Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Juvenility Delay And No Benefit To The Complainant Cumulatively Are Sufficient To Quash Prosecution.
JUDGEMENT TITLE : Smt. Vimla Devi Vs. State Of U.P. & Another On 30/05/2012 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 17357 OF 2005.
CORAM : Hon'ble Vinod Prasad,J.


Criminal Miscellaneous Application No.17357 Of 2005

Smt. Vimla Devi ..................................Applicant

State Of U.P. & Another ..............................Opp. Parties

Hon'ble Vinod Prasad, J.

Applicant Smt. Vimla Devi W/o Satish Kumar Singh Has Approached This Court In It's Inherent Jurisdiction U/s 482 Cr.P.C., Through The Instant Application, Praying Hereunder That Proceedings Of Complaint Case No. 489 Of 2004, Sushil Kumar Vs. Vimla Devi, Under Sections 420, 467, 468, 471 IPC, P.S. Badagaon, District Varanasi, Pending Before IInd Judicial Magistrate, District Varanasi, Be Quashed.
She Had Also Prayed For Interim Stay Of Trial Court's Proceeding Pendent Lite This Application.
Notices Were Issued To The Complainant Respondent No.2 Sushil Kumar Singh And To Respondent State, And Both Of Them Have Filed Their Counter Affidavits Contesting Applicant's Case. Applicant, On Her Turn Has Filed Rejoinder Affidavits To Both The Counter Affidavits. A Supplementary Affidavit Was Also Filed By Applicant, To Which A Supplementary Counter And A Supplementary Rejoinder Affidavit Has Also Been Filed.
Stated In An Abridged Form, Background Facts, As Emerged From The Pleadings Made By The Rival Contesting Sides In Their Respective Affidavits Indicate An Application U/s 156(3) Cr.P.C. Was Filed By Respondent No.2 Before The Judicial Magistrate On 12.11.2003, On Which Judicial Magistrate Directed For Registration Of FIR Against The Applicant On 3.12.2003 And Same Day FIR Of Crime No.C-34 Of 2003, Under Sections 420, 467, 468, 471 IPC Was Registered At P.S. Badagaon, District Varanasi, At 11.30 A.m., Vide Annexure No.1. It Was Alleged In The Application/FIR That The Informant Is A Peace Loving And A Simple Citizen And Earned His Family's Livelihood By Meager Means. Applicant Vimla Devi Is A Lecturer In Kamla Balika Inter College, Badagaon Basni, P.S. Badagaon, District Varanasi And Is A Very Cunning And Dexterous Women. By Forging Documents And By Submitting Fake Degree, She Had Obtained Lecturership In Kamla Balika Inter College, Whereas The Fact Of The Matter Was That She Was Not Entitled Even To Teach Intermediate Classes. Regarding The Illegal Appointment And Forged Degrees Submitted By The Applicant, Informant's Mother Smt. Vimla Devi Had Lodged A Complaint With The Education Department And Administrative Authorities Mentioning Therein That The Applicant Does Not Possess Any Valid Degree From Any Degree College And To Obtain Unlawful Gains She Had Submitted All Forged And Fabricated Marks Sheet. Complaint Lodged By Informant's Mother Was Inquired Into By Dr. Malti Rai, District Inspector Of Schools, Who Submitted Her Report On 27.12.2002 Mentioning Thereunder That Applicant's Dated Of Birth Recorded In Her Service Book That Is 1.7.1971 Is Wrong And Illegal Because No Minor Possessed Requisite Qualifications For Being Selected In A Job. D.I.O.S. Had Further Found That All The Degrees Submitted By The Applicant Were Fabricated And Sham Documents. She Had Further Concluded That Prima Facie, It Is Established That The Appointments Of The Applicant Was Wholly Illegal And Against The Service Rules And Exchequers Money Had Been Swindled And Therefore, Against The Applicant Vimla Devi Offences Under Sections 420, 467, 468, 471 Are Prima Facie Disclosed.
By Inking Above Allegations That Respondent No.2 Had Filed Application Under Section 156(3) Cr.P.C. Which Culminated In Registration Of FIR Mentioned Herein Above.
