Reserved on 02.09.

2022
Delivered on 12.09.2022
Court No. - 84

Case :- APPLICATION U/S 482 No. - 11924 of 2022

Applicant :- Dr. Meraj Ali And Another

Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pradeep Kumar Upadhyay
Counsel for Opposite Party :- G.A.,Suresh Chandra Dwivedi

Hon'ble Saurabh Shyam Shamshery,J.

1. Applicants are facing trial arising out of First Information Report

dated 17.07.1999, being Case Crime No. 438 of 1999 for allegedly
committing offences under Sections 420, 467, 468 IPC. After investigation
charge sheet was filed on 18.11.2000 and cognizance was also taken. The
applicants filed an application for discharge under Section 239 Cr.P.C. on
23.12.2021 which has been rejected by means of impugned order dated
09.03.2022.

2. Facts of the present case are that an election of Society, namely, “All
India Muslim and Rehabilitation Education Society, Aligarh” was conducted
on 15.03.1998 and applicants and others were declared office bearers of
Society and Opposite Party No. 2 and others were defeated.

3. Dispute arose between elected and defeated office bearers of Society

which led to filing a civil suit by applicants on 03.11.1998 against Opposite
Party No. 2/ Complainant for permanent prohibitory injunction against
Opposite Party No. 2 and its agents, servants, friends and associates, to
restrain them for interfering in the functioning and management of plaintiffs
(applicants herein). Opposite Party No. 2 (defendant in suit) initially not
appeared in suit proceedings and approached the Magistrate by way of filing
application dated 17.07.1999 under Section 156(3) Cr.P.C. and on the basis
of direction passed by Magistrate concerned, First Information Report,
referred above, was lodged alleging that applicants have committed forgery
and cheating and a fraudulent election was conducted wherein presence of
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some of members was wrongly shown and even the signatures of members
were forged. Investigation commenced and meanwhile in the suit
proceedings by order dated 06.11.1998 an ex parte interim injunction was
granted restraining Opposite Party No. 2 (defendant in suit) in the working
of Society. Suit is still pending and presently it is at the stage of recording of
evidence and defendants therein have also appeared. Meanwhile,
investigation remained pending for one or another reason and finally charge
sheet dated 18.11.2000 was filed against applicants for above referred
offences. It appears that trial could not proceed due to one or other reason
and finally the discharge application dated 23.12.2021 was filed, which was
rejected by means of impugned order dated 09.03.20022.

4. Sri Pradeep Kumar Upadhyay, learned counsel for applicants,

submitted that the election of Society was fairly conducted by Election
Officer and list of elected members was duly submitted to the office of
Registrar of Societies. Opposite Party No. 2/ Complainant has not filed any
objection before Registrar of Societies to the process of election or result
thereof. There was interference from the side of Opposite Party No. 2 in the
day-to-day working of Society, therefore, applicants have filed civil suit
wherein interim injunction was granted in their favour restraining Opposite
Party No. 2/ Complaint/ Defendant therein, from any interference in the day-
to-day working of Society. Opposite Party No. 2/ Complaint/ Defendant has
not appeared in civil suit for many years and for one or other reason the suit
is not decided due to their non-cooperation. Learned counsel further submits
that in order to give criminal colour to civil proceedings belated application
was filed under Section 156(3) Cr.P.C. on 17.07.1999, i.e., after a period of
more than 15 months making baseless allegations of cheating and forgery.
The criminal proceedings were initiated only to harass the applicants with
ulterior motive for wreaking vengeance on applicants with a view to spite
him due to private and personal grudge. Since on a similar issue a civil suit
is pending, therefore, criminal proceedings initiated on a belated application
is an abuse of process of law. Learned counsel has placed reliance on a
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judgment passed by Supreme Court in Babu Venkatesh and others vs. State
of Karnataka and another, (2022) 5 SCC 639 and paras 20 and 21 thereof are
reproduced as under:

