State of U.P. and Others vs Sushil Kumar Katiyar

Mahendra Dayal, J.—1. The aforesaid criminal revision and the petition under Section 482 Cr.P.C., arise out of the same judgment and order, therefore, both the aforesaid cases are being decided together by a common judgment.

The matter in both the cases relate to embezzlement of money of Shram Nirman Sahkari Sangh, Lucknow which is a Cooperative Society registered under the U.P. Cooperative Societies Act, 1965. The criminal proceedings relating to both the aforesaid cases arose when the then Managing Director (Administration), Shri P.N. Singh Yadav lodged an FIR on 21.02.2012 with the Police Station Husainganj, Lucknow naming seventeen persons. However, the police registered the FIR only against two persons. Those persons were Chief Engineer and Accountant of the Society. The opposite party in Criminal Revision No. 348 of 2015 is Sushil Kumar Katiyar, who was neither named in the FIR nor the FIR was registered against him. He was elected Chairman of the Society. After a detailed investigation, charge-sheets were filed and in one of the charge-sheets, the opposite party Sushil Kumar Katiyar was also made accused. The total accused, who were charge-sheeted were fifteen in number. The charge against Sushil Kumar Katiyar was that he during his Chairmanship in the aforesaid Society appointed one Mr. Pradeep Singh, Advocate as his P.R.O, who with his connivance misappropriated funds of the Society. The allegation against one of the accused Pankaj Tripathi, General Manager (Administration) was that he along with other persons on 02.04.2011 gave bribery of Rs. 5.00 crores to Shri Badshah Singh, Minister. It was also alleged that the opposite party Sushil Kumar Katiyar provided his vehicle and armed guard to Pankaj Tripathi and thus committed the offence of abatement under the provision of Prevention of Corruption Act. Another allegation against the opposite party Sushil Kumar Katiyar is that Rs. 45.00 lacs bribery was given to Shri Babu Singh Kushwaha the then Minister and Rs. 10.00 lacs were given to Shri Ram Bodh Maurya, who was the then Director. The allegation against the opposite party is that he had participated in the payment of said bribe to these persons and, therefore, he also committed the offence of abatement under the Prevention of Corruption Act. Before the charge-sheet could be filed against the accused-persons, the opposite party Sushil Kumar Katiyar approached this Court for quashing of the FIR by means of filing Writ Petition No. 8114 (MB) of 2012. This writ petition was disposed of by a Division Bench of this Court on 01.02.2013. The relevant portion of the order is reproduced as below:-

"We are of the view that it is always open to the State to move appropriate application before the court concerned seeking police custody of an accused at the time he surrenders before the court concerned. Accordingly, we accept the request of learned counsel for the petitioner and dispose of the writ petition with the direction that if the petitioner surrenders before the court concerned and moves an application for bail in the aforesaid case crime number, the same shall be considered and disposed of expeditiously by the courts below. It is further provided that if the State moves any application seeking police custody of the petitioner, the same shall also be considered and disposed of at the time of consideration of application for bail moved by the petitioner, if any.

With the aforesaid observations, the writ petition stands disposed of finally."

After the charge-sheet was filed against the accused persons including Sushil Kumar Katiyar, he again approached this Court for quashing of the charge-sheet by way of filing a petition under Section 482 Cr.P.C. being Criminal Misc. Case No. 1964 of 2014. In this petition, it was alleged that the writ petition filed by him for quashing of the FIR was initially dismissed on 01.10.2012 against which the opposite party Sushil Kumar Katiyar approached Hon''ble the Apex Court by way of filing Special Leave Petition (Criminal) No. 8414 of 2012, which was disposed of on 30.11.2012 and the order dated 01.10.2012 passed by this Court was quashed and this Court was directed to decide the matter afresh and pass order giving reasons. Thereafter, the writ petition once again came up for hearing and this time by the order dated 01.02.2013 referred to above, the writ petition was disposed of.