Under Taken Investigation Into The Crime Culminated In Submission Of FR, As The Investigating Officer Concluded That No Offences Is Disclosed Against The Applicant In Absence Of Credible Evidences And The Certificates And Other Degrees Filed By The Applicant Were Genuine And Dispute Seemed To Be Regarding Promotion, Which Was Pending Before The DIOS As Well As In The High Court In Between The Applicant And Smt. Vimal Devi. I.O., Therefore Filed Final Report(FR), Annexure No.2, On 27.8.2004. Investigating Officer, In The FR, Annexure No.2, Requested The Court To Accept It And Close The Case.
On The Submitted FR, Informant Respondent No.2 Was Noticed And He Lodged A Protest Application Against Acceptance Of The F.R., Which Application Was Treated As A Complaint By The Judicial Magistrate, Who Registered Complain Case No. 489 Of 2004, Shushil Kumar Versus Vimla Devi, U/s 420,467,468,471 I.P.C. Following Complaint Case Procedure Judicial Magistrate Recorded Informant's Statement U/s 200 Of The Code Vide Annexure No.3. Informant/ Complainant, U/S 202 Cr.P.C., Examined D.I.O.S. Malti Rai, As P.W.1. Both The Aforesaid Persons Reiterated And Reaffirmed Complainant's Aforementioned Allegations. It Is Mention Here That Statement Of P.W.1,u/s 202 Of The Code Indicated That The Same Was Recorded On The Basis Of Applicant's Service Book.
Learned Judicial Magistrate Finding Prima Facie Case Being Disclosed Summoned The Applicant To Stand Trial For Offences Under Sections 420, 467, 468, 471 IPC, Vide Summoning Order Dated 24.10.2005, Fixing 5.12.2005 For Her Appearance. It Had Also Directed The Complainant To Take Steps For Summoning Of The Applicant By The Same Order.
Challenge In This Application Is To The Proceedings Of Aforementioned Trial By The Applicant.
A Supplementary Affidavit Has Been Filed By The Applicant And In Paragraph 3 To 6, Thereof, It Has Been Averred That At The Time Of The Incident That Is 1.7.1971, The Date On Which Applicant Was Given Initial Appointment, She Was 15 Years,10 Months And 27 Days Of Age According To Her High School Certificate, Wherein Her Date Of Birth Was Recorded As 4.8.55 And Therefore, On The Said Date (1.7.77) Applicant Was A Minor And Consequently She Was Entitled To Get The Benefit Of Juvenile Justice (Care And Protection Of Children Act, 2000). It Was Further Averred That In Pursuance To The Legal Mandate Under Section 27 Of Cr.P.C., Applicant Could Not Have Been Tried At All. Objection, Therefore, Was Raised That IInd Judicial Magistrate, Varanasi, Lacked Inherent Jurisdiction And Was Incompetent To Summon And Hold Applicant's Trial And Consequently Applicant's Summoning Order And All Subsequent Proceedings Pending Against The Applicant Are Illegal And Beyond Legal Competence And Be Quashed.
A Supplementary Counter Affidavit Has Been Filed By Respondent No.2 Wherein, In Paragraph No.5, It Is Averred As Under:-
"That The Contents Of The Paragraph No.4 Of The Supplementary Affidavit Is Correct So Far As It Relate To Averment That Applicant Was Minor Juvenile Is Admitted And Rest Allegation Are Denied The Applied Is Not Entitled To Get Benefit Of The Juvenile Justice Care And Protection Of Children Act, 2000. It Is Further Submitted That Learned Magistrate Was Competent To Try The Case Because The Certificate Of The Applicant From High School To Post Graduate And B.Ed. Were Found Fictitious And She Was Suspended Vide Order Dated 25.7.2011 By Manager Kamla Balika Inter College Basni, Varanasi And Along With The Suspension Order The Copy Of Item No.2 Meeting Dated 18.10.2011 Of Management Committee Was Forwarded To D.I.O.S.-IInd Varanasi For Taking Appropriate Action. The Photocopy Of The Suspension Order Dated 25.7.2011 And Minute Of Meeting Dated 18.10.2011 Is Being Filed Herewith And Marked As Annexure No.C.A.-1 To This Affidavit. It Is Further Submitted That The Applicant Committed Offence Of Forgery And Cheating Till The Procuring Of Forge Certificate Of M.A. And B.Ed."
