IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.336 of 2010 1. MD. SHOAIB ALAM son of Late Abdul Latif, Resident of village- Khajraha, Police Station- Salakhua, District- Saharsa, Secretary Islamia High School, Simri Bakhtiarpur, District- Saharsa. 2. Md. Mustaqeemuddin son of Late Abdur Rahman, Resident of village- Chikni, P.O. Rahua, P.S. Sour Bazar, District- Saharsa, Retired Headmaster, Islamia High School, Simri Bakhtiarpur, District- Saharsa. 3. Md. Mahfooz Alam son of Mr. Md. Naqui Ahmad, Resident of village- Masjid Road, Simri Bakhtiyarpur, P.S. Bakhtiyarpur, District- Saharsa, Presently clerk in Islamia High School, Simri Bakhtiarpur, District- Saharsa. . . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Superintendent of Police, Saharsa 3. S.D.P.O., Simri Bakhtiyarpur, Saharsa. 4. Officer-in-charge, Salakhua, District- Saharsa. 5. Investigating officer, Banma O.P., P.S. Salakhua, Saharsa. 6. Md. Masoodul Haque son of Ataul Haque, Resident of Village- Pahlam, P.O.- Paharpur, P.S.- Salakhua, District- Saharsa. 7. Md. Noor Alam son of Late Md. Qeyamuddin, Secretary Islamia High School, Simri Bakhtiarpur, District- Saharsa. . . . . . . . . Respondents. ----------- 9/ 02.11.2010 Heard learned counsel for the petitioners and the State. All the three petitioner seek quashing of the First Information Report of Salakhua P.S. Case no. 113 of 2006 under Sections 406, 409, 467, 468, 471 and 120 B of the Indian Penal Code. They further pray to restrain the respondents from investigating the alleged offences and for arresting them. The prosecution case in short made out on written report of respondent no.6, Md. Masoodul Haque, is as follows: The informant alleged that after death of one Md. Hasan in 1993, petitioner Md. Shoaib Alam declared himself as Secretary of Islamia High School, Simri Bakhtiarpur within the district of Saharsa. The complainant states that he is the Joint Secretary of the newly constituted Managing Committee of the school, which was duly constituted by local people of Simri Bakhtiarpur in presence of 2 the Sub-Divisional Officer, Simri Bakhtiarpur. In spite of repeated demand by District Education Officer, Saharsa neither Md. Shoaib Alam (petitioner no.1) nor Md. Mustaqeemuddin (petitioner no.2) were able to produce any bye-laws of the school, as the school till then did not have any registered bye-laws itself. The District Education Officer, Saharsa recommended to the Director, Secondary Education, Bihar, Patna to recognize the Managing Committee of the complainant constituted on 21.09.2003. He further states that the accused persons preferred a writ application before the High Court against which the said recommendation, which was dismissed as withdrawn. The Director, Secondary Education granted approval to the recommendation of the District Education Officer, Saharsa to the New Managing committee with the condition that it shall prepare bye-laws and get it registered with the I.G. registration, Patna. The accused persons continued to create problem in the functioning of the school administration and in spite of repeated request they did not hand over the up-to-date account book and the other relevant registers. He alleges that the entire income has been embezzled by the accused persons. He further alleged that accused persons have embezzled a sum of Rs. 5,88,000/-, which was earned from the landed property of the school. Besides this, the accused persons extorted a sum of about Rs. 1,50,000/- from the students in the name of development charges, but the same was not deposited in the account. He alleged that accused persons embezzled about Rs. 7,08,000/-. On 03.05.2010, this Court issued notices to respondent 3 nos. 6 and 7 and observed that till further orders, no coercive action shall be taken against the petitioners in the instant case. The informant (respondent no.6) appeared and filed counter affidavit. Learned counsel for the petitioners submits that petitioner no.1 was appointed as Secretary of the Managing Committee of the Islamia High School, Simri Bakhtiyarpur from 1998 till February 2006. The petitioner no.2 was old Senior Teachar of Islamia High School, Simri Bakhtiyarpur, who was given charge of headmaster in October, 2000. Petitioner no.3 is an old employee of the school working since 1980. The petitioners submit that the allegations in the First Information Report are absolutely false and mischievous. The District Education Officer, Saharsa has no jurisdiction to hold a public meeting earlier for constituting a new Managing committee when the life of the existing Managing committee was extended up to 12.02.2006. They submit that the claim of Md. Masoodul Haque that the President and Secretary of the Managing committee were nominated / appointed by public is false. The petitioner no.1 functioned as Secretary and was replaced by respondent no.5 on 23.02.2006. Learned counsel for petitioners submits that the opposite parties in league with others in order to usurp management of the school constituted a parallel illegal managing committee of the school wherein respondent no.6 claimed to be the Joint Secretary and Md. Ataul Haque claimed himself to be the Secretary. He