# Vijendra Singh v. State of U.P. & An.r Opp. Parties

- **Citation:** (2014) 2 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-13
- **Case number:** Criminal Misc. Application No.23662 of 2012
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijendra-singh-v-state-of-u-p-an-r-opp-parties-42868
- **Pages:** 6

## Headnote

Cr.P.C.-482-Quashing
of
criminal
proceeding-offense
under
section
420
I.P.C.-allegation
of
making
false
declaration
in
affidavit-regarding
non
practicing lawyer-very allegation stand
falsified-from judgment of High Court in
which petitioner-found surrendered his
registration
certificate-stood
confirmed
from record of Bar Council-continuance of
further proceeding amounts to wasted of
precious time of Court-in view of Apex
Court-decision-entire proceeding quashed.

Held: Para-11
Coming
to
the
instant
case,
the
prosecution case was based only on the
allegation that the applicant being an
enrolled
advocate
made
a
false
statement that he was not an advocate
so
as
to
obtain
registration
as
a
contractor. Whether
a person is a
practicing advocate or has surrendered
his license to practice can no better be
ascertained than from the record of the
Bar Council. Therefore, once from the
record produced by the Bar Council
before this Court in Writ C no.45873 of
2012, this Court, by its judgment and
order dated 11.10.2012, held that the
applicant had surrendered his certificate
of enrollment on 28th January, 1979 and
that he had not applied for renewal of
his
certificate
of
enrollment,
the
statement made by the applicant in the
affidavit of the year 2011 that he is not a
practicing Advocate, cannot be said to be
false or misleading so as to justify
drawing of proceedings against him.
Thus,
the
very
foundation
of
the
prosecution case stands demolished, by
a document which is none other than a
judgment
of
this
Court
and
the
correctness of which has not been
doubted by the learned counsel for the
parties, further, when there is no dispute
of it having attained finality. In such
circumstances, there is no shadow of
doubt
that
the
prosecution
of
the
applicant would be an exercise in futility
and waste of precious time of the court.
Holding
of
trial
now,
when
the
fundamental issue has already been
decided by this Court in favour of the
applicant (accused), would be travesty of
justice. Accordingly, this Court considers
it to be a fit case where the proceedings
deserve to be quashed.

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES
amount of Rs. One lac shall also be paid
to the petitioners within the aforesaid
period of three months from today. The
Principal
Secretary,
Public
Works
Department, Government of U.P., shall
ensure that the order of this Court is
complied with within the specified time.

12. This writ petition stands allowed
to the extent as indicated above.

13. The office is directed to supply a
copy of this order to the learned Standing
Counsel so as to enable him to forward
the same to the Principal Secretary, Public
Works Department, Government of U.P.,
Lucknow for necessary compliance.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2014

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Misc. Application No.23662 of
2012

Vijendra Singh ...Applicant
Versus
State of U.P. & An.r ...Opp. Parties

Counsel for the Petitioner:
Sri V.P. Srivastava, Sri Amit Kumar Singh,
Sri Umesh Vats, Sri Ranjay Kumar, Sri
Sanjay Kumar Dwuvedi

Counsel for the Respondents:
A.G.A, Sri Satya Prakash Srivastava, Sri
Kamlesh Kumar Tiwari, Sri K.K. Rao.

Cr.P.C.-482-Quashing
of
criminal
proceeding-offense
under
section
420
I.P.C.-allegation
of
making
false
declaration
in
affidavit-regarding
non
practicing lawyer-very allegation stand
falsified-from judgment of High Court in
which petitioner-found surrendered his
registration
certificate-stood
confirmed
from record of Bar Council-continuance of
further proceeding amounts to wasted of
precious time of Court-in view of Apex
Court-decision-entire proceeding quashed.

