C482/582/2013 of Swami Shyam Prakash Vs State Of Uttarakhand AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALUnder Section 482 of Cr.P.C.

Criminal Misc. Application No. 582 of 2013

Swami Shyam Prakash

...... Petitioner

State of Uttarakhand and Others

....Respondents

With Criminal Misc. Application No. 808 of 2013

Baba Hat Yogi

State of Uttarakhand and Others

...... Petitioner

....Respondents

Mr. Siddhartha Singh, Advocate for the petitioner. Ms. Manisha Rana Singh, A.G.A. for the State.

Hon’ble Ravindra Maithani, J. (Oral)

The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) has been filed by the petitioner for quashing the charge-sheet dated 20.01.2013 under Sections 420, 467, 468, 471, 120-B IPC and summoning order dated 06.03.2013 passed in Criminal Case No.1906 of 2013, pending in the court of Chief Judicial Magistrate, Haridwar and the entire proceedings arising out from it.

2. Criminal law, in this case has been set in motion by filing an FIR by Sushil Kumar Malik (hereinafter referred to as the “first informant”). According to the averments, he was Mahamantri of Avdhoot Mandal Pracheen Bhram Dass Trust, Gurukul Kangri, Haridwar (for short “the trust”), but petitioner Swami Shyam Prakash

claiming to be disciple of the Chairperson Hans Prakash Ji Maharaj, started visiting the ashram and extracted the information about the accounts maintained by the trust. Petitioner Swami Shyam Prakash thereafter opened an account in the name of the trust, in Punjab National Bank, Branch Gurukul Kangri, Haridwar and started depositing the amount due to the trust in the forged account. There are other details as well in the FIR as to the amounts deposited and other acts conducted by petitioner Swami Shyam Prakash without permission.

3. After investigation, charge-sheet has been submitted against both the petitioners for the offences punishable under Sections 420, 467, 468, 471, 120-B IPC. By the impugned order dated 06.03.2013 cognizance was taken.

4. Heard learned counsel for the parties and perused the records.

5. Learned counsel for the petitioners would argue that it is dispute, purely civil in nature, which has been given colour of criminal case. It is dispute with regard to the managing committee of the trust. The managing committee, of which the petitioner Swami Shyam Prakash is the secretary, is the committee, which has been constituted by the Chairperson Hans Prakash Ji Maharaj and when the dispute arose, it is this committee, which was authorized by the competent authority in dispute under Section 25 of the Society Registration Act, 1860 (for short “the Act”). It is also argued that, in fact, when the first informant was irregularly inducted in the trust, the Chairperson filed civil suit challenging those acts and the Civil Suit No. 3 of 2012 is still pending. It is also argued that the order dated 18.10.2011 passed under section 25 of the Act was challenged in Writ Petition (Miscellaneous) No. 2454 of 2012, which has been disposed of with direction that the parties may seek remedy in the pending Civil Suit No. 03 of 2012 ( for short “the

suit”). Therefore, it is argued that the continuance of the proceedings would be abuse of the process of law.

6. There is none on behalf of the first informant. He was impleaded as respondent no.3 and he appeared also in this matter. Subsequently, he died during pendency of the petition. The Court was informed on 13.03.2019 that newly appointed secretary would be appearing in the proceedings but none appeared thereafter.

7. Learned State counsel would submit that it is essentially dispute civil in matter.

8. few facts need brief mention. In the year 2012, Civil Suit No. 03 of 2012 was filed by Hans Prakash Ji Maharaj, as Chairperson of the trust. The first informant is one of the defendants in the suit. Challenge in the suit is the amendments, which were made in the by-laws on 20.02.2004; declaration to the effect that the management Committee constituted by Chairperson Hans Prakash Ji Maharaj is valid; the Committee proposed by first informant is invalid.

