# Bhavesh Jain v. State of U.P

- **Citation:** (2022) 6 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-02
- **Case number:** Application U/S 482 No. 2235 of 2022
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhavesh-jain-v-state-of-u-p-48666
- **Pages:** 21

## Headnote

Law
-
Code
of
Criminal
Procedure,
1973
-Section
173,
482-
Indian Panel Code, 1860 -Section 120(b),
201, 204, 415, 420, 463, 467, 468, 471,
Information
Technology
Act,
2000
-
Section 66:- Application - for quashing the
Cognizance
of
Suppl.
Charge
sheet/
summoning
order
to
the
extent
of
Applicant (one of accused) - no further or
new evidences were collected by the
investigating officer before placing suppl.
6 All. Bhavesh Jain Vs. State of U.P.
341
Charge-sheet in the Court concern - no
any evidence either oral or documentary
placed before the Trial Court by which
specifically assigned any role of applicant
to
have
committed
any
offence
individually or in connivance with other
accused persons - no 'quid pro quo' has
been established - trial Court materially
erred in summoning the applicant taking
cognizance without application of its
judicial mind - thus impugned summoning
order
as
well
as
entire
subsequent
proceeding to the extent of applicant are
quashed.(Para - 25, 32, 35, 38)

Application (U/s 482) is allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,858 of 61,030. This is a partial read: ask again with offset=39858 for what follows._

340 INDIAN LAW REPORTS ALLAHABAD SERIES
comes under the purview of offence and as
such the same is punishable also.

42. It is also noticeable that there is
deeming
clause
while
providing
the
punishment clause under Section 86A of
the Act, 1948. Having at glance of proviso
of Section 86A in sub-clause (i) it is very
much clear that if any offence is been
committed by the company including every
person incharge of the company shall be
held guilty of the offence and are
attributable of punishment for such act. In
this sub-clause, the word 'deemed to be
guilty' has been mentioned which connotes
the very clear intent of the legislature to
fasten
the
criminal
liability
on
the
functionaries and the company by this
deeming fiction. In such view of the matter
the word 'deemed' must have profound
context in which it is used.

43. In the instant matter, indeed, there
is allegation against the company and until
the company which is juristic entity is
arrayed as accused, such proceeding shall
vitiate.

44. It has been settled in all
jurisdiction across the world by the role
procedure established by law that the
Companies,
Corporate
Houses
and
Corporations are not immuned from
criminal prosecution, on the premises that
they are not possessing the necessary mens
rea for commission of offence. The
doctrine of contribution and imputation
are needed for interpretation, in case the
company or the corporation which guides
business of the company if at all have a
criminal intent would always be imputed to
the company.

45. Considering the aforesaid facts
and rival submission of learned counsel for
the parties as well as settled laws, the order
dated 29th September, 2021 passed by 9th
Additional District and Sessions Judge, Rae
Bareilly in Criminal Revision No.54 of
2019 as well as order dated 19.05.2017
passed by ACJM, Court no.15, Rae
Bareilly in Compliant Case No. 3074 of
2016, under Sections 419, 420 IPC, Police
Station Mill Area, District Rae Bareilly are
hereby set aside.

46. It is made clear that this court has
passed the order only on the issue of nonimpleadment/ arraying the company as
party in the complaint case.
----------
(2022)06ILR A340
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2022

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Application U/S 482 No. 2235 of 2022

Bhavesh Jain ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Satish Chandra Mishra, Neha Rashmi &
Gantavya

Counsel for the Opposite Party:
Santosh Kumar Mishra (A.G.A.)

Criminal
Law
-
Code
of
Criminal
Procedure,
1973
-Section
173,
482-
Indian Panel Code, 1860 -Section 120(b),
201, 204, 415, 420, 463, 467, 468, 471,
Information
Technology
Act,
2000
-
Section 66:- Application - for quashing the
Cognizance
of
Suppl.
Charge
sheet/
summoning
order
to
the
extent
of
Applicant (one of accused) - no further or
new evidences were collected by the
investigating officer before placing suppl.
6 All. Bhavesh Jain Vs. State of U.P.
341
Charge-sheet in the Court concern - no
any evidence either oral or documentary
placed before the Trial Court by which
specifically assigned any role of applicant
to
have
committed
any
offence
individually or in connivance with other
accused persons - no 'quid pro quo' has
been established - trial Court materially
erred in summoning the applicant taking
cognizance without application of its
judicial mind - thus impugned summoning
order
as
well
as
entire
subsequent
proceeding to the extent of applicant are
quashed.(Para - 25, 32, 35, 38)

Application (U/s 482) is allowed. (E-11)