Held: Para-11
Coming
to
the
instant
case,
the
prosecution case was based only on the
allegation that the applicant being an
enrolled
advocate
made
a
false
statement that he was not an advocate
so
as
to
obtain
registration
as
a
contractor. Whether
a person is a
practicing advocate or has surrendered
his license to practice can no better be
ascertained than from the record of the
Bar Council. Therefore, once from the
record produced by the Bar Council
before this Court in Writ C no.45873 of
2012, this Court, by its judgment and
order dated 11.10.2012, held that the
applicant had surrendered his certificate
of enrollment on 28th January, 1979 and
that he had not applied for renewal of
his
certificate
of
enrollment,
the
statement made by the applicant in the
affidavit of the year 2011 that he is not a
practicing Advocate, cannot be said to be
false or misleading so as to justify
drawing of proceedings against him.
Thus,
the
very
foundation
of
the
prosecution case stands demolished, by
a document which is none other than a
judgment
of
this
Court
and
the
correctness of which has not been
doubted by the learned counsel for the
parties, further, when there is no dispute
of it having attained finality. In such
circumstances, there is no shadow of
doubt
that
the
prosecution
of
the
applicant would be an exercise in futility
and waste of precious time of the court.
Holding
of
trial
now,
when
the
fundamental issue has already been
decided by this Court in favour of the
applicant (accused), would be travesty of
justice. Accordingly, this Court considers
it to be a fit case where the proceedings
deserve to be quashed.

(Delivered by Hon'ble Manoj Misra, J.)
2 All] Vijendra Singh Vs. State of U.P. & Anr.
631

1. Heard Sri Umesh Vats, holding
brief of Sri Amit Kumar Singh, learned
counsel for the applicant; Sri K.K. Rao,
holding brief of Sri Satya Prakash
Srivastava, for the opposite party no.2;
and the learned AGA for the State.

2. By the present application, under
Section 482 Cr.P.C., the applicant has
sought for quashing of the proceedings
of criminal case no.1595 of 2012, arising
out of charge-sheet submitted by the
police under Section 420 IPC in case
crime no.464 of 2012, police station
Kotwali, district Ballia, pending in the
Court of Chief Judicial Magistrate,
Ballia.

3. A perusal of the record reveals
that the opposite party no.2 lodged a first
information report alleging therein that
the applicant Vijendra Singh is working
as a registered thekedar (contractor) in the
food and civil supplies department of
district Ballia. For attaining eligibility to
be registered as a thekedar certain
formalities are to be completed. One of
them is to have a character certificate. It is
alleged that in paragraph no.4 of the
affidavit filed by the applicant, for
obtaining character certificate, it has been
falsely alleged by him that he is not an
advocate enrolled with the Bar Council
when, in fact, he is enrolled as an
advocate with enrollment number 1018 of
1972. It was thus alleged that for the
purpose of obtaining registration as a
contractor, the applicant made a false
representation and, as such was guilty of
an offence punishable under section 420
IPC. The poilce conducted investigation
and laid charge sheet dated 30.06.2012 on
which cognizance was taken on 5.7.2012.