Along With The Supplementary Counter Affidavit Suspension Order Of The Applicant And Other Communication Have Been Annexed.
In Supplementary Rejoinder Affidavit, Applicant Has Not Added Any New Statement But Has Relied Upon The Averments Made In The Application And Supplementary Affidavit.
In The Counter Affidavit Filed By State Through S.I. Devendra Kant Pandey, P.S. Badagaon, District Varanasi, It Has Been Averred That The Applicant Has Been Summoned After Submission Of Final Report By The Court And Therefore, Accused, Should Pleaded His Defence In A Proper Trial Before The Learned Magistrate.
Informant/complainant Had Filed Two Counter Affidavits. In The Short Counter Affidavit Initially Filed, It Was Alleged That The Applicant Had Committed Forgery In Her Marks Sheet And Degrees And Had Fabricated Those Documents On The Basis Of Which She Had Got An Employment, Which Was Irregular, As The Applicant Was Minor On The Date Of Her Appointment Being Below 16 Years Of Age. Inquiry Report Submitted By DIOS Malti Devi, Dated 29.12.2002, Was Relied Upon And Was Annexed Along With The Counter Affidavit. It Was After Inquiry Report That Application Under Section 156(3) Cr.P.C. Was Filed By The Complainant. In The Detailed Counter Affidavit, Filed By Informant/complainant, The Averments Made In The Application Under Section 156(3) Cr.P.C., Were Reproduced. It Was Further Alleged That The Degree Obtained By The Applicant From I.G.D. Bombay Is Also Sham, Fabricated And Forged Document. Besides Aforesaid Averments, Respondent No.2, Had Snipped Averments Made By The Applicant In Her Application Under Section 482 Cr.P.C.
In Her Rejoinder Affidavit, Applicant Had Denied The Averments Made By Respondent No.2 In The Counter Affidavit.
In The Background Of The Aforesaid Facts, This 482 Cr.P.C. Application Was Heard Finally. I Have Heard Sri Mangla Prasad Rai, Learned Counter For The Applicant And Sri Gajendra Kumar, Learned Counsel For Respondent No.2 And Sri Pantanjali Mishra, Learned AGA For The Respondent State.
It Is Urged By Sri Rai, That None Of The Degrees Submitted By The Applicant Were Found To Be Forged And, Therefore, That Charge Is False And Applicant's Prosecution For It Is Tainted With Malafides And Is A Vindictive Act Engineered By Son Of Rival Teacher Because Of Pending Seniority Dispute Between Them. Respondent No. 2 Sushil Kumar Singh Himself Was Not Involved In The Service Dispute And He Had Filed Application Under Section 156(3) Cr.P.C. With Vendetta To Wreck-vengeance From The Applicant Because Of Seniority Dispute With His Mother. Neither In The Statement Under Section 200 Nor Under Section 202 Cr.P.C. It Has Been Brought On Record That Any Of The Degrees Filed By The Applicant Were Forged. Learned Counsel Further Submitted That It Was A Case Of Irregular Appointment, Which Is A Purely Civil Dispute Covered By Service Matter And No Offence Is Disclosed, Consequently Prosecution Of The Applicant Deserves To Be Quashed. It Was Further Urged That, Admittedly, On The Date On Which Applicant Was Given Appointment I.e. 1.7.1971, Applicant Was Only Fifteen Years, Ten Months And 27 Days Of Age And Consequently Was A Juvenile And Hence Even If Prosecution Allegations Are Correct She Cannot Be Prosecuted For Committing Any Offence In A Regular Trial Before Criminal Court. Elaborating The Submission It Was Argued That The Averments Made In Paragraph 3 Coupled With The Averments Made In Paragraph 5 Of The Said Supplementary Affidavit That The Applicant Is Entitled To The Benefit Of J.J. Act Has Not Been Contested By The Informant-complainant Vide Paragraph 5 Of The Supplementary Counter Affidavit And, Therefore, On Record, It Is Established That On The Date Of The Incident, Applicant Was A Minor. In Such A View, Cognizance By The Judicial Magistrate Of The Offences And The Summoning Order Suffers From Inherent Lack Of Jurisdiction. It Was, Therefore, Submitted That Applicant's Prosecution Is De-horse The Law, As She Could Have Been Tried Only In Accordance With The Provisions Of Juvenile Justice Act And Not Otherwise. Regarding Reports Submitted By DIOS, It Was Submitted That The Same Could Not Have Been Admitted In Evidence At All, As It Is A Report By A Living Person, Who Has Not Found To Be Dead And, Therefore, Can Be Utilized Only For The Purposes Of Contradiction During Trial And For The Purpose Of Summoning, The Said Report Could Not Have Been Looked Into. Primarily On The Aforesaid Submissions, It Was Contended That The Applicant's Prosecution Be Quashed.
