# Shankar Tewari v. Principal and others

- **Citation:** (2000) 2 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Bench:** Alok Chakrabarti
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shankar-tewari-v-principal-and-others-39598
- **Pages:** 5

## Text

2All] Principal, Rastriya Inter College & another V. D.I.O.S. & others
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By the Court

This Special Appeal has been filed against
the impugned judgment of the learned single
Judge dated 10.9.99. We have carefully
perused the said judgment and find no
infirmity in the same.

The respondent no.3 in this appeal was a
Daftari (peon) in the Rastriya Inter College,
Bali Nichlaul, district Mahrajganj and he was
dismissed by the Principal by order dated
8.7.99 but the said order was disapproved by
the District Inspector of Schools by his order
dated 23/28.8.99. Against that order of the
District Inspector of Schools the appellant
filed a writ petition in this Court which was
dismissed by the impugned judgment of the
learned single Judge.
The short question in this case is whether
prior approval/permission from the District
Inspector of Schools is necessary before
dismissing a Class-IV employee.

A learned single Judge of this Court
(Hon'ble
Alok
Chakrabarti,J.)
in
Daya
Shankar Tewari vs. Principal and others
1998(2) UPLBEC 1101 has held that such
prior approval is necessary. The learned single
Judge has gone into the matter in great detail
and has examined the relevant provisions in
the U.P. Intermediate Education Act as well
as Regulation 31 and 100 of the Regulations
made under in the aforesaid Act.

We are in respectful agreement with the
aforesaid decision of the learned single Judge
in Daya Shankar Tewari's case. The decision
of the full Bench of this Court in Magadh
Ram Yadav vs. Dy. Director of Education and
others 1979 ALJ 1351 which is relied upon by
the learned counsel for the appellant is in our
opinion not applicable as it has not considered
Regulation
31
and
100
of
the
U.P.
Intermediate Education Regulation.

In view of the above there is no merit in
this appeal and it is accordingly dismissed.

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By the Court

1. Dr. Pradumn Singh and Indra Deo
Pandit, who are respectively Principal and
Assistant Accountant in Budha Post Graduate
College, Kushinagar, District Kushinagar
have
been
arraigned
of
the
offences
punishable
under
Sections
408/419/420/467/468/471 I.P.C. pursuant to
the F.I.R. laid by Chanan Singh Dhillon -
Secretary of the Committee of Management
of the said college, at P.S. Kasiya, District
Kushinagar giving rise to Crime No. 345 of
1999.

2. By means of Criminals Misc. Writ No.
3897 of 1999, Dr. Pradumn Singh Principal of
the College, who has since been suspended
pending departmental enquiry, prayed that the
impugned F.I.R. be quashed and a direction
be issued to the respondents not to arrest him
in the aforesaid crime. On 30.7.1999, this
court passed an interim order directing that till
the next date of listing or until the submission
of the charge sheet, whichever is earlier, the
arrest of Dr. Pradumn singh in the aforesaid
crime shall remain stayed. The interim order
was
extended
till
further
orders
on
11.11.1999. Counter and rejoinder affidavits
have been exchanged.

3. Subsequently, Criminal Misc. Writ No.
7730 of 1999 came to be filed on behalf of
Indra Deo Pandit, who has prayed for the
relief's as have been claimed by Dr. Pradumn
Singh. When the writ petition was taken up
for hearing on 5.1.2000, learned counsel for
the parties made a statement that the counter
affidavits filed in Civil Misc. Writ No. 3897
of 1999 filed by Dr. Pradumn Singh may also
be read in the subsequent petition and that
both the petition be disposed of on merits.
Accordingly we proceed to decide these two
petitions on merits.

4. Heard Sri Satish Chandra Misra, learned
counsel for petitioners, Sri R.K. Ojha
appearing on behalf of first informant-Chanan
Singh Dhillon and Sri Mahendra Pratap,
Learned A.G.A., for the respondents, at
considerable length.