4. The submission of learned
counsel for the applicant is that although
the applicant was initially enrolled as an
Advocate, on 5th October, 1972, with the
Bar Council of U.P., having enrollment
no.1018 of 1972, but the said enrollment
certificate was surrendered on 28th
January, 1979 along with an application
that the applicant will not be practising
law and, therefore, the original certificate
of
enrollment
may
be
treated
as
'surrendered'. It has been submitted that in
connection with the matter, the Regional
Food Controller, Basti region, Basti had
passed an order dated 23rd August, 2012,
thereby cancelling the registration of the
applicant as a contractor on ground that in
the inquiry it was found that on 27th
April, 2012, the applicant had deposited
Rs.1,290/- for renewal of his enrollment
as an Advocate. It has been submitted that
the
applicant
had
contested
the
proceedings with regard to cancellation of
his registration as a contractor claiming
before the authority concerned that he had
not applied for renewal of enrollment by
depositing Rs.1,290/- and that it appears
that some impostor, in order to cause
damage to the applicant, has made such
deposit. It has been submitted that the said
matter travelled to this Court vide Writ C
no.45873 of 2012, wherein the original
record was summoned from the Bar
Council of U.P. and this Court had found,
as a fact, that the enrollment certificate
was surrendered by the applicant on 28th
January, 1979 and that the deposit of
Rs.1,290/-
seeking
renewal
of
the
enrollment was not made by the applicant
and, accordingly by order dated 11th
October, 2012, this Court had set aside
order passed by the Regional Food
Controller, Basti Region, Basti after
recording a categorical finding to the
above effect. It has been submitted that
632 INDIAN LAW REPORTS ALLAHABAD SERIES
since the issue has already been set at rest
by an authoritative pronouncement of this
Court in Writ C no.45873 of 2012 and the
order passed by this Court has become
final between the parties, the continuance
of proceedings, as against the applicant,
on the same issue, which has already been
decided in favour of the applicant, would
amount to abuse of the process of the
Court and, as such, to secure the ends of
justice, the proceedings be quashed. The
copy of the order dated 11th October,
2012, passed by this Court in Writ C
No.45873 of 2012 has been produced in
Court, which has been taken on record.

5. Learned counsel for the opposite
parties do not dispute the passing of the
order dated 11th October 2012 in Writ C
No.45873 of 2012. They also do not
dispute that the aforesaid order has
attained finality.

6. I have perused the order passed
by this Court in Writ C No.45873 of
2012. A perusal thereof reveals that this
court has rendered a clear finding that the
applicant had surrendered the enrollment
certificate in the year 1979 with the Bar
Council, which is still lying in the file of
the Bar Council and that the applicant has
not withdrawn the surrender and had
neither applied for duplicate identity card
nor had deposited Rs.1290/- towards
renewal fees. The relevant observation of
this Court's order dated 11.10.2012 passed
in Writ C No.45873 of 2012, as contained
in paragraph 10 of the order, is
reproduced herein below:

"The original record of the Bar
Council of Uttar Pradesh and the order
passed by the Chairman, Bar Council
clearly establishes that the enrollment
certificate surrendered in the year 1979 is
still available in the file of Bar Council.
The applicant has not withdrawn the
surrender and had not applied for
duplicate identity card nor had deposited
Rs.1290/-."

7. From the decision of this court it
is thus established that the applicant
having surrendered his enrollment as an
advocate in the year 1979, did not make
any false misrepresentation, with a
dishonest intention, in the affidavit dated
8.8.2011 (Annexure 2 to the affidavit filed
in support of the application), by stating
he was not an advocate. Therefore, the
very basis of his prosecution stands
nullified.

8. Ordinarily, while considering a
prayer for quashment of the criminal
proceedings,
only
the
prosecution
documents are to be considered and the
defence documents or the defence version
given by the accused in support of his
case
cannot
be
considered
while
exercising the power under section 482 of
the
Code
of
Criminal
Procedure.
However, there is no absolute bar that the
Court, in exercise of its power under
section 482 of the Code, cannot at all
consider
the
documents--which
are
beyond suspicion or doubt--placed by the
accused, if on the face of those
documents, the accusations cannot stand.
In Harshendra Kumar D. v. Rebatilata
Koley, (2011) 3 SCC 351, the apex court,
in paragraphs 25 and 26 of the report,
observed as follows:

"25. In our judgment, the above
observations cannot be read to mean that
in a criminal case where trial is yet to
take place and the matter is at the stage of
2 All] Vijendra Singh Vs. State of U.P. & Anr.
633
issuance
of
summons
or
taking
cognizance, materials relied upon by the
accused which are in the nature of public
documents or the materials which are
beyond suspicion or doubt, in no
circumstance, can be looked into by the
High Court in exercise of its jurisdiction
under Section 482 or for that matter in
exercise of revisional jurisdiction under
Section 397 of the Code. It is fairly settled
now that while exercising inherent
jurisdiction
under
Section
482
or
revisional jurisdiction under Section 397
of the Code in a case where complaint is
sought to be quashed, it is not proper for
the High Court to consider the defence of
the accused or embark upon an enquiry in
respect of merits of the accusations.
However, in an appropriate case, if on the
face of the documents -- which are beyond
suspicion or doubt -- placed by the
accused, the accusations against him
cannot stand, it would be travesty of
justice if the accused is relegated to trial
and he is asked to prove his defence
before the trial court. In such a matter,
for promotion of justice or to prevent
injustice or abuse of process, the High
Court may look into the materials which
have significant bearing on the matter at
prima facie stage.

26. Criminal prosecution is a serious
matter; it affects the liberty of a person.
No greater damage can be done to the
reputation of a person than dragging him
in a criminal case. In our opinion, the
High Court fell into grave error in not
taking
into
consideration
the
uncontroverted documents relating to the
appellant's resignation from the post of
Director of the Company. Had these
documents been considered by the High
Court, it would have been apparent that
the appellant has resigned much before
the
cheques
were
issued
by
the
Company."

9. Further, in the case of Rajiv
Thapar v. Madan Lal Kapoor, (2013) 3
SCC 330, the apex court, while laying
down the various tests as to when a
defence document can be considered for
quashing the proceedings, in exercise of
power under section 482 of the Code, in
paragraph 29 onwards of the report,
observed as follows:

29............................To
invoke
its
inherent jurisdiction under Section 482
CrPC the High Court has to be fully
satisfied that the material produced by the
accused is such that would lead to the
conclusion that his/their defence is based
on sound, reasonable, and indubitable
facts; the material produced is such as
would rule out and displace the assertions
contained in the charges levelled against
the accused; and the material produced is
such as would clearly reject and overrule
the veracity of the allegations contained
in the accusations levelled by the
prosecution/complainant. It should be
sufficient to rule out, reject and discard
the
accusations
levelled
by
the
prosecution/complainant,
without
the
necessity of recording any evidence. For
this the material relied upon by the
defence should not have been refuted, or
alternatively,
cannot
be
justifiably
refuted, being material of sterling and
impeccable quality. The material relied
upon by the accused should be such as
would persuade a reasonable person to
dismiss and condemn the actual basis of
the accusations as false. In such a
situation, the judicial conscience of the
634 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court would persuade it to exercise
its power under Section 482 CrPC to
quash such criminal proceedings, for that
would prevent abuse of process of the
court, and secure the ends of justice.

30. Based on the factors canvassed
in the foregoing paragraphs, we would
delineate the following steps to determine
the veracity of a prayer for quashment
raised by an accused by invoking the
power vested in the High Court under
Section 482 CrPC:

30.1. Step one: whether the material
relied upon by the accused is sound,
reasonable, and indubitable i.e. the
material is of sterling and impeccable
quality?

30.2. Step two: whether the material
relied upon by the accused would rule out
the assertions contained in the charges
levelled against the accused i.e. the
material is sufficient to reject and
overrule the factual assertions contained
in the complaint i.e. the material is such
as would persuade a reasonable person to
dismiss and condemn the factual basis of
the accusations as false?

30.3.
Step
three:
whether
the
material relied upon by the accused has
not
been
refuted
by
the
prosecution/complainant;
and/or
the
material is such that it cannot be
justifiably
refuted
by
the
prosecution/complainant?

30.4. Step four: whether proceeding
with the trial would result in an abuse of
process of the court, and would not serve
the ends of justice?

30.5.If the answer to all the steps is in
the affirmative, the judicial conscience of
the High Court should persuade it to quash
such criminal proceedings in exercise of
power vested in it under Section 482 CrPC.
Such exercise of power, besides doing
justice to the accused, would save precious
court time, which would otherwise be
wasted in holding such a trial (as well as
proceedings arising therefrom) specially
when it is clear that the same would not
conclude in the conviction of the accused."