On The Contrary, Informant's Counsel And Learned AGA Contended That The Applicant Had Obtained The Service By Forging Various Documents And Degrees And, Therefore, She Was Rightly Summoned. It Is Not A Purely Civil Dispute But The Leveled Allegations Are Well With The Circumscription Of Offence Of Cheating And Fabrication Of Sham Documents. Perusal Of Application U/s 156(3) Of The Code Clearly Spelt Out Criminality And Discloses Offence. Police After Due Investigation, Colluded With Accused Applicant And Submitted A Collusive Final Report, Which Had No Basis At All. Learned Magistrate Has Passed The Summoning Order On The Strength Of An Enquiry Conducted Under Sections 200 And 202 Cr.P.C. And, Therefore, Neither Summoning Order Suffers From Any Error Of Law Nor There Is Any Reason For This Court To Scuttle The Prosecution At It's Very Inception And Nip It Into It's Bud. However, Arguendo, It Was Conceded That, On The Date Of The Incident, Applicant Was A Juvenile, Below 16 Years Of Age. Concludingly It Was Urged That Instant 482 Cr.P.C. Application Be Dismissed.
I Have Considered The Rival Contentions And Have Critically Pondered Over Rival Cases Pleaded Through Various Affidavits, Counter Affidavits And Rejoinder Affidavits. Present 482 Cr.P.C. Application Can Be Decided On A Short Question And, Therefore, I Do Not Propose To Enter Into The Merits Of The Leveled Allegations. Otherwise Also Disputed Questions Of Facts, Alleged And Contradicted, Which Are Contested By The Rival Sides, Cannot Be Decided On The Basis Of Affidavits Filed By The Contesting Sides Without Affording Both Of Them An Opportunity To Prove And Rebut, To Establish Their Versions In A Proper Trial And Hence, I Do Not Deliberate Over The Merits Of The Matter.
However, Admitted Fact Of This Application Is That, On The Date On Which Applicant Had Sought The Job I.e. 1.7.1971, She Was A Juvenile. In Such A View, She Was Governed With The Provisions Of U.P. Children's Act, Which Was In Vogue At That Relevant Point Of Time. Under The Aforesaid Act, Cut Of Age For A Person To Be Within The Fold Of The Act Was Below Sixteen Years. It Was Further Provided Under That Act That If A Person Is A Juvenile As Defined Under The Said Act, He Could Have Been Dealt With Only In Accordance With The Provisions Of That Act And Not Under The Code Or IPC. It Has Been Admitted By The Informant, In Paragraph 5 Of His Supplementary Affidavit, That On The Said Date, Applicant Was Only Fifteen Years Ten Months And Twenty Seven Days Of Age. In Such A View, Case Of The Applicant Was Squarely Governed By The Provisions Of U.P. Children's Act. Under Sections 23 To 27 Of The Said Act, Coupled With Rules 14 And 15 Of The U.P. Children Rules 1962, Applicant Could Not Be Sent To Jail At All. This Aspect Of The Matter Has Been Considered By The Apex Court In Munna Vs. State Of U.P.: AIR 1982 SC 806 Vide Paragraph 5 Thereof Wherein, It Has Been Observed By The Apex Court As Under:-
"5. Since, According To The Report Of The Sessions Judge, 7 Children Were Lodged In The Kanpur Central Jail And Perhaps A Few More Out Of The 84 Undertrial Prisoners Mentioned In Annexure A To The Report Of The Sessions Judge Could Possibly Be Children Within The Meaning Of Uttar Pradesh Children Act, 1951, We Think It Is Necessary To Point Out That Under The Provisions Of That Act, No Child Can, Except In The Rare Cases Provided In The Act, Be Detained In Jail. Chapter IV Of The Act Deals With Youthful Offenders. S. 23 Which Occurs In This Chapter