List of Cases cited: -

1. Ravindranatha Bajpe Vs Mangalore Special
Economic Zone Ltd. & ors. (AIR 2021 SC 4587),

2. St. of Karnataka Vs L. Muniswamy & ors. (AIR
1977 SC 1489),

3. Harishchandra Prasad Mani & ors. Vs St. of
Jharkhand & ors. (AIR 2007 SC 1117),

4. Neelu Chopra Vs Bharti (2009 Vol. 13 SCALE
313),

5. Mirza Iqbal Vs St. of U.P. (AIR 2022 SC 69),

6. Rekha Jain Vs St. of Karn. (Criminal Appeal
No. 749/2022 Decided on Dated 10.05.2022) ,

7. Ramveer Upadhyay & ors. Vs St. of U.P. &
ors. (MANU/SC/0524/2022),

8. Satish Kumar Jatav Vs St. of U.P. & ors.
(MANU/SC/0653/2022),

9. M/S Neeharika Infrastructure Pvt. Ltd. Vs St.
of Maharashtra & ors. (AIR online 2021 SC 192),

10. The St. of Haryana Vs Bhajanlal (1992
Suppl. 1 SCC 335),

11. Inder Mohan Goswami Vs St. of Uttarakhand
(2007 Vol. 12 SCC 01),

12. Indian Oil Corporation Vs NEPC India Ltd. &
ors. (2006 Vol. 6 SCC 436),
13. St. of M.P. Vs Awadh Krishna Gupta & ors.
(2004 Vol. 1 SCC 691),

14. G. Sagar Suri & anr. Vs St. of U.P. & ors.
(2000 Vors.other (Criminal Appeal No. 463 of
2022 decided on 22.3.2022).

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The instant application moved
under Section 482 Cr.P.C. is directed
against
the
summoning
order
dated
9.9.2021 issued in Session Case No.752 of
2021 titled "C.B.I. Vs. Md. Azam Khan
etc" under Sections 201, 204, 420, 467,
468, 471, 120-B I.P.C. and Section 66 of
the I.T Act, 2000 and all orders passed in
furtherance whereof qua the applicant,
"Bhavesh Jain" one of the accused charge
sheeted in Case Crime No.2 of 2018 in
Session Case No.752 of 2021 pending
before the Special Court, Anti-Corruption,
C.B.I. (Central), Lucknow.

2. It is stated in the application that
the F.I.R. No.2 of 2018 was filed on
25.4.2018, alleging certain irregularities in
recruitment of candidates to 1300 posts of
the R.G.C.'s, J.E.'s, A.E.'s advertised by the
U.P. Jal Nigam in the year 2016-2017. The
said F.I.R. was filed against (i) Mr. Md.
Azam Khan, the then Chairman, U.P. Jal
Nigam; (ii) Mr. Syed Aafaak Ahmad, the
then O.S.D; (iii) Mr. Prakash Singh, the
then Secretary, Urban Development; (iv)
Mr. P.K. Assudani, the then Managing
Director, U.P. Jal Nigam Ltd; (v) Mr. Anil
Kumar Khare, the then Chief Engineer,
U.P. Jal Nigam; (vi) other officers of the
U.P. Jal Nigam involved in the recruitment
process. The allegation is, that the aforesaid
accused persons conducted the selection
without taking prior approval of the Board
of Jal Nigam or the State Government
causing a loss of Rs.37.5 Lacs to the State
342 INDIAN LAW REPORTS ALLAHABAD SERIES
Exchequer and violate of rules and
regulations of the Jal Nigam including the
U.P. Water Supply and Sewerage Act,
1975.
None
of
the
allegations
are
attributable to the applicant nor he is
alleged to be a beneficiary anyhow.

3. The company titled "Aptech" who
was hired by the U.P. Jal Nigam under
contract to organize and develop the
infrastructure for conducting the Computer
Based Test (C.B.T.) for short listing of the
candidates, is also arraigned as accused in
the F.I.R.

4. The said F.I.R. No.2 of 2018 was
lodged by one Sri Ram Sevak Shukla,
retired, approximately eight years back,
from the post of Executive Engineer, Jal
Nigam, with some ulterior motive on
account of strong political rivalry and
enmity between him and certain officers of
U.P. Jal Nigam, who were at the helm of
affairs when the selections were conducted.
Pursuant to the lodging of the F.I.R. No.2
of 2018, the Special Investigation Team
(S.I.T) was constituted, which investigated
the case for more than one and a half years,
allegedly
and
apparently
under
the
influence and control of the persons on
whose behest the F.I.R. was filed.

5. The applicant who is a mid-level
employee of the Aptech group which was
hired by U.P. Jal Nigam for the limited
purpose of organizing the infrastructure for
conducting the Computer Based Test
(C.B.T) for the recruitment under the
contract executed between U.P. Jal Nigam
and Aptech. Aptech's role was limited to
facilitate
the
qualifying
examination
(C.B.T) and providing the necessary I.T.
infrastructure and software solution for the
same. It had no role in the actual selection
of the candidates. The contracts effected
the purpose of recruitment dated 17.6.2016,
28.10.2016 and 15.12.2016 respectively
and the work order dated 19.5.2016 was
issued theirfor.

