- (1.) This application, under Section 482 Cr.P.C., has been filed by Jiya Afzal and Akhlaq Ahmad against State of U.P. and another, with a prayer for setting aside entire proceeding of Criminal Case No. 3520 of 2011 (State Vs. Akhlaq Ahmad and others), arising out of Case Crime No. 550 of 2011, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Kotwali Nagar, District Mau, pending in the court of Chief Judicial Magistrate, Mau.
(2.) Learned counsel for applicants argued that accused-applicants are innocent. They have been falsely implicated and charge sheeted for offences, as above. Institution known as Madarsa Talimul Qurran Mohsinpura (Makkhanwan), Maunath Bhanjan, District Mau is recognized by Arbi and Farsi Madarsa Board, U.P., governed under the recognition and Service Rules, 1987, approved by State of U.P. (Education Department of State of U.P.). This Institution obtained recognition from Arbi and Farsi Madarsa Board, of which certificate of recognition to this Institution dated 16.06.2003 was issued by Registrar Arbi and Farsi Examination U.P., Lucknow. Above institution was being regulated by a society of Committee of Management, registered under Society Registration Act , of which applicant no. 2 was member. He had submitted his resignation from membership of the Committee, before Manager of Committee of Management on 01.05.2008, which was accepted by Committee of Management in above meeting held on 11.05.2008, wherein agenda regarding resignation and acceptance of resignation of applicant no. 2 Akhlaq Ahmad, S/o Late Abdul Latif, was drawn. After acceptance of resignation in meeting of Committee of Management, held on 11.05.2008, he was not a member of Management Committee anymore. State of U.P. Government, under the scheme of Sarv Shiksha Abhiyan, issued a circular for guaranteeing education at primary level to each children of State, wherein Shiksha Guarantee Yojna was proclaimed and directed to be implemented by every District Basic Education Officer in U.P. A direction for appointment on the post of Anudeshak for imparting education to the children at primary level, on the contractual basis, was provisioned. This scheme was operative in Madarsas, recognized and imparting education till primary level. The Director of Education of State Programme, Uttar Pradesh, had issued a circular letter to each District Basic Education Officer, U.P. for ensuring compliance of above programme, thereby providing guidelines and appointing Anudeshak at every primary school as well as Madarsa level, imparting primary level education to children. Under said scheme, Committee of Management of Madarsa Talimul Qurran Mohsinpura (Makkhanwan), Maunath Bhanjan, District Mau, invited applications for appointment on the post of Anudeshak in his Institution under above Shiksha Guarantee Yojna, for which applicant no. 1 was eligible. Manager of Institution as well as its Committee, by way of resolution, appointed applicant no. 1 as Anudeshak on 25.05.2008. This was submitted for approval by Basic Shiksha Adhikari, Mau and after its approval, applicant no. 1 imparted teaching as Anudeshak in above Madarsa. Mohd. Hanif, one native of area, moved a complaint before Basic Shiksha Adhikari, Mau making a complaint of appointment of applicant no. 1 illegally. A notice was issued to Management Committee of Madarsa concerned on 28.07.2010, wherein reply by Madarsa was submitted mentioning therein that applicant no. 2 had not been a member of above Committee of Management on the date of appointment of applicant no. 1. Moreso, Anudeshak was not a regular service, either in Group D or as a Clerk, for which there was bar in Basic Education Act with Rules framed therein. Even after it, District Basic Education Officer, Mau ceased appointment of applicant no. 1. Again Shamim Ahmad, who was earlier Manager of Madarsa concerned and was replaced by the then Manager Kabir Ahmad, created a disturbance in the peaceful functioning of Madarsa and with mala fide motive, moved an application under Section 156(3) Cr.P.C. against the applicants as well as Manager of Institution with other members with contention of fabrication of documents for getting job of Anudeshak by applicant. This application was allowed by Court of Chief Judicial Magistrate with a direction for registration of Case Crime No. 550 of 2011, under Sections 419 , 420 , 467 , 468 , 471 I.P.C., Police Station Kotwali Nagar, District Mau. Investigation of this case crime number resulted submission of charge sheet for those offences, whereas no investigation was there nor any offence was made out. Merely on the statement of Basic Shiksha Adhikari Dr. Chandra Pal and Shamim Ahmad, above charge sheet was filed and under routine manner, with no application of judicial mind by Magistrate concerned, cognizance for offence was taken, wherein cognizance order dated 05.10.2011 was passed. U.P. Basic Education Act, 1972 with Service Rules 1984 was not applicable regarding appointment of Anudeshak in Sarv Shiksha Abhiyan under Shiksha Guarantee Yojna in a Madarsa, having recognition from Arbi and Farsi Madarsa Board. Moreso, at the time of appointment of applicant no. 1 as Anudeshak, applicant no. 2 was not member of society, hence, this allegation was of no substance. Application was filed by erstwhile Manager, having no locus. Hence, this application with above prayer.
(3.) Learned counsel for opposite party no. 2 vehemently opposed argument of learned counsel for applicants by way of pressing counter affidavit, filed by him, that as per statement of Dr. Chandra Pal, Basic Shiksha Adhikari as well as Assistant Registrar, Firms, Societies and Chits, Azamgarh, recorded under Section 161 Cr.P.C., opposite party no. 2 was registered member of Management Committee of Madarsa concerned. This forged and fictitious resignation and its acceptance by Management Committee, having members, who are accused in this proceeding, were subsequently manufactured. It was never communicated to Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh, for making any change in list of member of Management Committee of Madarsa concerned. Rather, a certificate dated 07.07.2011 was issued by Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh, mentioning name of applicant no. 2 at serial no. 14 of list of members of Management Committee of Madarsa concerned. Basic Shiksha Adhikari, Mau in his statement has categorically said that it was an appointment under fraud and misconception of fact. Applicant no. 2 was member of Management Committee and his son applicant no. 1 was appointed as an Anudeshak against the Rules, because of being close relative of Management Committee's member. Madarsa was initially recognized under U.P. Basic Education Act, 1972. Thus, U.P. Basic Education Act, 1972 and Rules made therein of 1984 is fully applicable on Madarsa in question. Registrar, Arbi and Farsi Examination, U.P. Lucknow had accepted recognition given under above Act. Hence, it can never be said that subsequent Rules of 1987 was only applicable for Madarsa and its employees. Hence, opposite party no. 2 was erstwhile Manager of Committee of Management and he brought this proceeding in motion for the fraud committed with above Institution, for which he was fully competent, having locus. Hence, this application deserves to be dismissed.;