“20. It could thus be seen that, though this court has cautioned
that, power to quash criminal proceedings should be exercised
very sparingly and with circumspection and that too in the
rarest of rare cases, it has specified certain category of cases
wherein such power can be exercised for quashing proceedings.
21. We find that in the present case, though civil suits have been
filed with regard to the same transactions and though they are
contested by the respondent No. 2 by filing written statement,
he has chosen to file complaint under Section 156 (3) of the
Cr.P.C. after a period of one and half years from the date of
filing of written statement with an ulterior motive of harassing
the appellants. We find that, the present case fits in the category
of No. 7, as mentioned in the case of State of Haryana v. Bhajan
Lal (supra).”
5. The above submissions are vehemently opposed by Sri Munne Lal,
learned AGA for State and Sri Suresh Chandra Dwivedi, Advocate for
Opposite Party No. 2. They submitted that the offence of cheating and
forgery are prima facie made out even on the basis of contents of First
Information Report which has been found true during investigation and
thereafter charge sheet has also been filed. At the stage of discharge
application a Court ought not to enter into question of evidentiary value of
material available as it is impermissible to look into the merit of case while
exercising power under Section 239 Cr.P.C. Entire election proceeding was a
fraudulent act as there was forgery with regarding to putting signatures of
members who were not even present during election proceeding and as such
it is not a case where civil and criminal proceedings cannot go
simultaneously.

6. Heard learned counsel for parties and perused the material available
on record.
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7. Issue of discharge has recently been considered and law has been
reiterated by Supreme Court in Sanjay Kumar Rai vs. State of U.P. and
another, 2021 SCC OnLine SC 367 and relevant part is extracted hereinafter:

“15. In Madhu Limaye (supra), this Court authoritatively held:

“9… Sometimes the revisional jurisdiction of the High Court has
also been resorted to for the same kind of relief by challenging the
order taking cognizance or issuing processes or framing charge on
the grounds that the Court had no jurisdiction to take cognizance and
proceed with the trial, that the issuance of process was wholly illegal
or void, or that no charge could be framed as no offence was made
out on the allegations made or the evidence adduced in Court.
10. … Even assuming, although we shall presently show that it is
not so, that in such a case an order of the Court taking cognizance or
issuing processes is an interlocutory order, does it stand to reason to
say that inherent power of the High Court cannot be exercises for
stopping the criminal proceeding as early as possible, instead of
harassing the accused up to the end? The answer is obvious that the
bar will not operate to prevent the abuse of the process of the Court
and/or to secure the ends of justice. The label of the petition filed by
an aggrieved party is immaterial.
16. The correct position of law as laid down in Madhu Limaye
(supra), thus, is that orders framing charges or refusing discharge are
neither interlocutory nor final in nature and are therefore not
affected by the bar of Section 397 (2) of CrPC. That apart, this Court
in the above-cited cases has unequivocally acknowledged that the
High Court is imbued with inherent jurisdiction to prevent abuse of
process or to secure ends of justice having regard to the facts and
circumstance of individual cases. As a caveat it may be stated that
the High Court, while exercising its afore-stated jurisdiction ought to
be circumspect. The discretion vested in the High Court is to be
invoked carefully and judiciously for effective and timely
administration of criminal justice system. This Court, nonetheless,
does not recommend a complete hands off approach. Albeit, there
should be interference, may be, in exceptional cases, failing which
there is likelihood of serious prejudice to the rights of a citizen. For
example, when the contents of a complaint or the other purported
material on record is a brazen attempt to persecute an innocent
person, it becomes imperative upon the Court to prevent the abuse of
process of law.
17. Further, it is well settled that the trial court while considering the
discharge application is not to act as a mere post office. The Court
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has to sift through the evidence in order to find out whether there are
sufficient grounds to try the suspect. The court has to consider the
broad probabilities, total effect of evidence and documents produced
and the basic infirmities appearing in the case and so on. [Union of
India v. Prafulla Kumar Samal]. Likewise, the Court has sufficient
discretion to order further investigation in appropriate cases, if need
be.”
“19. The High Court has committed jurisdictional error by not
entertaining the revision petition on merits and overlooking the fact
that ‘discharge’ is a valuable right provided to the accused. In line
with the fact that the High Court and the court below have not
examined the fairness of criminal investigation in this case and other
related aspects concerning improvement of witness statements, it is
necessary for the High Court to reconsider the entire matter and
decide the revision petition afresh. Accordingly, we set aside the
impugned order dated 28.11.2018 and remand the case back to the
High Court for its reconsideration in accordance with law.”
8. The Court now proceed to consider the rival submission in the
backdrop of above referred law that, on the basis of material available,
whether there are sufficient ground to try the applicants and whether the
discharge application has rightly been rejected or not.