6. The present applicant, as a matter
of fact, is a Software Engineer. In the
course of examination in question (C.B.T.),
he was serving as Deputy Manager,
Software Development. His role was
confined to programming, Software and
website development, which are purely
technical in nature. He had no role in
setting the question papers, tabulation of
scores, preparation of merit list, etc.
Moreover, the applicant did not have access
either to the questions papers, or the result
of the examination or marks of the
candidates,
which
were
confidential
documents/information
stored
in
the
password protected files with strict access
control. It is alleged by the applicant and
stands un-rebutted in the counter affidavit
that the applicant was posted at Mumbai
since 2003 and he had never visited the
State of U.P., much less Lucknow, when
the examination was conducted on behalf
of the U.P. Jal Nigam. He had no
interaction with the officials of the U.P. Jal
Nigam or any candidate appearing in the
examination.

7. It is stated in the affidavit filed in
support of the instant application under
Section 482 Cr.P.C. that the applicant was
never served with the notice in the course of
investigation by the S.I.T. and merely on the
telephonic request of the Investigating
Officer made to Aptech, he gave his
statement to the investigating officer on
12.9.2019, copy whereof is made Annexure
No.4 to the affidavit. Thereafter he has never
summoned to participate in the Investigation
or to provide any document or information.
Ultimately, the investigation was concluded
6 All. Bhavesh Jain Vs. State of U.P.
343
sometimes in January, 2020 and the charge
sheet was submitted by the S.I.T. on
24.5.2021 which did not include the name of
the applicant as an accused. The court
concerned took cognizance of the offences
against the charge sheeted accused namely
Md. Azam Khan, Girish Chandra Srivastava
under Sections 201, 204, 420, 467, 468, 471
I.P.C. read with Section 120-B I.P.C. and
Section 13 of the Anti Corruption Act and
against the accused Neeraj Malik, Vishwajeet
Singh, Ajay Kumar Yadav, Santosh Kumar
Rastogi, Roshan Fernandeez and Kuldeep
Singh Negi under Sections 201, 204, 420,
467, 468, 471, 120-B I.P.C. and Section 66 of
the I.T. Act, 2000 on the basis of evidences
collected by the Investigating Officer and
submitted before the court with the charge
sheet. The court which took the cognizance
of the offence over the charge sheet dated
24.5.2021 without conducting any further
investigation or collecting any new material
or evidence, when a supplementary charge
sheet dated 12.8.2021 was illegally filed by
the
Investigating
Officer
arraying
the
applicant as accused No.2, took cognizance
of the offences without evidences against
him. The applicant has objected that in any
event a prima facie evaluation of the material
and documents on record and the facts
emerging therefrom, if taken at their face
value, do not disclose the existence of
ingredients constituting the alleged offence or
even give rise to suspicion against the
applicant and there did not exist sufficient
grounds for proceeding against him. In the
absence of any specific allegations against the
applicant disclosing his active involvement in
the alleged offences, the learned court below
ought to have refused to take cognizance of
the offences against the applicant.

8. The applicant has submitted in the
instant application that the recruitments in
issue were entirely an internal affair of the
Jal Nigam conducted under the aegis of an
internal examination committee which
oversaw the entire recruitment process and
took all the decisions regarding the same.
Under the contracts executed between the
Jal Nigam and Aptech, Aptech's role too
was limited to facilitate the conduct of the
qualifying
examination
(C.B.T.)
and
providing the necessary I.T. infrastructure
or software solutions for the same, and it
had no role in the actual selection of the
candidates. The applicant being employee
of Aptech, had no role, whatsoever, in the
conduct of the examination on behalf of the
U.P. Jal Nigam as a Software Engineer, his
role
was
confined
to
programming
applications,
software
and
website
development, he is a technical professional
and have no role in setting the question
papers, tabulation of scores, preparation of
merit list, etc. Even he did not have access
the question paper or the result of the
examination or marks of the candidates.
The online examination was conducted in
accordance with the instructions of the U.P.
Jal Nigam issued time to time. The
examinations were held on 5.8.2016 to
7.8.2016 (R.G.C.), 6.12.2016 to 7.12.2016
(J.E.) and 16.12.2016 (A.E.). The Jal
Nigam issued completion certificates for
successful completion of the exams which
is also made Annexure No.9 to the
affidavit.

