Allahabad High Court
Madan Pal Singh vs State Of U.P.Through Chief Secy. ... on 30 March, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Crl. Misc. Case No. 1770 of 2007 (U/s 482 Cr.P.C.) Madan Pal Singh aged about 51 years S/o Sri Badshah Singh, R/o-2/286,Vishal Khand-II,Gomti Nagar, Lucknow. ..........................Petitioner Vs. 1. State of U.P. through Chief Secretary, Government of U.P. Civil Secretariat,Lucknow 2. Principal Secretary, Department of Law, Government of U.P., Civil Secretariat, Lucknow. 3. Principal Secretary, Department of Rural Engineering Services, Government of U.P., Civil Secretariat, Lucknow. 4. Secretary, Vigilance Department Government of U.P., Civil Secretariat, Lucknow. 5. Superintendent of Police/Investigating Officer of Case crime no. 416/99, U/s 420/423/120-B IPC P.S. Bisalpur, District Pilibhit Vigilance Establishment Bareilly Sector, Bareilly. 6. Deputy Registrar, Bisalpur, Pilibhit ...........Opposite parties xxxx Hon'ble Anil Kumar Srivastava-II,J.
1. Heard Shri Rajeev Singh, learned counsel for the petitioner, learned AGA and perused the record.
2. Instant petition under section 482 Cr.P.C. has been preferred with the prayer for setting aside the impugned order no. 2788/62-3-2007-137RI/05 dated 21.6.2007 passed by opposite party no. 3 i.e. Principal Secretary, Department of Rural Engineering Services, Government of U.P., Civil Secretariat, Lucknow and further directing the opposite parties not to proceed on the basis of impugned order in relation to case crime no. 416 of 1999 under section 420, 423,120B and 511 IPC, Police Station Bisalpur, District Pilibhit.
3. According to the petition, petitioner was posted as Executive Engineer in Rural Engineering Department, Badaun. Some persons were trying to get the lease of the land concerned to the Gramsabha Pasgawn, Bisalpur, executed in their favour belonging to scheduled Tribes community. Leases were cancelled by the Collector, Pilibhit vide order dated 29.5.1993. The said order was challenged before the learned Commissioner in Revision No. 308 of 1993, Om Prakash Vs. State and 36 other related matters. The said revision was allowed on 25.01.1994 and the order of cancellation of lease dated 29.5.1993 was set aside by the learned Commissioner, Bareilly. The learned Commissioner referred the matter to the Board of Revenue for reference. Board of Revenue after hearing the parties, decided the reference upholding the judgment and order dated 25.1.1994 passed by the Commissioner, Bareilly. State Government filed a Writ Petition No. 3252 of 1997 (M/S) before this Court challenging the orders of the Board of Revenue as well as the Commissioner, Bareilly on the ground that authorities below have not considered the fact that the land was not fit for cultivation as it was in the shape of forest. The said petition was dismissed by this Court vide order dated 01.07.1997 on two counts. Firstly; it was filed highly belated. Secondly; it was held that the Board of Revenue has rightly taken the view that if the land is of the forest department, then the lease itself is void otherwise it is valid. Special Leave Petition No. 7363 of 1998, State Vs. Rambharosey and others was preferred against the judgment and order dated 01.07.1997 passed by this Court in the aforesaid writ petition before Hon'ble the Apex Court, which was dismissed on 20.11.1998.
4. Some Lessees have executed Power of Attorney of some plot in question in favour of the petitioner on 28.6.1995, 20.10.1995 and 4.7.1996, which were withdrawn on 17.6.1997 by way of executing fresh Power of Attorney in the name of other persons. Petitioner was not having any intention to mischief with any government property. Power of Attorney in favour of the petitioner remained in force with effect from 28.8.1995 to 16.6.1997 of plot no. 219-375/17 Gramsabha Pasgawn, Tehsil Bisalpur, District Pilibhit. This plot was neither recorded in the name of forest department nor notified by the Statement Government as a forest land. No benefit was given by the petitioner out of this plot.
5. A First Information Report was lodged against the petitioner by Inspector, Bisalpur, U.P. Vigilance Department, Bareilly alleging that some complaints have been made. After inquiry, it was found that 37 leases were executed in favour of Ram Bharosey and others, who were not residents of village Pasgawn. Land in question was in the possession of forest department wherein valuable trees were standing. Land was not agricultural. Different persons were made Power of Attorney holders for cutting the trees and to sale the same. Petitioner was also made Power of Attorney holder by Raj Kumar, Babloo, Rudal Prasad, Siya Ram Maurya, Mirza Aslam Beg, petitioner Madan Pal Singh and others have conspired to illegally usurp the forest wood. Accordingly, FIR was lodged under sections 420, 423 and 120B IPC. No case is made out against the petitioner. Representation was made by the petitioner before the investigating officer. Sanction order was passed on the basis of assumptions.
6. Learned counsel for the petitioner submits that lease was held valid by Hon'ble the Apex Court. Power of Attorney executed in favour of the petitioner was subsequently withdrawn. Petitioner has not gained any profit out of the Power of Attorney. It is further submitted that the petition under sectioin 482 Cr.P.C. is maintainable as it is misuse of process of law. If sanction order continues in force, then the petitioner would have to face the trial without any reason. It is further submitted that in view of the Government Order No. 1107/39-4-46 (1)/79 Satarkata Anubhag-4 dated 19.4.89, sanction order is not given on prescribed proforma.