9. From the above referred facts it is not in dispute that an election was
conducted of the Society concerned on 15.03.1998 by Election Officer
wherein Applicant-1 was elected as General Secretary and Applicant-2 was
elected as President of Society whereas the Complainant was defeated. The
detail of election was also submitted to the office of Registrar of Societies.
Nothing has been placed on record to show that Opposite Party No. 2 has
made any objection or initiated any proceeding as provided under Societies
Registration Act, 1860 (hereinafter referred to as “Act, 1860”) before
appropriate authority. On the other hand, applicants being aggrieved by
interference in day-to-day working of Society after election by Opposite
Party No. 2 and his agents, filed suit for permanent prohibitory injunction on
06.11.1998 wherein initially Opposite Party No. 2/ defendant therein, has not
appeared and an ex parte interim injunction was granted restraining Opposite
Party No. 2 and his agents from making interference in day-to-day working
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of Society. Later on Opposite Party No. 2 has appeared, however, the suit is
not decided till date.

10. It is also not in dispute that Opposite Party No. 2/ Complainant has
filed an application under Section 156(3) Cr.P.C. on 17.07.1999, i.e., after
about 15 months alleging allegation of cheating and forgery committed by
applicants during election process. A First Information Report was lodged in
pursuance of direction passed by Magistrate concerned and investigation
was conducted wherein allegations were found to be true against applicants.
Charge sheet was filed on 18.11.2000, however, stage of filing discharge
application came after about 21 years and application was rejected by means
of impugned order dated 09.03.2022 on the ground that at the stage of
discharge, power of Court concerned is only to look whether a prima facie
case is made out or not.

11. From the facts as discussed above, it is evident that issue in civil
proceedings as well as allegations in First Information Report are arising out
of election conducted on 15.03.1998. Opposite Party No. 2 has not
challenged the result of election under the provisions of Act, 1860 despite
being election result was submitted before Registrar of Societies whereas the
applications have approached Civil Court seeking injunction against
Opposite Party No. 2. As held in Sanjay Kumar Rai (supra) while
considering discharge application Court has to consider broad probabilities,
total effect of evidence and documents produced and the basic infirmities
appearing in the case and so on. However, Trial Court has not appreciated
the entire evidence and documents produced alongwith police report that the
allegations of cheating and forgery or that the election was vitiated by
fraudulent practice, has to be considered firstly by the authority concerned
under Act, 1860 and also that there is no proceedings initiated by Opposite
Party No. 2 to annul the election. Therefore, the evidence collected during
police investigation without even verification of alleged disputed signatures,
are not supported by any expert evidence to take atleast a prima faice view
that signatures were forged. The prosecution has not even examined Tarik
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Ahmad, whose presence was allegedly shown in the election proceedings

and even he is not a proposed witness. There is no evidence that Election
Officer (Syed Anwar) was not appointed as Election Officer. All these
infirmities were not considered which were essential to come to the
conclusion that prima facie case was made out against applicants at the time
of considering application for discharge.