5.
Dr.
Pradumn
Singh,
petitioner
eulogizing himself as a praiseworthy Principal
of the college has levelled certain allegations
against Dilip Singh Majithia, President, and
Chanan Singh Dhillon, Secretary of the
Committee of Management of the College.
According to him, they always wanted to
harass him and demanded money from the
college funds for their personal use and since
the petitioner did not oblige them, they felt
incensed and annoyed. In support of the
allegations, Dr. Pradumn Singh has relied
upon a number of documents annexed with
the petition. It is further pleaded that he was
falsely implicated in the case of murder of
J.N. Singh, a Lecturer of the college, at the
behest and in collusion of some office bearers
of the Committee of Management, and since
the investigations of the murder case has since
been transferred to C.B.C.I.D., a false and
2All] Dr. Pradumn Singh V. State of U.P. & others
3
fabricated report, with a view to humiliate
and vex the petitioner has been lodged against
him. It is alleged that according to the
impugned F.I.R. itself, it is clear that the
entire money was paid through vouchers,
which were approved by the office bearers of
the committee of management itself.

6. Sri Indra Deo Pandit, in his turn, has
alleged that all the allegations in the F.I.R. are
against the Principal of the college and that he
has worked under his subordination as
Assistant Accountant and, was bound to obey
the directions of the Principal. It is further
alleged that he is not responsible for any
embezzlement as he himself had no power to
work
independently
and
as
such
the
allegations are of no consequence against him.
He has also made certain allegations of
malafide against the management and has
assigned the reasons for his false implication
as a contempt petition was filed by him before
this court in which certain directions were
issued.

7. Sri Satish Chandra Misra, learned
counsel for the petitioners urged that the
allegations contained in the F.I.R. are nothing
but a conglomeration of calumny and
falsehood and, therefore, investigation on the
F.I.R. against the petitioners would be unwise.
It was also urged by him that the F.I.R. is the
product of the mala fide or lack of bona fide
on the part of the Secretary of the Committee
of
management
who
for
extraneous
considerations was impelled to lodge the
report. Both the submissions have been
repelled by the learned counsel for the first
informant as well as the State.

8. To begin with, it may be mentioned that
both the petitioners are involved in Case
Crime No. 345 of 1999 under Sections
408/419/420/467/468 and 471 I.P.C. P.S.
Kasiya, district Kushinagar. A bare reading of
the F.I.R. would indicate that prima facie, a
cognizable offence is made out against both
the accused persons who were directly
concerned with the handling of the accounts
of the institution. Learned counsel for the
petitioners has also not argued before this
court that from the averments made in the
F.I.R. a cognizable offence is not disclosed.
The only submission on behalf of the
petitioners is that the allegations contained in
the F.I.R. are false and, in any case, they are
the product of mala fide. Counter affidavits
brought on the record are indicative of the fact
that after the receipt of the audit report, it was
found that the petitioners have squandered
substantial money of the college, in question.

9. The gravamen of the charge against the
petitioners, therefore, is that in their capacity
as Principal and Assistant Accountant, they
have embezzled huge amount by withdrawing
the same on the basis of forged and fictitious
vouchers. It is well embedded and settled
proposition of law that the Court has to be
cautious and circumspect while exercising the
power of quashing a criminal proceeding.
Such power has to be exercised very sparingly
and that too in the rarest of rare cases. The
apex court has taken the consistent view that
the Court should not, except in extraordinary
circumstances, exercise its jurisdiction to
quash the prosecution proceedings after they
have been launched. In the case of Rupam
Deol Bajaj V. Kunwar Pal Singh Gill-1995(6)
SCC-194, it was observed, that the Court will
not be justified in embarking upon the enquiry
as to reliability or genuineness or otherwise of
the allegations made in the F.I.R or the
complaint and that the extraordinary or
inherent powers do not confer an arbitrary
jurisdiction on the Court to act according to
its whim or caprice. The classic exposition of
law is to be found in State of West Bengal V.
Swapna Kumar Guha - A.I.R. 1982SC-949 in
which it was laid down as follows:
"....the Court will not normally interfere
with an investigation into the case and will
permit investigation into the offence alleged
to be completed; if, however, the materials do
not disclose an offence, no investigation
should normally be permitted ......... Once an
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
4
offence is disclosed, an investigation into the
offence must necessarily follow in the
interests of justice. If, however, no offence is
disclosed,
an
investigation
cannot
be
permitted, as any investigation, in the absence
of any offence being disclosed, will result in
unnecessary harassment to a party, whose
liberty and property may be put to jeopardy
for nothing. The liberty and property of any
individual are sacred and sacrosanct and the
Court zealously guards them and protects
them. An investigation is carried on for the
purpose of gathering necessary materials for
establishing and proving an offence which is
disclosed. When an offence is disclosed, a
proper investigation in the interests of justice
becomes necessary to collect materials for
establishing the offence, and for bringing the
offender to book. In the absence of a proper
investigation in a case where an offence is
disclosed, the offender may succeed in
escaping from the consequence and the
offender may go unpunished to the detriment
of the cause of justice and the society at large.
Justice requires that a person who commits an
offence has to be brought to book and must be
punished for the same. If the Court interferes
with the proper investigation in a case where
an offence has been disclosed, the offence
will go unpunished to the serious detriment of
the welfare of the society and the cause of
justice suffers. It is on the basis of this
principle that the Court normally does not
interfere with the investigation of a case
where an offence has been disclosed......"