9. Petitioners filed order dated 18.10.2012, passed in Suit No.01 of 2011-12, under Section 25 of the Act, by the Court of Sub-Divisional Magistrate/Prescribed authority Haridwar, by which the committee constituted by the first informant Sushil Kumar Malik in the meeting held on 22.06.2011 was disapproved and the committee constituted by Hans Prakash Ji Maharaj in the meetings held on 06.05.2011, 07.06.2011 and 19.06.2011 was approved and upheld. The list of the members of the Committee was submitted by the chairperson Hansji Maharaj on 23.06.2011. This list was approved on 18.10.2012.

10. During the course of the arguments, learned counsel for the petitioner placed copy of order dated 06.12.2017 passed in Writ Petition (Miscellaneous) No. 2454 of 2012 to argue that the order

dated 18.10.2012 passed by the prescribed authority under Section 25 of the Act was challenged in the writ petition before the Court, which stood disposed of with direction that the lis is pending in the suit.

11. As stated, the first informant is not being represented in the Court. The Court considers the counter affidavit filed by the first informant, when he was being represented in the Court. The meetings held on 06.05.2011, 07.06.2011 and 19.06.2011, according to the first informant were false and infrivolous. The fact remains that the list given by the Chairperson Hans Prakash Ji Maharaj has been upheld under Section 25 of the Act and that order has gained finality. The fact also remains that civil suit is also pending with regard to the constitution of management committee as well as the bylaws which was challenged in the year 2004.

12. This Court is conscious of the scope of jurisdiction under Section 482 of the Code. Needless to say, in the cases of R.P. Kapoor Vs. State of Punjab, AIR 1960 Supreme Court 866, State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, Rajiv Thapar and Others Vs. Madan Lal Kapoor, (2013) 3 SCC 330 and Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, guidelines have been laid down as to the scope of jurisdiction under Section 482 of the Code.

13. In the case of Bhajan Lal (supra), the Court, interlia, held as hereunder:-

“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the 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 case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of Magistrate within the purview of Section 155(2) of the Code.

(3) 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 case against the accused.

(4) Where, the allegations in the FIR do not constitute cognizable offence but constitute only non-cognizable offence, no investigation is permitted by police officer without an order of Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with view to spite him due to private and personal grudge.

103. We also give note of caution to the effect that the power of quashing criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness

or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.”

14. In the case of Amit Kapoor (supra) the Hon’ble Court, inter-alia, held that “where the allegations made and as they appear from the record and documents annexed therewith to predominantly give rise and constitute “civil wrong” with “no element of criminality” and does not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charges.

15. The list of the member of management Committee of the trust as submitted by the chairperson Harish Prakash Ji Maharaj has been upheld by the prescribed authority on 18.10.2012 under Section 25 of the Act. The list is Annexure 8 (In C-482 No. 582 of 2012). In it both the petitioners are office bearers of the management Committee of the trust. Petitioner Shyam Prakash Ji is the manager of the trust. Hans Prakash Ji Maharaj is the chairperson of the trust. Chairperson has also filed civil suit against the first informant and others with regards to constitution of management Committee of the trust. If in his capacity as Manager, petitioner Shyam Prakash opened any bank account in the name of the trust, it does not prima facie makes out any offence against him.

16. In fact, the management Committee constituted by the first informant has been disapproved by the prescribed authority, under Section 25 of the Act, by the order dated 18.10.2012.

17. Civil suit, it is informed is still pending between the parties. Therefore, the Court is of the view that in the instant case even if the allegations made in the first information report, regarding opening of the bank account by the petitioner Shyam Prakash are taken at their face

value and accepted in their entirety, they do not prima-facie constitute any offence or make out case against the petitioner.

18. Moreover, if the allegations are considered as whole it has no “element of criminality”. Therefore, this Court is of the view that continuation of the proceedings would be nothing but abuse of the process of law. It is case which warrants interference under Section 482 of the Code. The entire proceedings of the criminal case deserve to be quashed.

19. Accordingly, both the petitions are allowed.

20. The proceedings of Criminal Case No.1906 of 2013, under Sections 420, 467, 468, 471, 120-B IPC, pending in the court of Chief Judicial Magistrate, Haridwar are hereby quashed.

21. Let copy of this judgment alongwith Lower Court Record be transmitted to the court below for compliance.

(Ravindra Maithani, J.) 18.10.2019