9. It is alleged by the applicant that
the impugned supplementary charge sheet
was filed against him containing vague
allegations which are entirely false and
baseless. In the charge sheet, it is alleged
that under the contract company was
required to publish the answer key upon the
conclusion of the online examinations
which it failed to do. As such, it is alleged
that Aptech breached the contract and
connived with the officers of the U.P. Jal
344 INDIAN LAW REPORTS ALLAHABAD SERIES
Nigam as a consequence whereof the
candidates did not get an opportunity to
submit their objections on the question
paper. Secondly, it been alleged the terms
of the contract were breached by the
Aptech
and
primary
data
of
the
examination was deleted from the cloud
server and valuable evidence was destroyed
under a criminal conspiracy with the Jal
Nigam for unfair gain. It has also been
alleged that the marks of 169 candidates
have been increased as a consequence
whereof ineligible candidates were selected
and eligible candidates were deprived and
being selected. He has further stated that no
specific role in this regard has been
attributed to the applicant and there is not
an iota of evidence linking the applicant
with the allegations. He had no concern
with the conduct of the examination,
publication of answer key, inviting of
objections, etc. There being no specific
material or allegations against him, there is
no reason and justification to proceed
against the applicant. To verify his position
with regard to the allegation of conspiracy
the applicant has further stated in the
affidavit that there is no whisper or any
prior meeting of minds between the
applicant and officers of Jal Nigam and
no "quid pro quo" has been established.
The applicant has never interacted with any
officer
of
Jal
Nigam or
candidates
appearing in the examination either directly
or indirectly. As such, the S.I.T. has
conducted a sham investigation and the
entire impugned proceeding are purely
based on conjectures and surmises, and no
offence under Section 120-B I.P.C. is made
out. The applicant in the affidavit in
support of the application has further states
that in February, 2017 after completion of
the examination the complete set of answer
keys
and
response
sheets
of
the
examinations were handed over by the
Aptech to the M.D., Jal Nigam upon being
so requested in a C.D. ROM together with
cover letters dated 18.3.2017 (R.G.C.),
27.2.2016 (J.E.) and 27.2.2017 (A.E.). The
revised result was handed over to the
Managing Director, Jal Nigam vide letters
dated 8.8.2017, 31.8.2017, 19.8.2017 and
8.8.2017. However, for the reason best
known to it the Jal Nigam never published
the revised result, even with regard to the
allegations that the original/primary result
data of the examination was removed by
the Aptech from the cloud server in
connivance with the officers of the Jal
Nigam. No role of the applicant has been
attributed
in
the
charge
sheet.
The
allegation is neither concerned with the
storage of data nor does he access to
control of the computer system or computer
network where the data of the examination
is stored. Moreover, as a matter of fact,
the original data has not been deleted
and continues to be stored in the
archives of the company in hard disks in
its original format under strict access
control, as mandated by the internal data
retention policy of the company. The S.I.T.
has been informed repeatedly and severally
that original data of the examination is not
deleted and is available through various
letters dated 7.11.2017 and e-mail dated
7.9.2018, 3.3.2020, 5.3.2020, 21.9.2020
and 3.11.2020. Yet for the reasons best
known to it, S.I.T. has never collected the
original data, instead acting with apt
premeditation and planned, it filed a false
charge sheet against the applicant on
12.8.2020 in submission to earlier one
which is made Annexure No.14 and 15 to
the affidavit in support of the application.

10. Counter affidavit on behalf of the
State of U.P. filed in the matter has not
factually any differences with regard to the
contract between the U.P. Jal Nigam and
6 All. Bhavesh Jain Vs. State of U.P.
345
Aptech India Ltd. for conducting C.B.T. for
recruitment of post of R.G.C., J.E., A.E. in
a selection for appointment of 1300
advertised posts. For ready reference, para8 of the counter affidavit is thus reads as
under:-

8& ;g fd mijksDRk p;u izfdz;k esa
v/;{k] fo'ks"k dk;kZf/kdkjh] izcU/k funs'kd ty
fuxe ,oa ty fuxe ds vU; vf/kdkfj;ksa }kjk
fu;ekoyh dk mYya?ku dj euekus rjhds ls
vgZrk@;ksX;rk esa foKkiu ds ckn NsM+&NkM+ dh
x;h rFkk vk'kqfyfid ijh{kk esa fu/kkZfjr inksa ds
lkis{k de ijh{kkFkhZ lQy gksus ij euekus <ax ls
ijh{kk fujLRk dj nh x;hrFkk vU; foKkfir inksa
dh HkrhZ esa esllZ ,iVsd fy0 ds vf/kd`rizfrfuf/k
o ty fuxe ds mRrjnk;h vf/kdkfj;ksa }kjk
vkilh nqjfHk laf/kds ek/;e ls le; ls mRrj
dqath u iznf'kZr dj iz'uksa ds mRrjksa esalgh
fodYi u fu/kkZfjr dj =qfViw.kZ <a+x ls DykmM
loZj ds ek/;eewY;oku lk{; dks foyksfir dj
vfu;fer #i ls ifj.kke ?kksf"kr djik= vH;fFkZ;ksa
dks {kfr igqapkdj vik= vH;fFkZ;ksa dk p;u dj
tYnckth esa fu;qfDRk i= tkjh dj mlh frfFk dks
p;fur vH;fFkZ;ksa dks dk;ZHkkj xzg.k djkdj
euekus <a+x ls fof/k fo#) dk;Z fd;k x;k gSA"