In the petition under Section 482 Cr.P.C. being Criminal Misc. Case No. 1964 of 2014, an interim order was passed on 21.05.2014 to the effect that till the next date of listing, the non-bailable warrant issued against him shall be kept in abeyance. The main ground for quashing of the charge-sheet is that the opposite party Sushil Kumar Katiyar was a public servant within the meaning of public servant as contained in the provision of Prevention of Corruption Act and the prosecution did not take any sanction as required under Section 197 Cr.P.C. before filing of the charge-sheet and as such the impugned order of taking cognizance against him is bad. It appears that before final disposal of this petition, the opposite party Sushil Kumar Katiyar moved an application for discharge under Section 227 Cr.P.C. and by the impugned judgment and order dated 17.03.2015, the learned Special Judge, E.C. Act, Lucknow by passing a detailed order discharged the opposite party Sushil Kumar Katiyar of the offences under Section 401, 420, 120-B IPC and Section 7, 13(2)(d) and 12 of the Prevention of Corruption Act. However, the learned court below found that the charge-sheet filed for the offence under Section 174-A IPC was made out and there is sufficient evidence to proceed against him for the trial of the offence under Section 174-A IPC.

Feeling aggrieved by the discharge of the opposite party Sushil Kumar Katiyar of the scheduled offences, the State has filed Criminal Revision No. 348 of 2015 and the opposite party Sushil Kumar Katiyar being aggrieved by the order for framing charge under Section 174-A IPC, has challenged the aforesaid order by filing a petition under Section 482 Cr.P.C. which is being considered along with the criminal revision. The opposite party Sushil Kumar Katiyar is aggrieved by the order, whereby the learned court below has proceeded to frame charge against him under Sections 174-A IPC.

I have heard Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Sanjay Tripathi Mani Tripathi on behalf of Sushil Kumar Katiyar and Shri R.K. Dwivedi, learned AGA for the State.

It has been contended on behalf of the State that it is not disputed that the opposite party Sushil Kumar Katiyar was not named in the FIR, but after the investigation sufficient evidence was found against him and accordingly he was charge-sheeted along with other persons. It has further been submitted that the opposite party Sushil Kumar Katiyar had approached this Court for quashing of the FIR by way of filing Writ Petition No. 8114 (MB) of 2012, which was initially dismissed, but when the opposite party approached Hon''ble the Apex Court, the said order was quashed and this Court was directed to consider the writ petition again upon which this Court after reconsideration, disposed of the writ petition vide order dated 01.02.2013 and it was directed that if the opposite party surrenders before the court below and move an application for bail, the same shall be considered and disposed of expeditiously by the courts below. It was further provided that if the State moves any application seeking police custody, the same shall also be considered and disposed of at the time of consideration of the application of bail moved by the opposite party, if any. The submission of the learned AGA is that after the aforesaid order, the opposite party never appeared before the court below and thus, disobeyed the order passed in writ petition, referred to above. He instead of seeking bail, moved an application for discharge, which was considered by the court below and by means of the impugned order, the opposite party was discharged of the scheduled offences. The submission on behalf of the State is that the learned court below ought not to have entertained the application for discharge moved by the opposite party without his personal appearance and consideration of his bail as directed by this Court. It has also been contended by the learned AGA that in the meantime, the trial proceeded against other charge-sheeted accused persons and the trial ended in acquittal of certain accused persons but some of the accused persons were convicted. The learned court below while considering the discharge application moved by the opposite party Sushil Kumar Katiyar, has also taken into consideration the judgment rendered in Criminal Case No. 4/2012, whereby some of the accused persons were acquitted and some were convicted. The contention is that it was not open for the court below to have considered any material which was beyond the case diary and the evidence collected during the investigation. The consideration of the judgment of acquittal of some of the accused persons could not have been made the basis for discharge of the opposite party. It has also been submitted on behalf of the State that the principle of "stare decisis" does not apply in the case of the opposite party for the simple reason that the evidence collected during the investigation in respect of each of the accused persons, is different. Moreover, the court at the time of considering the discharge application, is not required to go into the detailed inquiry. The court is only required to consider as to whether on the basis of material collected during investigation, prima-facie offence is made out against the accused or not. But in the present case, learned court below has proceeded like a trial court and after considering the entire evidence has recorded a finding that no offence is made out against the opposite party.

Learned AGA has relied upon several decisions of Hon''ble the Apex Court in this regard. First judgment is reported in , 2009 (65) ACC 399 - Palwinder Singh v. Balwinder Singh & Ors. In this case, Hon''ble the Apex Court has held that the appreciation of evidence at the time of framing of the charge is not permitted. The jurisdiction of the Court while exercising powers under Section 227 Cr.P.C. is limited. Charge can be framed only on the basis of strong suspicion. The appreciation of the evidence is not to be taken by the Court at that point of time.