Provides In Sub-sec. (1) That When A Person Apparently Under The Age Of 16 Years Is Arrested For A Non-bailable Offence And Cannot Be Brought Forth Before A Court, The Officer In Charge Of The Police Station To Which Such Person Is Brought May In Any Case And Shall Unless The Offence Is One Of Culpable Homicide Or Is An Offence Punishable With Death Or Transportation Release Him On Bail Unless For Reasons To Be Recorded In Writing The Officer Believes That Such Release Will Bring Him Into Association With Any Reputed Criminal Or Expose Him To Moral Danger Or That His Release Would Defeat The Ends Of Justice. S. 24 Then Proceeds To Enact That When A Person Apparently Under The Age Of 16 Years Having Been Arrested Is Not Released Under S. 23 Or Otherwise, The Officer In Charge Of The Police Station, Shall Cause Him To Be Detained In The Prescribed Manner Until He Can Be. Brought Before A Court. So Also S. 25 Provides That A Court, On Remanding Or Committing For Trial A Child Who Is Not Released On Bail, Shall Order Him To Be Detained In The Prescribed Manner. The Manner In Which A Child Can Be Detained Is Prescribed By The Uttar Pradesh Children Rules, 1962 Made In Exercise Of The Powers Conferred Under Sub-sec. (1) Of S. 88 Of The Uttar Pradesh Children Act, 1951. Rules 14 And 15 Are The Relevant Rules Which Make Provision In This Behalf, R. 14 Provides That Except As Provided In The Act, Where A Child Having Been Arrested Is Not Released On Bail Under S. 23, The Officer In Charge Of The Police Station Shall Cause Him To Be Detained In A Place Of Safety Until He Can Be Brought Before A Court And R. 15 Says That Except As Provided In The Act, Where A Child Is Not Released On Bail, The Court Shall On Remanding Or Committing A Child For Trial Order Him To Be Detained In A Place Of Safety Pending The Disposal Of The Proceeding. What Is A "place Of Safety" Is Defined In S. 2, Sub-sec. (9) Of The Act To 'mean, "any Observation Home Or Any Orphanage, Hospital, Or Any Other Suitable Place Or Institution,, The Occupier Or Manager Of Which Is Willing Temporarily To Receive A Child, Or Where Such Observation Home, Orphanage, Hospital Or Other Suitable Place Of Institution Is Not Available In The Case Of A Male Child Only, A Police Station In Which Arrangements Are Available Or Can Be Made For The Safe Keeping Of A Child Separately From Adult Offenders. " It Is Therefore Clear That When A Child Is Arrested For An Offence And Is Not Released On Bail, He Cannot Be Sent To Jail But He Must Be Detained In A Place Of Safety As Defined In S. 2, Sub-sec. (9) Of The Act. The Inhibition Against Sending A Child To Jail Does Not Depend Upon Any Proof That He Is A Child Under The Age Of 16 Years But As Soon As It Appears That A Person Arrested Is Apparently Under The Age Of 16 Years This Inhibition Is Attracted. The Reason For This Inhibition Lies In The Court Solicitude Which The Law Entertains For Juveniles Below The Age Of 16 Years. The Law Is Very Much Concerned To See That Juveniles Do Not Come Into Contact With Hardened Criminals And Their Chances Of Reformation Are Not Blighted By Contact With Criminal Offenders. The Law Throws A Cloak Of Protection Round Juveniles And Seeks To Isolate Them From Criminal Offenders, Because The Emphasis Placed By The Law Is Not On Incarceration But On Reformation. How Anxious Is The Law To Protect Young Children From Contamination With Hardened Criminals Is Also Apparent From S. 27 Of The Act Which Provides, Subject Only To A Few Limited And