11. In para-9 of the counter affidavit
without specifying any particular evidence
with regard to the offence alleged to have
been committed by the applicant "Bhavesh
Jain", it is alleged that he has committed
the following offences, (i) a conspiracy
between U.P. Jal Nigam and M/S Aptech
Ltd., a collusion is evident from the fact of
breach of contract between them with
regard to the recruitment on all the 1300
posts and not publishing the answer key
just after the completion of the exam and
even then under a criminal conspiracy to
continue with the process of recruitment.
(ii) in breach of conditions of contract
working against the rules for undue gain
under a criminal conspiracy in collusion
with the U.P. Jal Nigam deleted the
primary data from the cloud server and thus
destroyed a valuable evidence. (iii) that for
an undue benefit committed the criminal
conspiracy during the course of recruitment
process. (iv) the present accused applicant
whose name came into light in the course
of investigation is arrayed on the basis
ofevidences collected by the Investigating
Officer under Section 201,204, 420, 467,
468, 47/120-B I.P.C. and Section 66 of the
I.T. Act and a supplementary charge sheet
was submitted on 12.4.2021 against him.
Denying the pleading of the accused
applicant in his affidavit that S.I.T. has
never bothered to access the original data
following
due
course
of
procedure,
therefore, the allegation as to the deletion
of primary data and arraigning the charges
under Section 201, 204, 120- B I.P.C. and
Section 66 of the I.T. Act maliciously has
stated that Aptech company had deleted the
primary data from the cloud server and in
the course of investigation whenever the
company was asked to provide primary
data, the officers and employees of the
company did not make available the same,
therefore, the accused is arraigned with
Section 201, 204, 420, 467, 468 and 120-B
I.P.C. and Section 66 of the I.T. Act prima
facie and further the primary data was
recovered with the help of the Forensic
Science Laboratory.

12. In para 51 and 52 aforesaid the
Aptech company as a whole is charged
with deletion of primary data, not providing
the primary data despite repeated request
by the S.I.T., it is alleged without
specifying with particular and visible role
of the present accused applicant.

13. Annexure No.3 to the counter
affidavit
has
an
importance
for
ascertaining
the
admitted
role
and
responsibility of each and every employee
346 INDIAN LAW REPORTS ALLAHABAD SERIES
of Aptech associates engaged for the
examination in issue. Annexure No.3 is a
document supplied by the Aptech company
on the requisition of S.I.T. For easy
reference table in Annexure No.3 is quoted
as under:-