Another judgment upon which the State has placed reliance, is reported in , (2005) 1 SCC Page 568 - State of Orissa v. Debendra Nath Padhi. In this case also, Hon''ble the Apex Court has also held that the trial court cannot consider any material filed by the accused at the time of framing of charge. The Court at this stage can only consider the material produced by the prosecution. No provision in Cr.P.C. permits the accused any right to file any material or document at the stage of framing of charge.

In the case reported in , (2008) 2 SCC Page 561 - Onkar Nath Mishra & Ors. v. State of Delhi. The Hon''ble Apex Court has held that at the time of framing of charge, the Court is not expected to go deep into the probative value of the material on record.

Similar view has been expressed by Hon''ble the Apex Court in the case of Sajjan Kumar v. Central Bureau of Investigation, reported in , (2010) 9 SCC Page 368.

It has also been contended on behalf of the learned AGA that every case turns on its own facts and evidence as may be adduced. The court at the initial stage of framing of charge is not required to go into the question as to whether the trial would be ended in conviction or acquittal. It would depend upon the evidence produced during the course of trial.

With regard to the petition filed by the opposite party Sushil Kumar Katiyar under Section 482 Cr.P.C. for quashing of the order of the trial court by which the learned trial court has proceeded to frame charge against the opposite party under Section 174-A IPC, the submission of the learned AGA is that after the orders of this Court giving liberty to the opposite party to surrender before the court below, the learned court below firstly issued warrant against the opposite party for his appearance, but when he did not appear, the process under Sections 82 & 83 Cr.P.C. was issued.

The offence under Section 174-A IPC is attracted when an accused fails to appear at the specific place and specific time as required by a proclamation published in sub-section (1) of Section 82 Cr.P.C. For the offence of Section 174-A IPC, the accused is liable to be punished with imprisonment for a term, which may extended to three years or with fine or with both.

It has been submitted by the learned AGA that inspite of warrant and proclamation issued under Section 82, the opposite party Sushil Kumar Katiyar did not appear before the court below and as such the offence of Section 174-A IPC is fully attracted in this case and the learned court below has rightly taken cognizance and has proceeded to frame charge for the aforesaid offence.

In support of his argument that the judgment rendered by the trial court in respect of other accused persons cannot be taken into consideration while considering the discharge application of another co-accused, the learned AGA has placed reliance upon several decision in which one is reported in , 2006 (1) SCC Page 191 - Rajan Rai v. State of Bihar. In this case, Hon''ble the Apex Court has held that the judgment of acquittal of co-accused rendered in earlier trial arising out of same transaction was wholly irrelevant in the case of the present accused who was tried separately. It may be possible that the co-accused were acquitted on the basis of evidence led against them, but so far as other co-accused persons are concerned, they have to be tried separately and the evidence produced against them would be considered by the trial court during the course of trial. The acquittal of other co-accused cannot be made basis for discharge of the other co-accused. Similar view has been expressed by this Court in a case reported in , 2006 (1) JIC Page 887 (All) - Raj Dularey Shukla v. State.

Shri Jyotindra Mishra, learned Senior Counsel appearing on behalf of the opposite party Sushil Kumar Katiyar has argued that it is absolutely wrong to say that the learned trial court while considering the discharge application of the opposite party, took note of the judgment by which several co-accused persons were acquitted and some were convicted. The learned court below has considered only that much material which was available on record and was collected by the Investigating Officer during the course of investigation. The learned court below on the basis of material available on record has found that the opposite party Sushil Kumar Katiyar has not committed any offence. The Society in which the opposite party Sushil Kumar Katiyar was Chairman, was constituted under the provisions of U.P. Cooperative Societies Act, 1965. As per the constitution of the society, there was a Managing Director, who was also Chief Executive Officer of the Society and has the general control over the administration of the society. The entire financial powers are vested in the Managing Director for the proper maintenance and custody of the cash and other properties connected with the society. The submission of the learned Senior Advocate is that the constitution of the committee and the provision of Section 31-A clearly provide that the financial power is vested with the Managing Director, who is empowered to receive and expend cash in any manner whatsoever. He is also under obligation to maintain and operate the accounts in Bank. The Chairman of the Committee has no concern with the financial matters as he has no financial liability.