Exceptional Cases Referred To In The Proviso, That Notwithstanding Anything Contained To The Contrary, No Court Can Sentence A Child To Death Or Transportation Or Imprisonment For Any Term Or Commit Him To Prison In Default Of Payment Of Fine. It Would Thus Be Seen That Even Where A Child Is Convicted Of An Offence, He Is Not To Be Sent To A Prison But He May Be Committed To An Approved School Under S. 29 Or Either Discharged Or Committed To Suitable Custody Under S. 30. Even Where A Child Is Found To Have Committed An Offence Of So Serious A Nature That The Court Is Of Opinion That No Punishment Which Under The Provision Of The Act It Is Authorised To Inflict Is Sufficient. S. 32 Provides That The Offender Shall Not Be Sent To Jail But Shall Be Kept In Safe Custody In Such Place Or Manner As It Thinks Fit And Shall Report The Case For The Orders Of The State Government. S. 33 Sets Out Various Methods Of Dealing With Children Charged With Offences. But In No Case Except The Exceptional Ones Mentioned In The Act, A Child Can Be Sent To Jail. It Is Therefore Very Surprising That The Seven Children Whose Names Are Mentioned In Annexure B To The Report Of The Sessions Judge Were Sent By The Concerned Magistrate To Jail Instead Of Being Sent To Children's Home Which We Believe Was A Place Of Safety In Kanpur Within The Meaning Of S: 2 Sub-s. (9) Of The Act. We Would Strongly Impress Upon The Magistrates In The State Of Uttar Pradesh - And What We Say Here Must Apply Mutatis Mutandis To The Magistrates In The Other Parts Of The Country Where The Children Acts Are In Force, That They Must Be Extremely Careful To See That No Person Apparently Under The Age Of 16 Years Is Sent To Jail But He Must Be Detained In A Children's Home Or Other Place Of Safety. It Is Absolutely Essential In Order To Implement The Provisions Of The Uttar Pradesh Children Act, 1951 That Children's Home Or Other Suitable Places Of Safety Are Set Up By The Government For The Purpose Of Providing A Place, Of Detention For Children Under The Age Of 16 Years. No Words We Can Use Would Be Strong Enough To Convey Our Feelings In This Respect. A Nation Which Is Not Concerned With The Welfare Of Its Children Cannot Look Forward To A Bright Future."
Otherwise Also, The Magistrate Without Scanning The Material Placed Before Him And Without Vetting Facts And Circumstances Of The Case, Has Summoned The Applicant Without Any Application Of Mind. The Impugned Applicant's Summoning, Therefore Suffers From The Vice Of Non-application Of Mind And Ex Facie Error Of Law And Hence Is Indefensible And Cannot Be Countenanced. Applicant Is Litigating Regarding His Service Matter In This Court In Writ Jurisdiction. It Is On The Civil Side That Her Case Can Be Adjudged, But So Far As Offence Is Concerned, What Can Be Opined Unambiguously Is That She Cannot Be Prosecuted In A Regular Court Of Criminal Jurisdiction Nor Can Be Sent To Jail. Allegations Against Her Stated In Simple Parlance Were That She Being A Juvenile Had Obtained Service For Herself On The Basis Of Some Documents, Which Were, Though Allegated To Be Forged , Were Not In-fact So.
Above Discussion Leads Me To Conclude That, Since Prosecution Of The Applicant Cannot Be Permitted To Go On, In View Of Provisions Of U.P. Children's Act, And Also Since Her Summoning Order Was Passed Without Any Application Of Mind, Contrary To The Facts And Circumstances Of The Case, Illegally And Without Jurisdiction, Hence Such A Prosecution Cannot Be Permitted To Continue.