Role & Responsibilities of Associates
w.r.t. U.P. Jal Nigam Project
S.
No
.
Reso
urce
Nam
e
Desi
gnat
ion
Role
&
Respo
nsibili
ty
Perio
d of
Deplo
yment
Pres
ent
Add
ress
M
obi
le
No
.
1. Neer
aj
Mali
k
Exec
utive
Vice
Presi
dent
Head -
Enterp
rise
Busin
ess
Group
May
2016
to
Nov
2017
Tata
Prim
anti,
Tow
er 7,
Hou
se
No.2
03,
Sect
or72,
Guru
gram
-
1221
01
98
10
81
40
58
2. Vish
waje
et
Sing
h
Vice
-
Presi
dent
(Hea
d
Deli
very
&
Chie
f
Infor
Respo
nsible
for
Opera
tions
and
Delive
ry
of
UP Jal
Niga
m
Projec
Aug
2016
to
Nov
2017
Flat
No.0
2012
ATS
Adv
anta
ge
Indir
apur
am
Gha
ziab
98
10
28
02
64
mati
on
Offi
cer)
t
ad
2010
14
3. Ajay
Yad
av
Seni
or
Gen
eral
Man
ger
(Zon
al
Busi
ness
Hea
d)
Respo
nsible
for
Sales
&
Opera
tions
of UP
Jal
Niga
m
Projec
t
May
2016
to
Nov
2017
3/22
8,
Vira
m
Kha
nd,
Gom
ti
Nag
ar,
Luck
now
2260
10
92
35
50
11
82
4. Sant
osh
Kum
ar
Rast
ogi
Assi
stant
Gen
eral
Man
ager
(Reg
ional
Busi
ness
Hea
d)
Respo
nsible
for
Sales
&
Accou
nt
Mana
gemen
t
for
UP Jal
Niga
m
Projec
t
May
2016
to
Nov
2017
3/74,
Vira
m
Kha
nd,
Gom
ti
Nag
ar,
Luck
now
2260
10
90
44
21
13
33
5. Amit
Saini
Seni
or
Gen
eral
Man
ger -
Tech
nical
Respo
nsible
for
Techn
ical
Delive
ry for
UP Jal
Niga
m
Dec
2016
to
Nov
2017
C205,
Elite
Hom
es,
Indir
a
Coll
ege
Roa
75
06
51
38
85
6 All. Bhavesh Jain Vs. State of U.P.
347
Projec
t
d,
near
Aks
hara
Inter
natio
nal
Scho
ol,
Tath
awa
de,
Pune
-
4110
33
6. Rom
an
Fern
ande
s
Gen
eral
Man
ager
-
Tech
nical
Respo
nsible
for
Techn
ical
Delive
ry for
UP Jal
Niga
m
Projec
t
May
2016
to
Nov
2017
Mar
des,
PostNir
mal,
TalVasa
i,
Dist.
Palg
har,
Pin
4013
04
88
98
84
55
28
7. Bha
vesh
Jain
Man
ager
-
Soft
war
e
Dev
elop
men
t
Respo
nsible
for
Devel
opme
nt
Supp
ort
for
UP
Jal
Niga
m
Proje
May
2016
to
Nov
2016
104
Jant
a
Apa
rtme
nt,
Din
daya
l
Nag
ar,
Vas
ai
Wes
74
00
42
75
37
ct
t.
8. Jiten
dra
Dixit
Seni
or
Exec
utive
-
Soft
ware
Dev
elop
ment
Respo
nsible
for
Appli
cation
Mana
gemen
t and
Candi
date
sched
uling
for UP
Jal
Niga
m
Projec
t
May
2016
to
Nov
2017
Roo
m
No.5
03,
Sai
Pooj
a,
Plot
No.3
6,
Sect
or
34,
Kam
othe
Navi
Mu
mbai
4102
09
95
94
35
38
25/
93
23
88
78
19
9. Jagd
ish
Sahu
Syst
em
Adm
inistr
ator
Respo
nsible
for
Infrast
ructur
e
Suppo
rt for
UP Jal
Niga
m
Projec
t
May
2016
to
Nov
2017
B404,
Sent
osa
Park
,
Ekta
Park
svill
e,
Glob
al
City,
Vira
r
West
,
4013
03
99
20
83
59
67
10. Afta
b
Kha
Dep
uty
Gen
Respo
nsible
for
May
2016
to Feb
Rust
omje
e
98
20
95
348 INDIAN LAW REPORTS ALLAHABAD SERIES
n
eral
Man
ager
-
Proj
ect
&
Oper
ation
s
Projec
t
Mana
gemen
t
(coord
inatio
n
betwe
en
differe
nt
depart
ments
within
Aptec
h
&
Custo
mer)
&
Zonal
Opera
tions
manag
ement
for
RGC
for UP
Jal
Niga
m
Projec
t
2017
Athe
na,
D201
Maji
wad
a
Than
e
(W)
4006
01
97
11
11. Hem
ant
Kan
dpal
Assi
stant
Man
ager
-
Proj
ects
Respo
nsible
for
Projec
t
Mana
gemen
t
for
AE &
JE
(coord
June
2016
to
Nov
2017
67Raip
ur,
IIM
road
off
Sitap
ur
road,
MV
M
70
54
19
97
77
inatio
n
betwe
en
differe
nt
depart
ments
within
Aptec
h
&
Custo
mer)
for UP
Jal
Niga
m
Projec
t
Scho
ol,
Luck
now
-
2260
20
12. Pita
m
Sing
h
Hea
d
-
Cont
ent
(Adv
isor)
Respo
nsible
for
Conte
nt
Devel
opme
nt for
UP Jal
Niga
m
Projec
t
July
2016
to Mar
2017
3/36
Sect
or -
5
Raji
nder
Nag
ar
Sahi
baba
d
Gha
ziab
ad -
2010
05
99
68
27
52
20/
95
40
14
25
22
13. Ratn
arup
a
Ray
Gen
eral
Man
ager
-
Cont
ent
Auth
orin
Respo
nsible
for
Conte
nt
Autho
ring
for UP
Jal
May
2016
to Mar
2017
402
A
Poon
am
Dars
han,
Poon
am
Nag
74
00
42
75
24
6 All. Bhavesh Jain Vs. State of U.P.
349
g
Niga
m
Projec
t
ar,
And
heri
(E)
Mu
mbai
-
4000
93
14. Pala
k
Mah
arish
i
Man
ager
-
Cont
ent
Dev
elop
ment
Respo
nsible
for
Conte
nt
Devel
opme
nt for
UP Jal
Niga
m
Projec
t
May
2016
till
Nov
2017
B501,
Him
alay
a
Apar
tmen
t,
Sect
or -
5,
Vasu
ndhr
a,
Gha
ziab
ad,
UP
2010
12
99
90
74
34
50
15. Dhar
men
dra
Sing
h
Man
ager
-
Zona
l
Oper
ation
s
Respo
nsible
for
Opera
tions
Mana
gemen
t
(JE
& AE)
for UP
Jal
Niga
m
Projec
t
Sep
2016
to
Nov
2017
136
Nara
in
Nag
ar,
Ravi
ndra
palli,
Luck
now,
U.P.,
2260
16
89
60
00
33
31
16. Kuld
eep
Negi
Appr
oved
Ven
dor -
Resu
lt
Proc
essin
g
Respo
nsible
for
Merit
List
Prepar
ation
for
RGC
for UP
Jal
Niga
m
Projec
t
Jun
2016
to
Nov
2016
C/O
Sarv
atra
IT
Serv
ices
Pvt.
Ltd.
Hea
d
Offi
cer:
SCO
86,
Seco
nd
Floo
r,
Sect
or
22
Gurg
aon1220
16
01
2442
39
25
0
17. Ash
ok
Upre
ti
Appr
oved
Ven
dor
Resu
lt
Proc
essin
g
Respo
nsible
for
Merit
List
Prepar
ation
for
AE &
JE for
UP Jal
Niga
m
Projec
t
Dec
2016
to
June
2017
C/O
SAR
THA
K
DAT
A
SOL
UTI
ONS
PVT
LTD
G247
FIR
ST
FLO
OR,
GAZ
IPU
02
2
65
28
68
08
350 INDIAN LAW REPORTS ALLAHABAD SERIES
R,
DEL
HI
1100
96

14. It is argued by learned Senior
designated on behalf of the accused
applicant "Bhavesh Jain" in the instant
application under Section 482 Cr.P.C. that
the complaint itself has no allegation
individually or jointly with the other coaccused against the role of the applicant in
making or deleting the entries with regard
to marks obtained by the candidates in
C.B.T. The role of the accused is very
much specified in the Annexure No.3
annexed with the counter affidavit by the
State opposite party which is detailed
against the name of "Bhavesh Jain,
Manager-
Software
Development,
responsible for development support for
U.P. Jal Nigam Project from May 2016 to
November 2016" at Sr. No.7.