It is not disputed that the opposite party Sushil Kumar Katiyar was elected as Chairman of the Society and the Committee of Management was constituted on 06.04.2010 which remained effective till 10.01.2012. As per U.P. Cooperative Societies Act, the power of the Chairman is only to control, supervise and guide the affairs of the business of the society and exercise such powers which are conferred on him by the Act. The Chairman has no control over the Managing Director in the financial matters. The opposite party during his period of chairmanship in the Society discharged his duty honestly in accordance with law. There was absolutely no complaint against him either any officer of the Society or the public. He was never entrusted with any cash or cheque. The opposite party Sushil Kumar Katiyar when came to know that the then Managing Director, Shri B.P. Singh and others have committed illegality, he himself made a complaint of this matter to the authorities. The complaint made by the opposite party Sushil Kumar Katiyar was acted upon and a Committee of three officers was constituted to conduct an inquiry. The committee after inquiry found that the Chief Engineer, Shri Govind Saran Srivastava and Accountant Shri Anil Kumar Agarwal and others had embezzled the money of the Society and had committed financial irregularities. No allegation was made against the opposite party Sushil Kumar Katiyar. It was on the basis of the aforesaid inquiry report that the General Manager (Administration), Shri P.N. Singh Yadav lodged an FIR upon which a case was registered and after investigation charge-sheet was submitted.

The allegation against the opposite party that during his tenure, he appointed Shri Praveen Singh, Advocate as his P.R.O., is absolutely baseless as the opposite party being Chairman of the Society had no power to appoint P.R.O. and it has been held by the learned trial court after full trial. It has further been submitted by the learned Senior Advocate that even if the statements of the witnesses recorded during investigation are being taken consideration, the allegation of bribery is against Badshah Singh and others. The learned court below while considering the discharge application has taken into account only the material which was placed before the court and was collected during the course of the investigation. The learned court has nowhere quoted the judgment of the trial court and has nowhere made basis of that judgment to discharge the opposite party. Learned Senior Advocate has relied upon a decision of Hon''ble the Apex Court reported in , AIR 2010 SC Page 663 - P. Vijayan v. State of Kereala & Anr. In this case, Hon''ble the Apex Court has held that a Judge while taking cognizance of the offence is not a mere Post Office to frame the charge at the behest of prosecution, but he has to exercise his judicial mind to the facts of case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It has also been held by Hon''ble the Apex Court that if two views are equally possible and the Judge is satisfied that the evidence produced before him gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused in exercise of jurisdiction under Section 227 Cr.P.C.

In the case of Yogesh v. State of Maharashtra, reported in 2008 SCC Page 394, the Hon''ble Apex Court has held that the words "not sufficient ground for proceeding against the accused" appearing in Section 227 Cr.P.C. postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The test to determine a prima facie case depends upon the facts of each case and in this regard no rule of universal application can be laid down. At this stage, the Court is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible.

In the present case, a perusal of the impugned order reveals that the learned court below has considered the material on record and has also considered the powers and functions of the Chairman of the Society. The investigation has been conducted by the then Circle Officer, Special Crime Branch and he has recorded the statement of the witnesses several times under Section 161 Cr.P.C. The learned court below had discussed the evidence of all the witnesses, who were interrogated during investigation and has come to the conclusion that the investigating officer after conclusion of evidence has implicated the opposite party Sushil Kumar Katiyar only in order to make him accused in this case while there is absolutely no evidence against him. The learned court below has also recorded a finding that there is absolutely no evidence to the effect that the opposite party forged any document or misappropriated any fund of the Society.

I have also examined the material which has been made available to this Court during the course of arguments and have gone through the evidence collected by the Investigating Officer during investigation and on the basis of the evidence on record and the order passed by the court below, I do not find any illegality or infirmity in the order passed by the court below.

From the perusal of record of the lower court, it transpires that the application for discharge was moved by Sushil Kumar Katiyar on 23.02.2015. The said application for discharge was disposed of on 17.03.2015. In the intervening period, the opposite party Sushil Kumar Katiyar has appeared before the court below either in person or through his counsel. In these circumstances, it cannot be said that the learned court below heard and disposed of the application for discharge without the appearance of Sushil Kumar Katiyar. The order-sheet of different dates bears the signature of Sushil Kumar Katiyar.

So far as the petition under Section 482 Cr.P.C. with regard to quashing of the charge-sheet under Section 174-A IPC is concerned, the submission on behalf of Shri Sushil Kumar Katiyar is that the learned court below could not have taken cognizance of the offence under Section 174-A IPC as the same is barred by Section 195 Cr.P.C. It has been submitted that Section 195 Cr.P.C. prohibits the Court from taking cognizance of any offence punishable under Sections 172 to 188 IPC except upon a complaint in writing by the public servant concerned or of some other public servant to whom he is administratively subordinate.