further submits that so-called Managing committee through Md. 4 Ataul Haque has filed C.W.J.C. No. 1190 of 2006 for direction to the Director (Secondary Education), Human Resources Development Department, Government of Bihar, Patna and District Education Officer, Saharsa to recognize their Managing committee, which is still pending. After filing of C.W.J.C. No. 1190 of 2006, respondent no.6 filed the instant case. He further submits that respondent no.6 is a Joint Secretary of the purported rival Managing Committee and has no locus standi to institute this case. In paragraph 23, the allegation regarding embezzlement has been denied. He further submits that the I.G. registration has returned all documents filed by the prosecution side, filed by them for registration of its by-laws. He submits that the complainant himself is a trespasser and encroacher. A counter affidavit has been filed on behalf of the respondent nos. 2 to 5, wherein in paragraph no.8 of the counter affidavit it is stated that the allegations made in complaint disclose offence. He submits that the police is making due investigation into the case. The informant (respondent no.6) too has appeared and filed counter affidavit. He has refuted counter allegations made by the petitioners. In paragraph no. 17, the informant has reiterated the allegation of embezzlement committed by the accused persons. He submits that the allegations constitute a cognizable offence and if the offences disclose a cognizable offence, this Court would not quash the same at the threshold. Learned Counsel for respondent no.6 in support of his 5 submissions, relied upon decisions in case of State of Andhra Pradesh Vs. Vangaveeti Nagaiah, reported in (2010) 1 SCC (Cri) 580. He states that the Hon’ble Apex Court therein observed in the aforesaid case that that interference at the threshold with the FIR is to be made in very exceptional circumstances. The Hon’ble Apex Court further observed that whether the material already in existence or to be collected during investigation would be sufficient for holding the accused persons concerned guilty, has to be considered at the time of trial. Even at the stage of framing of charge / evidence cannot be gone into meticulously and it is immaterial whether case is based on direct or circumstantial evidence. Learned counsel also relied upon decisions in case of R. Kalyani Vs. Janak C. Mehta & Ors, reported in (2009)1 SCC 516, R. P. Kapu & Ors. Vs. State of Punjab, reported in AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335. On the other hand, the petitioner submits that this is a fit case in which this Court under writ jurisdiction can quash the prosecution case. He further submits that the allegations at the most would form a civil dispute or one of the accounting. In support of his submissions, learned counsel has relied upon decisions in case of Ramesh Dutt & Ors Vs. State of Punjab & Ors, reported in (2009) 15 SCC 429; Jugesh Sehgal Vs. Shamsher Singh Gogi, reported in (2009) 14 SCC 683; M.N. Ojha & Ors. Vs. Alok Kumar Srivastav & Ano., reported in (2009) 9 SCC. In the case of Ramesh Dutt (supra) the appellants were 6 aggrieved by the judgment and order dated 27.5.2008 passed by the learned Single Judge of High Court of Punjab and Haryana, where under the application filed by them purported to be under section 482 Cr.P.C. for quashing the F.I.R. instituted under sections 420, 465, 467, 468, 471 and 120B of the Penal Code was dismissed. The appellants were members of the Managing Committee of local school in Ludhiana. The Society was registered under the Societies Registration Act in the year 1982. In pursuance of a decree of possession the appellants sold part of the land to one M/s Everest Girls School and utilized the sale proceeds for construction of 16 rooms in the existing school. The appellants also filed a civil suit in the court of Civil Judge of Ludhiana wherein order of status quo was passed restraining the defendants from interfering in construction. Subsequently, a F.I.R. was instituted against the appellants for cheating. It was alleged that order of mutation in favour of the appellants were cancelled. The Apex Court held that the appellants being in possession of the land pursuant to decree, sold some lands and started construction. In this context the Apex court held that unless there exists statutory interdict, a person in possession may transfer his right, title and interest in favour of a third party. The Apex Court further held that only because the appellants are said to have transferred a portion of the property without having complete ownership over it by itself satisfied ingredients under sections 467, 468, 469 of the Penal Code would not be made out. In the aforesaid context the Apex Court quashed the criminal prosecution. The aforesaid judgment would not be applicable in the facts of the 7 instant case, where there is an allegation of embezzlement and misappropriation of money. The case of Jugesh Sehgal Vs Shemsher Singh Gogi (Supra), relied upon by the petitioner would not be applicable in the facts of the case, as it was dealing with a case of dishonour of cheque under section 138 of the Negotiable