been smacked by the informant in getting the aforesaid amount siphoned. From different annexures filed on behalf of petitioner, role of District Magistrate during exercising its administrative control is itself apparent and on account thereof any fraudulent act so committed under its nose, makes the District Magistrate accountable. The extent of involvement is the subject matter of trial as Writ Court is not found competent one on that very score.
13. From Annexure-1, it is evident that one Shivlal Ram, Executive Engineer had launched Araria P.S. Case No. 238/2005 against one Deepak Kumar, Assistant Engineer who was handed over Rs. 5, 99, 88,000/- for the financial year 2004-2005 relating to Indira Awas Yojna for which he was also departmentally proceeded with and after submission of utilization certificate for the aforesaid amount appertaining to Rs. 5, 99, 88,000/-, departmental proceeding was dropped and on the basis thereof, criminal prosecution was quashed.
14. The aforesaid Deepak Kumar has also been arrayed as accused in the present FIR for the aforesaid amount for which he was made accused in Araria P.S. Case No. 238/2005 and got it quashed at an earlier occasion. Therefore, for the same allegation, the subsequent prosecution did not justify its relevance ordinarily.
15. For that purpose when the case diary has been gone through, it is evident therefrom that the real beneficiaries have not got the fund in its entirety meant therefor as well as physical verification also negativated the same. Under paragraphs- 23, 24, 25, 26, 27, 28, whereunder the list of beneficiaries were furnished before the I.O. while under paragraphs, 47, 48, 49, 50, 51, 52, 53, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 68, 70, 71, 72, 74, 75, 76 and so on, the actual verification were made whereunder other beneficiaries have complained sighphoning the amount or in some cases only skeleton works were found.
16. Now coming to the activity of the District Magistrate, the order dated 14.10.2004 itself identified the status of the District Magistrate and on account thereof, he is found accountable for the lapses committed during course of execution of work for the financial year 2004-2005. Mere dropping of departmental proceeding or quashing of criminal prosecution thereof is not going to blur the subsequent prosecution because of the fact that it neither happens to be in contravention of Section-300 of the Cr.P.C. nor under Article-20 (2) of the Constitution of India. More recently, in State of (NCT Delhi) v. Ajay Kumar Tyagi repored in (2012) 9 SCC 685, it has been held by the Honble Apex Court that dropping of departmental proceeding is not a ground to quash criminal prosecution. Moreover, after conclusion of investigation as well as by way of submission of charge sheet, the prosecution has sailed its case prodigiously.
Consequent thereupon, the instant petition is found devoid of merit and is, accordingly, dismissed.