There Is Yet Another Important Aspect Of The Matter, Which Cannot Be Lost Sight Of. Incident In The Present Case Is Alleged To Have Occurred In 1977 When Initial Appointment To The Applicant Was Given. 156(3) Cr.P.C. Application Against The Applicant Was Filed Not By The Victim Or Aggrieved Person Namely Smt. Vimla Devi Wife Of Jagdish Singh, But By Her Son. In Annexure No. 2, The Final Report, I.O. Had Mentioned That From The Conducted Investigation, Certificate And Other Degrees Of The Applicant Smt. Vimla Devi Were Found To Be Genuine And Emerged Dispute Was Regarding Lecturer-ship Seniority. Smt. Vimla Devi, Herself Did Not Made Any Complaint Against The Applicant For Committing Any Offence Nor She Entered Into The Witness Box To Make Statements Supporting Her Son's Allegations. During Enquiry Conducted By The Magistrate, Only Complainant-respondent No. 2 And DIOS Malti Rai Were Examined. Application Under Section 156(3) Cr.P.C. Was Filed After An Inordinate Unexplained Delay Of Thirty Three Years. In Such A View, The Only Motive Which Can Be Fathomed Out Is That Respondent No. 2 Sushil Kumar Singh, Championing The Cause Of His Mother Smt. Vimla Devi, Has Filed A Malicious Prosecution Against The Applicant After A Gap Of Three Decades. It Is Important To Note At This Juncture That In The Counter Affidavit, Respondent-complainant Had Not Disputed At All That The Incident In The Present Case And Initial Appointment To The Applicant Was Given In 1971. Reports Submitted By DIOS Against The Appointment Of The Applicant Is Also Of The Year 2002 And Perusal Of It Also Indicates That The Incident Had Occurred In 1971-72. In Such A View, To Allow Such A Prosecution To Go On Will Be Wholly Unjustified Against The Interest Of Justice.
Further Since Complainant-respondent No. 2 Is Not Going To Gain Anything By Launching A Malicious Prosecution After Three Decades, The Applicant Should Not Be Permitted To Be Harassed And To Undergo The Rigmarole Of Criminal Trial After Such A Long Gap. In My Aforesaid Opinion, I Am Fortified By The Apex Court Decision In Parminder Kaur Vs. State Of U.P.: 2010 SC 840 Wherein, It Has Been Held By The Apex Court As Under:-
"13. We Find That The Huge Counter-affidavit Of About 346 Pages Is Of No Use As It Merely Relates To The Pending Litigation Between The Parties. However, One Thing Is Very Certain Therefrom That The Appellant On The One Hand And The Respondent No. 2 On The Other Hand Are Bitterly Fighting Civil Litigations Which Are Pending Before The Rampur Courts. These Litigations Started From The Year 2002 Firstly In Revenue Courts And Then With The Filing Of Three Civil Suits About Which We Have Already Mentioned Above. The Concerned FIR Appears To Have Been Filed On 27.2.2004, I.e., When The Civil Litigations, I.e., CS No. 266 Of 2002, CS 267 Of 2002 And CS 268 Of 2002 Were Pending. The Very Fact That The Criminal Proceedings Were Initiated By The Respondent No. 2 Who Was None Else But The Real Brother-in-law (husband's Real Younger Brother) Against His Sister-in-law Whom He Described As An "unrelated Person", The Appellant Herein, Who Is About 75 Years Of Age Speaks Volumes Insofar As Propriety Of Such Criminal Prosecutions Is Concerned. It Is Absolutely Clear From The Manner In Which The Litigation Is Being Fought That It Is Nothing But To Wreak Vengeance That The Criminal Prosecution Has Been Started. We Particularly Find The Total Absence Of Bona Fides On The Part Of The Respondent No. 2 To File The First Information Report Which We Have Quoted Above."
On The Question Of Unexplained Delay And That Being The Reason Of Quashing Of FIR I Am Fortified By Apex Court Opinion In Kishan Singh (D) Through L. Rs. V. Gurpal Singh And Ors.:AIR 2010 SC 3624, Wherein It Has Been Held As Under:-
"..............The FIR Has Been Filed Only On 23.07.2002 I.e. After Filing The RFA No. 2488/2002 Before The High Court On 15.07.2002. Therefore, There Is An Inordinate Delay On The Part Of The Appellants' Father In Filing The FIR And There Is No Explanation Whatsoever For The Same.