12. Learned counsel for applicants has rightly placed reliance on Babu
Venkatesh (supra) that since civil suit was pending between parties and
Opposite Party No. 2/ Complainant/ Defendant, has appeared therein and
that application under Section 156(3) Cr.P.C. was filed after about 15 months
from alleged occurrence, therefore, the same was filed with an ulterior
motive of harassing applicants. (See, Sanjay Kumar Rai (supra) also). The
outcome of above discussion are that:

(I) Opposite Party No. 2/Complainant has not challenged the proceedings
of election of Society before appropriate authority under the provisions of
Act, 1860.

(II) Civil suit was filed by applicants against Opposite Party No. 2 for
permanent prohibitory injunction and vide order dated 06.11.1998 interim
injunction has been granted restraining Opposite Party No. 2 from cuasing
any disturbance in day-to-day functioning of Society.

(III) Opposite Party No. 2/ Complainant has approached Magistrate

concerned by way of filing application under Section 156(3) Cr.P.C. after a
period of about 15 months.

(IV) The allegations made in the application on the basis of which First
Information Report was lodged, were not supported by material collected
during investigation. Even the relevant persons, whose presence were
doubted, were neither examined nor proposed as a witness in the charge
sheet. There is no material on record that Election Officer has not conducted
the election.
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13. In view of above findings it is evident that criminal proceedings

initiated against applicants are manifestly attended with mala fide and
proceedings are maliciously instituted with an ulterior motive for wreaking
vengeance on applicants with a view to spite them due to private and
personal grudge.

14. Now the Court proceed to consider, whether on the basis of above
findings this Court can exercise its inherent power under Section 482 Cr.P.C.
to quash the criminal proceedings.

15. As held in Babu Venkatesh (supra), power to quash criminal

proceedings should be exercised very sparingly with caution and that too in
rarest of rate cases and certain categories of cases are specified in State of
Haryana and others vs. Bhajan Lal and others, 1992 Supp. (1) SCC 335.

16. From the above discussion and on the basis of above referred findings
this Court is of the view that present case fall under category no. 7 as
mentioned in State of Haryana and others vs. Bhajan Lal (supra) and for
reference it is quoted hereinafter:

“(7) Where a 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 a
view to spite him due to private and personal grudge.”
17. In view of above analysis on facts and law, this Court is of the view
that it is a fit case where Court should exercise its inherent power under
Section 482 Cr.P.C.

18. In the result, application is allowed. Impugned order dated 09.03.2022

passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 1226 of
2001 (State vs. Meraj Ali and others), arising out of Case Crime No. 438 of
1999, under Sections 420, 467, 468 IPC, Police Station Civil Lines, District
Aligarh, is hereby set aside.

19. Before parting, the Court feels it appropriate to express its anguish
that unnecessary and baseless criminal proceedings are pending for last
many years, as in the present case the criminal proceedings are pending
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since 1998, i.e., for about 24 years and it has reached only upto the stage of
discharge application. Since this Court has quashed the proceedings but after
24 years, therefore, the suffering of accused persons/ applicants cannot be
compensated. Speedy trial is a right not only of Complainant but accused
persons also. There is no explanation why the proceedings are reached only
upto the stage of discharge application after a lapse of more than two
decades. Supreme Court in Hussainara Khatoon & Ors vs Home Secretary,
State Of Bihar. AIR 1979 SC 1369 has declared that speedy trial is an
integral part of the fundamental right to life and liberty enshrined in Article
21 of the Constitution. Thereafter Supreme Court has issued guidelines for
speedy trial in P. Ramachandra Rao vs. State of Karnataka (2002) 4 SCC
578, however, it appears that due to one or other reasons the directions are
not followed in letter and spirit. Therefore, the Trial Courts are directed to
undertake endeavour that every criminal proceedings shall be concluded
expeditiously, as speedy trial is a right of both Complainant and accused
persons.

Order Date :- 12.09.2022

AK

Digitally signed by AWADESH

KUMAR
Date: 2022.09.12 18:15:05 IST
Reason:
Location: High Court of Judicature at
Allahabad