7. Per contra, learned AGA submits that investigation in the matter was concluded. Chargesheet has been submitted against the petitioner. This petition itself is not maintainable. Petitioner has not challenged the chargesheet which has already been filed against him. It is further submitted that this is a petition under section 482 Cr.P.C. wherein the impugned sanction order could not be quashed by this Court.
8. Learned counsel for the petitioner has placed reliance upon State of Punjab Vs. Davinder Pal Singh Bhullar and others , (2011) 14 SCC 770 , wherein it has been held that:
" Application under section 482 Cr.P.C. lies before the High Court against an order passed by the court subordinate to it in a pending case/proceedings. Generally, such powers are used for quashing criminal proceedings in appropriate cases. Such an application does not lie to initiate criminal proceedings or set the criminal law in motion. Inherent jurisdiction can be exercised if the order of the subordinate court results in the abuse of the "process" of the court and/or calls for interference to secure the ends of justice. The use of the word "process" implies that the proceedings are pending before the subordinate court. When reference is made to the phrase "to secure the ends of justice", it is in fact in relation to the order passed by the subordinate court and it cannot be understood in a general connotation of the phrase. More so, while entertaining such application the proceedings should be pending in the subordinate court. In case it attained finality, the inherent powers cannot be exercised. The party aggrieved may approach the appellate/revisional forum. Inherent jurisdiction can be exercised if injustice is done to a party e.g. a clear mandatory provision of law is overlooked or where different accused in the same case are being treated differently by the subordinate court." (para 63) Hon'ble the Apex has further held that "it is something different that the same court exercising authority can, in relation to the same subject matter, invoke its writ jurisdiction as well. Nevertheless, the inherent powers are not to provide universal remedies. The power cannot be and should not be used to belittle its own existence. One cannot concede anarchy to an inherent power for that was never the wisdom of the legislature. To confer unbridled inherent power would itself be trenching upon the authority of the legislature."
9. In the said case, Hon'ble the Apex Court has relied upon Kurukshetra University v. State of Haryana (1977) 4 SCC 451 and State of W.B. v. Sujit Kumar Rana (2004) 4 SCC 129 in para 51, which is reproduced as under:-
"51. The inherent power of the court under section 482 CrPC is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under CrPC. Inherent powers cannot be exercised assuming that the statue conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases."
10. Learned counsel has placed reliance upon Point No. 1 on the guidelines as propounded by Hon'ble Apex Court in State of Haryana and others Vs. Bhajan Lal and others 1992 Supp (1) SCC 335, which is quoted below:-
"1. Where the allegation 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."
11. Exercise of powers under section 482 Cr.P.C. is to be looked into in view of the catena of judgments of Hon'ble Apex Court.
12. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. I need not go into various aspects in detail but it would be suffice to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588, Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74, N. Soundaram vs. P.K. Pounraj, and Another, (2014) 10 SCC 616, Rishipal Singh vs. State of Uttar Pradesh and Another, (2014) 7 SCC 2015 and Manoj Kumar Sharma and Ors. vs. State of Chhattisgarh and Another (2016) 9 SCC 1.
In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, Hon'ble the Apex Court has further laid down, the guidelines for exercise of the power by the High Court under Section 482 Cr.P.C. It has been held that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.
It has been held by the Hon'ble Apex Court in N. Soundaram vs. P.K. Pounraj, and Another, (2014) 10 SCC 616 that :-
"13. It is well settled by this Court in a catena of cases that the power under Section 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. (See state of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335). The inherent power should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. (See MCD V. Ram Kishan Rohtagi (1983) 1 SCC 1. An investigation should not be shut out at the threshold if the allegations have some substance. (See Vinod Raghuvanshi v. Ajay Arora, (2013) 10 SCC 581.
It has been held by the Hon'ble Apex Court in Rishipal Singh vs. State of Uttar Pradesh and Another, (2014) 7 SCC 2015 that :-
"13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegations in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact.
"In Manoj Kumar Sharma and Others (Supra) Hon'ble the Apex Court has relied upon the law laid down in State of Haryana v. Bhajan Lal (Supra) wherein it was held that "though it may not be possible to lay down any precise, clearly defined, sudated -fficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and 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. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice."
13. Facts of the case reveals that Power of Attorney was executed in favour of the petitioner while he was serving as public servant. Sanction order was passed by the competent authority after recording satisfaction for prosecution of the petitioner before the competent court. Petitioner has not challenged any proceedings pending before a subordinate court, rather challenged the sanction order in the present petition. Petition under section 482 Cr.P.C. is not maintainable in view of the law laid down in Davinder Pal Singh Bhullar ''s case (supra). Chargesheet has been filed against the petitioner.
14. Further sanctioning authority has granted sanction after going through the material available on record. Mere format of sanction does not make a difference when it is shown that the sanction was granted after considering the material collected and available against accused.
15. It is submitted by the learned counsel that charge-sheet was submitted after filing of the petition which is against the spirit of the interim order passed by this Court on 5.7.2007. Relevant part of the interim order dated 5.7.2007 is reproduced here below:-
" Meanwhile, no coercive mentioned shall be adopted against the petitioner."
16. This court has nowhere restrained the investigating agency to file the report as required under section 173 Cr.P.C., rather an interim protection was granted to the petitioner. Hence, it cannot be accepted that mere pendency of the petition under section 482 Cr.P.C. would preclude the investigating agency to proceed further in accordance with law.
17. In view of the above, I am of the opinion that the petition is devoid of merit and is liable to be dismissed.
18. In the result, petition is dismissed.
Order Date: 30.3.2017 GSY