15. On telephonic request the
applicant presented himself before the
S.I.T. and his statement was recorded by
the Investigating Officer where he stated
about the work assigned to him which is
made Annexure No.4, the works assigned
to him was (i) production and development
of website (ii) planning and explaining the
work on the website to the colleagues in
accordance with the approved plan conduct
of the work, etc. On the query of
Investigating Officer of the S.I.T., his reply
was recorded on 12.9.2019 which may be
seen at Annexure No.4 of the affidavit filed
in support of the application that the
development work of the website with
regard to the online form, admit card and
call letter in the recruitment process was
done by him. It is also work that after the
development of the website the prescribed
fields were to be filled up by the employee
arrayed at Sr. No.8 in Annexure No.3 to the
counter affidavit namely Jitendra Dixit,
Kuldeep Negi at Sr. No.16 and Ashok
Upreti at Sr. No.17 as they were given
responsibility for application management
and
candidate
scheduling,
merit
list
preparation, etc. There is no iota of
evidence against those collected by the
Investigating Officer which prima facie
show the role or capacity to access the
primary data filled in the website even
evidence of any conspiracy is also not
given. As such, the learned court of
Magistrate did not apply his mind in taking
cognizance over the charge sheet and
issuance of summon for trial. He relied on
the case laws propounded by the Apex
Court on the argument in support of his
argument that an employee of a company
cannot be made accused without any
specific
allegation
or
specific
role
attributed
to
them
relying
on
Ravindranatha Bajpe
Vs.
Mangalore
Special Economic Zone Ltd. and Ors.1,
State of Karnataka Vs. L. Muniswamy and
Ors.2 in support of the argument that where
no material on record is available to show
prima facie the complicity of the accused or
to suspect him for committing the offence.
In this regard, Harishchandra Prasad
Mani and Ors. Vs. State of Jharkhand and
Ors.3, Neelu Chopra Vs. Bharti4 and
Mirza Iqbal Vs. State of Uttar Pradesh5
placed before the court in support of his
argument that particulars of offences
committed by each and every accused and
role of accused must be demonstrated in the
charge sheet and where only vague and
bald allegations are made no specific
allegations against the accused and there is
no specific role against the accused, the
candidates of relevant offences cannot be
taken by the Magistrate. Lastly, learned
counsel
submitted
that
a
criminal
6 All. Bhavesh Jain Vs. State of U.P.
351
proceeding cannot be continued if there is
no specific allegations against the accused,
he relied on a judgment of Rekha Jain Vs.
State of Karnataka dated 10.5.2022 passed
in Criminal Appeal No.749 of 2022 by the
Apex Court.

16. On the other hand, learned A.G.A.
Sri Santosh Kumar Mishra, Advocate argued
that police has the statutory right and duty to
investigate into a cognizable offence on
complaint having been made the result of
investigation done by the S.I.T. brought into
light the name of the accused as employee of
the company engaged by the Aptech
company as Software Developer to fulfill its
obligation under the contract with the U.P. Jal
Nigam to conduct C.B.T. for the recruitment
of R.G.C., J.E. and A.E on 1300 posts
advertised by the U.P. Jal Nigam. The
allegations
was
that
illegalities
and
irregularities were committed in connivance
with the officers of U.P. Jal Nigam by the
Aptech company under a conspiracy of
which the present accused applicant was a
participant, therefore, prima facie case against
the accused was made out and the charge
sheet was submitted against him by the S.I.T.
whereupon cognizance was taken by the
Magistrate and summons were issued.

17. Learned A.G.A. relying on the
case law propounded by the Apex Court
dated 20.4.2022 in Ramveer Upadhyay and
Ors. Vs. State of U.P. and Ors.6 submitted
that the criminal proceedings cannot be
nipped
in
the
bud
by
exercise
of
jurisdiction under Section 482 of the
Cr.P.C. only because the complaint has
been lodged by a political rival, there
would have been possibility of a false
complaint at the behest of a political
opponent but the same would not be
justified interference under Section 482 of
the Code of Criminal Procedure, 1973.

18. Learned A.G.A. has also relied on
the judgments of Apex Court in Satish
Kumar Jatav Vs. State of U.P. and Ors.7
decided on 17.5.2022 and M/S Neeharika
Infrastrucure Pvt. Ltd. Vs. State of
Maharashtra and Ors.8. He emphasized
the argument that while examining the
F.I.R./complaint the court cannot embark
upon an enquiry as to the reliability or
genuineness or otherwise of the allegations
made therein. Criminal proceeding ought
not to be scuttled at the initial. Quashing of
complaint/FIR should be an exception
rather than an ordinary rule.