21. Prompt And Early Reporting Of The Occurrence By The Informant With All Its Vivid Details Gives An Assurance Regarding Truth Of Its Version. In Case, There Is Some Delay In Filing The FIR, The Complainant Must Give Explanation For The Same. Undoubtedly, Delay In Lodging The FIR Does Not Make The Complainant's Case Improbable When Such Delay Is Properly Explained. However, Deliberate Delay In Lodging The Complaint Is Always Fatal. [vide : Sahib Singh V. State Of Haryana, AIR 1997 SC 3247] : (1997 AIR SCW 3306).
22. In Cases Where There Is A Delay In Lodging A FIR, The Court Has To Look For A Plausible Explanation For Such Delay. In Absence Of Such An Explanation, The Delay May Be Fatal. The Reason For Quashing Such Proceedings May Not Be Merely That The Allegations Were An Afterthought Or Had Given A Coloured Version Of Events. In Such Cases The Court Should Carefully Examine The Facts Before It For The Reason That A Frustrated Litigant Who Failed To Succeed Before The Civil Court May Initiate Criminal Proceedings Just To Harass The Other Side With Mala Fide Intentions Or The Ulterior Motive Of Wreaking Vengeance On The Other Party. Chagrined And Frustrated Litigants Should Not Be Permitted To Give Vent To Their Frustrations By Cheaply Invoking The Jurisdiction Of The Criminal Court. The Court Proceedings Ought Not To Be Permitted To Degenerate Into A Weapon Of Harassment And Persecution. In Such A Case, Where An FIR Is Lodged Clearly With A View To Spite The Other Party Because Of A Private And Personal Grudge And To Enmesh The Other Party In Long And Arduous Criminal Proceedings, The Court May Take A View That It Amounts To An Abuse Of The Process Of Law In The Facts And Circumstances Of The Case. (vide : Chandrapal Singh And Ors. V. Maharaj Singh And Anr., AIR 1982 SC 1238; State Of Haryana And Ors. V. Ch. Bhajan Lal And Ors., AIR 1992 SC 604 : (1992 AIR SCW 237); G. Sagar Suri And Anr. V. State Of U.P. And Ors., AIR 2000 SC 754; And Gorige Pentaiah V. State Of A.P. And Ors., (2008) 12 SCC 531) : (AIR 2008 SC (Supp) 634 : 2008 AIR SCW 6901)."
In Another Decision Vakil Prasad Singh Vs. State Of Bihar: 2009 SC 1822, The Apex Court Has Been Pleased To Observe As Under:-
"..........We Have No Hesitation In Holding That At Least For The Period From 7th December, 1990 Till 28th February, 2007 There Is No Explanation Whatsoever For The Delay In Investigation. Even The Direction Issued By The High Court Seems To Have Had No Effect On The Prosecution And They Slept Over The Matter For Almost Seventeen Years. Nothing Could Be Pointed Out By The State, Far From Being Established To Show That The Delay In Investigation Or Trial Was In Any Way Attributable To The Appellant. The Prosecution Has Failed To Show Any Exceptional Circumstance Which Could Possibly Be Taken Into Consideration For Condoning A Callous And Inordinate Delay Of More Than Two Decades In Investigations And The Trial. The Said Delay Cannot, In Any Way, Be Said To Be Arising From Any Default On The Part Of The Appellant. Thus, On Facts In Hand, In Our Opinion, The Stated Delay Clearly Violates The Constitutional Guarantee Of A Speedy Investigation And Trial Under Article 21 Of The Constitution. We Feel That Under These Circumstances, Further Continuance Of Criminal Proceedings, Pending Against The Appellant In The Court Of Special Judge, Muzaffarpur, Is Unwarranted And Despite The Fact That Allegations Against Him Are Quite Serious, They Deserve To Be Quashed."
Concluding The Discussion, I Am Of The Opinion That The Prosecution Of The Applicant Should Not Be Permitted To Go On For Above Sketched Reasons, After Such A Long Gap.
This 482 Cr.P.C. Application Is Allowed. Prosecution Of The Applicant In Criminal Complaint Case No. 489 Of 2004, Sushil Kumar Vs. Vimla Devi, Under Sections 420, 467, 468, 471 I.P.C., P.S. Badagaon, District Varanasi Pending Before IInd Judicial Magistrate, Varanasi Is Hereby Quashed.

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