Instruments Act. The Apex Court held that all ingredients need to be satisfied before a person who had drawn the cheque can be prosecuted for an offence under section 138 Cr.P.C. Reiterating the principles laid down in Bhajan Lal Case, the Apex Court further held that though the power under section 482 Cr.P.C. is very wide but this should be exercised in an appropriate cases to do ex debitio justitiae, to do substantial justice in the administration of which, alone court exits. The Apex Court cautioned that inherent power do not confer an arbitrary jurisdiction on the High Court to act according to whim or capries. The power under section 482 Cr.P.C. quashing prosecution case at threshold is to be exercised very sparingly with circumspection and in the rarest cases; where on the basis of the materials on record, allowing the proceedings to continue, would be an abuse of the process of the court or that ends of justice require that the proceedings be quashed. The next case relied upon by the petitioners is the case of Devendra & Ors Vs State of U.P. (supra). In the aforesaid case the Apex Court held that where a dispute is of purely civil nature and no offence is made out from allegations in the F.I.R., initiation of a criminal proceedings under section 420, 467, 468, 469 of the Penal 8 Code was unjustified and was quashed. There cannot be any dispute to the law laid down by the Hon’ble Apex Court in this regard. In the aforesaid case, there was a dispute between co-sharers in relation to their respective shares. Some of the co-sharers sold their shares to a third party. The other co-sharer lodged a F.I.R. under sections 420, 467, 468, 469 of the Penal Code leveling allegations that the accused persons executed a deed of sale in favour of a third party stating that they had 1/3 share in the joint property though they were not entitled thereof. The appellants moved the High Court for quashing the F.I.R. which was dismissed. Thereafter the appellants had moved the Hon’ble Apex Court against the order of the High Court refusing to quash the F.I.R. The Hon’ble Apex Court held that no transaction was entered into between the plaintiff and the appellant and as such by reason of alleged act of the appellants it cannot be said that the complainant had been cheated. Threat to other co-sharers regarding their dispossession at the hand of vendor co-sharer or third party can be well agitated in a proceeding under sections 144 of 145 Cr.P.C. The Apex Court further observed that making of a false document is a sine qua none of forgery. The Apex Court observed that what is necessary that the document alleged must have been executed with the intention causing it to be believed that such document inter alia was made by the authority of a person by whom and whose authority he knows that it was not made. It was further observed that in such circumstances if any one was aggrieved, was the vendee and not the aggrieved co-sharer. In these circumstances, the Apex Court held that the dispute essentially is of civil one and no criminal 9 offence is made out. The petitioner next relied upon a case of M.N. Jha & Ors (supra). In the aforesaid said the Apex Court held that while exercising inherent power, court can consider whether the proceeding initiated is motivated one. In the aforesaid case, the Supreme Court found that the complainant filed a case against the appellant Bank officials, as counter blast of the action taken by them in their official capacity for realizing the loan amount. The Apex Court noticed that intention behind institution of criminal proceeding was to prevent public servant from discharging their duties in terms of Debts Due to the Bank and Financial Institution Act, 1993. In these circumstances the Apex Court held that complaint filed by the respondent was clearly an abuse of judicial proceeding to harass the appellant. The Apex Court further observed that averments and allegations made in the complaint does not disclose a case under sections 409, 420, 422, 426 and 120B of the Penal Code and as such quashed the criminal prosecution. The facts of the instant case are different wherein allegations of embezzlement and misappropriation have been made against the petitioners and others. In view of the aforesaid discussions, I do not find this case to be a fit case in which either the F.I.R. or investigation can be quashed at threshold. It cannot be said that the allegations leveled in the prosecution case forms purely a civil dispute. As the prosecution case, prima facie at this stage makes out a cognizable offence, as such, I am not inclined to quash the criminal prosecution. 10 Nonetheless the petitioners would be at liberty to file a representation before the police authorities who would look into the matter in accordance with law. No coercive steps would be taken against the petitioners for four weeks in order to enable them to explain their case before the authorities concerned. It would be open to the petitioners to move appropriate court, if they are aggrieved by any subsequent development. With the aforesaid observations and directions, this writ petition stands disposed of. Uday/ (Samarendra Pratap Singh, J.)