The submission on behalf of the learned Senior Advocate is that for the offence under Section 174-A IPC there has to be a complaint by public servant. The police cannot conduct an investigation and submit charge-sheet for the offence under Section 174-A IPC.

In reply to the aforesaid argument, learned AGA has submitted that the offence of Section 174-A IPC has been added by the Amendment in IPC w.e.f. 23.06.2006 while Section 195 Cr.P.C. was enacted in the year 1973. The benefit of Section 195 Cr.P.C., therefore, shall not be available to the petitioner.

I do not find any force in the argument submitted by the learned AGA for the reason that by adding the offence of Section 174-A IPC, the Cr.P.C. was not amended and Section 195 Cr.P.C. clearly bars the Court from taking cognizance of any offence, which are punishable under Sections 172 to 188 IPC. Moreover, the opposite party Sushil Kumar Katiyar has been discharged from the scheduled offences and permitting the prosecution of the opposite party under Section 174-A IPC would not serve the ends of justice. Apart from this, Hon''ble the Apex Court has held that the provision of Section 195 Cr.P.C. is mandatory and the Court has no jurisdiction to take cognizance of any offence mentioned therein unless there is complaint in writing by the public servant.

Learned Senior Advocate appearing on behalf of Sushil Kumar Katiyar has drawn the attention of the Court towards the record of the court below and has argued that the discharge application was disposed of on 17.03.2015 and thereafter without giving any opportunity, the learned court below framed charge under Section 174-A IPC on 17.03.2015 itself.

A perusal of the record indicates that in the year 2004, the file of the opposite party Sushil Kumar Katiyar was separated from other co-accused and thereafter non-bailable warrant of arrest was issued against him as he was not appearing in the case. The order-sheet further reveals that till 23.02.2015 the order issuing non-bailable warrant was repeated when the application for discharge was moved by Sushil Kumar Katiyar. Prior to it proclamation under Sections 82/83 Cr.P.C., was issued and on 07.12.2012 the movable properties available at his residence were attached. An entry to this effect was made in the case diary, a copy of which is available on record of the court below. The learned court below has not discussed as to how the Court was satisfied that the offence under Section 174-A IPC is made out against Sushil Kumar Katiyar. The learned court below has only indicated in the order that since the order passed under Section 82 Cr.P.C. was not challenged by Sushil Kumar Katiyar before any court, therefore, simply staying his arrest by the High Court would not absolve Sushil Kumar Katiyar from the liability of being punished under Section 174-A IPC. In the counter affidavit filed on behalf of the State, it has been stated that the newly created offence under Section 174-A IPC is outside the purview of Section 195 Cr.P.C. and as such submission of the charge-sheet by the police under Section 174-A IPC is well within jurisdiction.

While exercising the power under Section 482 Cr.P.C., this Court is fully empowered to examine the correctness of the order passed by the court below and also to examine the material so as to come to a conclusion as to whether any offence is made out against the accused person or not. The charge-sheet under Section 174-A IPC has been filed against Sushil Kumar Katiyar on the ground that after the service of proclamation under Section 82 Cr.P.C., he did not appear on the specified date and time. The learned court below has not discussed in the impugned order as to when the process under Section 82 Cr.P.C. was issued and on which date he had to appear and whether after the attachment of movable properties, the proceedings of criminal case under Section 174-A IPC can be continued. It has also not been considered by the learned court below that cognizance of an offence under Section 174-A IPC can be taken only on a written complaint by public servant and not on the basis of the charge-sheet submitted by the police. In this view of the matter also, cognizance of offence under Section 174-A IPC is not according to law and moreover Sushil Kumar Katiyar has already been discharged from the scheduled offences, therefore, permitting to continue the proceedings of criminal case under Section 174-A IPC against Sushil Kumar Katiyar would only amount to his harassment which is not the intention of the legislature.

In view of what has been discussed, I am of the view that the criminal revision filed by the State against the order discharging Sushil Kumar Katiyar from the scheduled offences is liable to be dismissed while the application under Section 482 Cr.P.C., filed by Sushil Kumar Katiyar for quashing of the proceedings of Criminal Misc. Case No. 4-A/2012, under Section 174-A IPC are liable to be quashed.

In the result, the Criminal Revision No. 348 of 2015 filed by the State is dismissed and the application under Section 482 Cr.P.C. filed by Sushil Kumar Katiyar is allowed and the proceedings of the entire Criminal Misc. Case No. 4-A/2012, arising out of Case Crime No. 64/2012, under Section 174-A IPC are hereby quashed.