19. Heard learned counsels, perused
the materials available on record, gone
through the cases cited in support of their
contentions.

20. In The State of Haryana Vs.
Bhajanlal9 the scope of High Court power
under Section 482 Cr.P.C. and Article 226
of the Constitution of India was widely
considered to quash the FIR and refer to
several judicial precedents and held that
High Court should not embark upon an
enquiry into the merits and demerits of the
allegations and quash the proceeding
without allowing the investigating agency
to complete its task. At the same time, the
Apex Court identified the following cases
in which FIR/complaint can be quashed.
Para-102 of the aforesaid case is quoted
below:-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
352 INDIAN LAW REPORTS ALLAHABAD SERIES
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made
in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused.

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

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

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

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

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

(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."

21. In Inder Mohan Goswami Vs.
State of Uttarakhand10 Apex court in
para-27 has observed as under:-

27. The powers possessed by the
High Court under Section 482 of the Code
are very wide and the very plenitude of the
power requires great caution in its
exercise. The Court must be careful to see
that its decision in exercise of this power is
based on sound principles. The inherent
power should not be exercised to stifle a
legitimate prosecution. The High Court
should normally refrain from giving a
prima facie decision in a case where all the
facts are incomplete and hazy, more so,
when the evidence has not been collected
and produced before the Court and the
issues involved, whether factual or legal,
are of such magnitude that they cannot be
seen in their true perspective without
sufficient material. Of course, no hard-and-
6 All. Bhavesh Jain Vs. State of U.P.
353
fast rule can be laid down in regard to
cases in which the High Court will exercise
its extraordinary jurisdiction of quashing
the proceedings at any stage.

22. In Indian Oil Corporation Vs.
NEPC India Ltd. and Ors.11 formulated
guiding principles for exercise of power
under Section 482 Cr.P.C. in following
terms:-

"12. ... (i) A complaint can be
quashed where the allegations made in the
complaint, even if they are taken at their
face value and accepted in their entirety,
do not prima facie constitute any offence
or make out the case alleged against the
accused. For this purpose, the complaint
has to be examined as a whole, but
without examining the merits of the
allegations. Neither a detailed inquiry nor
a meticulous analysis of the material nor
an
assessment
of
the
reliability
or
genuineness of the allegations in the
complaint, is warranted while examining
prayer for quashing of a complaint.

(ii) A complaint may also be
quashed where it is a clear abuse of the
process of the court, as when the criminal
proceeding is found to have been initiated
with
malafides/malice
for
wreaking
vengeance or to cause harm, or where the
allegations are absurd and inherently
improbable.

(iii) The power to quash shall not,
however, be used to stifle or scuttle a
legitimate prosecution. The power should
be used sparingly and with abundant
caution.

(iv) The complaint is not required
to verbatim reproduce the legal ingredients
of the offence alleged. If the necessary
factual foundation is laid in the complaint,
merely on the ground that a few ingredients
have not been stated in detail, the
proceedings
should
not
be
quashed.
Quashing of the complaint is warranted
only where the complaint is so bereft of
even the basic facts which are absolutely
necessary for making out the offence.

(v) .."

23. In the State of M.P. Vs. Awadh
Krishna Gupta and Ors.12, in para-11 it is
held:-

"11. The powers possessed by the
High Court under Section 482 of the Code
are very wide and the very plenitude of the
power requires great caution in its
exercise. Court must be careful to see that
its decision in exercise of this power is
based on sound principles. The inherent
power should not be exercised to stifle a
legitimate prosecution. High Court being
the highest Court of a State should
normally refrain from giving a prima facie
decision in a case where the entire facts
are incomplete and hazy, more so when the
evidence has not been collected and
produced before the Court and the issues
involved, whether factual or legal, are of
magnitude and cannot be seen in their true
perspective without sufficient material. Of
course, no hard and fast rule can be laid
down in regard to cases in which the High
Court will exercise its extraordinary
jurisdiction of quashing the proceeding at
any stage.

In
proceeding
instituted
on
complaint, exercise of the inherent powers
to quash the proceedings is called for only
in a case where the complaint does not
disclose any offence or is frivolous,
vexatious or oppressive. If the allegations
354 INDIAN LAW REPORTS ALLAHABAD SERIES
set out in the complaint do not constitute
the offence of which cognizance has been
taken by the Magistrate, it is open to the
High Court to quash the same in exercise
of the inherent powers under Section 482 of
the Code.

24. Further in G. Sagar Suri & Anr.
Vs. State of U.P. & Ors.13 it is observed
that it is the duty and obligation of the
criminal court to exercise a great deal of
caution in issuing the process, particularly
when matters are essentially of civil nature.

25. At the very outset the present
accused applicant in the complaint he is
alleged individually or jointly with the
other co-accused responsible for the
offence punishable under Sections 201,
204, 420, 467, 468, 471, 120-B I.P.C. and
Section 66 of the I.T Act, 2000, therefore,
it is also imperative to examine the
ingredients of the said offences and
whether the allegations made in the
complaint, read on their face, attract those
offences under the penal code.