10. The view taken in Rajiv Thapar's
case has been followed and reiterated by
the Apex Court in the case of Prashant
Bharti Vs. State (NCT of Delhi) : (2013)
9 SCC, 293.

11. Coming to the instant case, the
prosecution case was based only on the
allegation that the applicant being an
enrolled advocate made a false statement
that he was not an advocate so as to
obtain
registration
as
a
contractor.
Whether a person is a practicing advocate
or has surrendered his license to practice
can no better be ascertained than from the
record of the Bar Council. Therefore, once
from the record produced by the Bar Council
before this Court in Writ C no.45873 of
2012, this Court, by its judgment and order
dated 11.10.2012, held that the applicant had
surrendered his certificate of enrollment on
28th January, 1979 and that he had not
applied for renewal of his certificate of
enrollment, the statement made by the
applicant in the affidavit of the year 2011 that
he is not a practicing Advocate, cannot be
said to be false or misleading so as to justify
drawing of proceedings against him. Thus,
the very foundation of the prosecution case
stands demolished, by a document which is
2 All] Raja John Bunch Vs. Union of India & Ors.
635
none other than a judgment of this Court
and the correctness of which has not been
doubted by the learned counsel for the
parties, further, when there is no dispute
of it having attained finality. In such
circumstances, there is no shadow of
doubt that the prosecution of the applicant
would be an exercise in futility and waste
of precious time of the court. Holding of
trial now, when the fundamental issue has
already been decided by this Court in
favour of the applicant (accused), would
be travesty of justice. Accordingly, this
Court considers it to be a fit case where
the proceedings deserve to be quashed.

12. For the reasons stated here-inabove, the application is allowed. The
proceedings of criminal case no.1595 of
2012,
arising
out
of
charge-sheet
submitted by the police, under Section
420 IPC, in case crime no.464 of 2012,
police station Kotwali, district Ballia,
pending in the Court of Chief Judicial
Magistrate, Ballia, are hereby quashed.

13. There shall be no order as to
costs.
--------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2014

BEFORE
THE HON'BLE DR. DHANANJAYA
YESHWANT CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ (P.I.L) Petition No.24206
of 2014

Raja John Bunch ...Petitioner
Versus
Union of India & Ors. ...Respondents
Counsel for the Petitioner:
Sri Tanveer Ahmad Siddiqui, Sri Bidhan
Chandra Rai

Counsel for the Respondents:
A.S.G.I., Sri Bhoopendra Nath Singh, Sri
Krishna Agrwal

Constitution of India, Art.-226- Public
Interest Litigation-petitioner seeking to
quash the provisions of section 33(7) and
section 70 of Representation of people Act
1951 contrary to provisions of Art. 101 of
constitution-held-if a person elected as M.P.
Or
MLA
has
vacate
on
seat-within
prescribed period-otherwise both shall be
deemed vacated-considering such clear
provision-no interfere on called far-petition
can not be entertained-nor mandamus can
be issued to the legislative body to enact
particular law sole-wisdom of legislaturepetition dismissed.

Held: Para-14&15
14. These, in our view, are matters of
legislative policy. What the Election
Commission of India has observed is
undoubtedly a matter which must be
attributed
the
greatest
weight
and
deference but that would not result in an
existing provision of law being rendered
unconstitutional or arbitrary.

15. In a cases pertaining to the
enactment of a particular law or policy,
the Court would not be justified in
issuing a writ of mandamus directing
that the law should be amended. A
mandamus to that effect cannot be
issued by the High Court under Article
226 of the Constitution. No direction can
be issued to a legislative body to enact a
law or to amend an existing law. The
alternate reliefs which have been sought
in the petition are all basically matters of
legislative
policy.
The
Election
Commission of India, which is vested
with the authority under Article 324 of
the Constitution of superintendence,
direction and control over elections, has
formulated its suggestions for electoral
reforms. The matter must rest there,