10. If on consideration of the relevant
materials, the Court is satisfied that an offence
is disclosed, the Court will normally not
interfere with the investigation into the
offence
and
will
generally
allow
the
investigation into the offence to be completed
for collecting materials for proving the
offence. Without burdening the judgement
with series of decisions on the point, it would
be proper to make a passing reference to the
decision of the apex court reported in Talab
Haji Hussain V. Madhukar Purshottam
Mondekar -A.I.R. 1958 SC- 376; Madhavrao
Jiwaji
Rao
Scindia
V.
Sambhajirao
Chandrojirao Angre -A.I.R. 1988 SC-709;
State of Haryana Vs Bhajan Lal- A.I.R. 1992
SC - 604; State of Bihar V. P.P.Sharma1992SCC(Cri)-192;
Meenakshi
Bala
V.
Sudhir Kumar- SCC(Cri)-1181 ; and State of
Maharashtra V. Ishwar Piraji Kalpatri and
Others -1996 SCC(Cri.)-150.

11. In the backdrop of the above decisions
and the firm legal position, which flows from
them, this Court would not sift the merits of
the defence taken by the petitioners or embark
upon an enquiry as to probability or reliability
or genuineness of the allegations made in the
F.I.R. The fact remains that prima facie, a
cognizable offence is disclosed from the
various averments made in the F.I.R. against
the petitioners.

12. Now it is the time to consider the
question whether the F.I.R. is, in fact,
actuated by mala fide. According to the
learned counsel for the petitioners, the
President and Secretary of the Committee of
Management were on inimical terms and on
account of acrimonious relations, a false
charge has been foisted against the petitioners.
The allegation of mala fide cannot be
accepted mere for the asking. If from the
allegations made in the F.I.R. and the
supporting material, it is desclosed that a
cognizable offence is made out the conduct of
the first informant, which may have been
tainted with mala fide or due to lack of bona
fide would not at all be relevant. In State of
Maharashtra V. Ishwar Piraji Kalpatri and
others (Supra), it was observed that if the
complaint which is made is correct and an
offence had been committed which will have
to be established in a court of law, it is of no
consequence that the complainant was a
person who was inimical or that he was guilty
of malafide. If the ingredients which establish
the commission of the offence of misconduct
exist then, the prosecution cannot fail merely
because there was an animus of the
2All] Jaswant Singh and others V. State of U.P. through its Chief Secretary & others
5
complainant or the prosecution against the
accused. If was further laid down that the
allegations of mala fides may be relevant
while
judging
the
correctness
of
the
allegations or while examining the evidence.
But the mere fact that the complainant is
guilty of mala fide would be no ground for
quashing the prosecution. After having heard
learned counsel for the parties and taken into
consideration the material available on record,
we are not persuaded to hold that the
allegations of mala fide or lack of bona fide
are substantiated in the instant case.

13. We have refrained ourselves from
making any observation touching the merits
of the case and have deliberately avoided to
sift the factual aspect of the controversy lest it
may prejudice the case of either of the parties
at the trial.

14. In conclusion, we find that cognizable
offence against the petitioners is clearly made
out from the averments made in the F.I.R. In
view of the seriousness of the allegations and
gravity of the offence, we are of the view that
it is not a case fit enough in which
intervention of this court is warranted in the
exercise of extraordinary jurisdiction under
Article 226 of the Constitution of India. The
writ petitions are not well merited.

15. Both the writ petitions (Nos. 3897 and
7730 of 1999) are hereby dismissed. The
interim order dated 30.7.1999, which was
extended till further orders on 11.11.1999 in
Criminal Misc. Writ No. 3897 of 1999 is
hereby discharged.

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