Allahabad High Court
Zameer Hasan @ Shabbir vs State Of U.P. on 19 February, 2015
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 47 Case :- APPLICATION U/S 482 No. - 41 of 1994 Applicant :- Zameer Hasan @ Shabbir Opposite Party :- State Of U.P. Counsel for Applicant :- N.I.Jafri,Dileep Gupta,Dileep Kumar,Raj Kumar Mishra,Rajeev Gupta,V.K.Shukla Counsel for Opposite Party :- AGA Hon'ble Mrs. Ranjana Pandya, J.
1. Heard learned counsel for the applicant and learned AGA for the State.
2. This application under section 482 Cr.P.C. has been filed for quashing of the proceeding of Special Criminal Case No. 5 of 1993 (State vs. Zamir Hasan) arising out of Case Crime No. 50 of 1990, under sections 8/12 of Prevention of Corruption Act, PS Civil Lines, district Etawah pending in the court of Sessions Judge, Etawah.
3. It has been contended that the applicant is the licence partner of M/s Hindustan Arms and Ammunition Store, Katra Sewakali, Kanpur Road, Etawah. He is the co-tenure holder in possession of certain land, which was sought to be acquired by Awas Vikas Parishad, Etawah for the purposes of construction of residential house. These acquisition proceedings were challenged by writ petition and later on, a Special Leave Petition filed before the Apex Court was filed, in which directions were issued to the parties to maintain status quo. In spite of the aforesaid order, the Junior Engineer while entering into a criminal conspiracy forged the documents showing delivery of aforesaid property in favour of Awas Vikas Parishad showing possession to have been delivered on 17.11.1988. The said possession certificate was forged. A criminal offence under sections 218, 420, 463, 471, 468 IPC was committed by Special Land Acquisition Officer, Etawah and other co-accused persons for which the cousin brother of the applicant Mazharul Hasan lodged a criminal complaint case No. 580 of 1989 in the Court of Chief Judicial Magistrate, Etawah, in which pairvi was done by the applicant. In the complaint case, the accused persons were summoned vide order dated 17.05.1989. One K.K. Sinha was posted as District Magistrate, Etawah, and as soon as he took over as District Magistrate, he started harassing the applicant because the applicant was doing pairvi in the Criminal Complaint Case No. 580 of 1989. Shri K.K. Sinha forced the applicant to withdraw his case against A.C. Sinha, who was the close associate of K.K. Sinha. The applicant refused to withdraw the case. The applicant's firm was granted quota of 315 bore rifle cartridges in 2000 in nuber, which was increased to 10,000 under the orders of District Magistrate passed on 27.08.1988, which was further extended upto 50,000 vide order dated 31.05.1989. The firm of the applicant further got other items, various arms and cartridges, which had been extended from time to time. The applicant' firm placed an order of purchase of 50,000 cartridges and submitted a draft of receiving order. The ammunition factory demanded "No Objection Certificate" from the District Magistrate in respect of purchase of 50,000 cartridges, which was issued. This No Objection Certificate was furnished to the ammunition factory and 50,000 rifle cartridges were delivered to the applicant some times in December, 1989. The entry of these cartridges was made in the relevant register after which selling of the cartridges began. 25000 cartridges were sold but on the basis of certain news in the local newspaper, the District Magistrate initiated inquiry in respect of 50,000 cartridges. The City Magistrate visited the applicant's firm. The shop was found closed due to which City Magistrate sealed the channel gate of the work shop. The representative of the applicant's firm requested the locks to be opened for which orders of the District Magistrate were required. The applicant met the District Magistrate to do the needful, who got the shop verified and stock was found up to the mark, but the applicant's firm was restrained from selling cartridges. Initially the applicant's firm was a proprietorship firm and the applicant's father was the sole proprietor, who was subsequently converted into a partnership firm. The applicant and his son became the partners. Some amount of sale tax was also due upon the applicant's firm for which time was sought by the applicant. On 14.2.1990 till 4.00 PM, the applicant remained at the sale tax office for this work. After leaving the office of sale tax the applicant went to the District Magistrate seeking permission of sale of 10,000/- cartridges. The said application was not received by the Arm Licence clerk and the officer Incharge Arms, who directed the applicant to appear before the District Magistrate. The applicant presented the application to the District Magistrate, who was sitting in his chamber of his residence. At that point of time, the District Magistrate asked the applicant to withdraw his case, he also hurled abuses at the applicant, called his orderly and concocted the whole story. It has further been contended that the SDM, Shri N.K. Singh was shown to be witness of the incident, but he is not examined by the Investigating Officer. The licence of the applicant was never suspended or cancelled, but the firm was restrained from selling cartridges. Against this order Civil Misc. Writ Petition 9231 of 1990 was preferred, in which interim order was passed. The land which was said to have been acquired by the Awas Vikas was the land in respect of which proceedings under section 145 Cr.P.C. were initiated. Again a Criminal Revision No. 1238 of 1990 was preferred, in which the proceedings of the lower court were stayed.
4. The story as narrated in the charge sheet and in the FIR is fully incorrect and no prudent person could ever believe the same to be proved that the applicant tried to bribe the District Magistrate Etawah, in the presence of S.D.M. Shri N.K. Singh. All these have been done because the applicant highlighted the high handedness of the District Administration. The entire criminal proceedings is nothing but an abuse of process of law. Hence, the entire criminal proceedings of Special Case No. 5 of 1993 (State vs. Zameer Hasan alias Shabbir) arising out of Case Crime No. 50 of 1990, under section 8/12 of Prevention of Corruption Act, PS Civil Lines, Etawah, district Etawah pending before the Sessions Judge, Etawah be quashed.
5. It has been contended on behalf of the applicant that section 165 IPC stood repealed in the year 1988, hence the FIR lodged by the District Magistrate, who is also the head of the police department is nullity on which no investigation could have been commenced.
6. It has further been contended that the offence was being committed in the presence of the District Magistrate as alleged, hence he could have taken note of the matter and could have got the applicant arrested at the spot.
7. It has also been submitted that the S.D.M. Shri N.K. Singh, who is said to be the eye-witness of the incident was not examined by the Investigating Officer. The other witness, who are said to have come after the incident cannot be the witnesses of the incident. The FIR being lodged by an I.A.S. Officer and the summoning order being bad in the eyes of law as the court summoning the accused did not apply judicial mind while passing the summoning order is liable to be quashed.
8. It has also been submitted on behalf of the applicant that in the charge sheet initially section 165 IPC was written, which was struck down by a stroke of pen and section 8/12 Prevention of Corruption Act was mentioned which could not have been done.
9. Learned counsel for the applicant has also contended that the applicant is not a public servant, hence he cannot be prosecuted under the provisions of Prevention of Corruption Act.
10. Learned counsel for the applicant submitted that the present proceedings is out come of malice and retaliation inasmuch as the cousin brother namely, Mazharul Hasan filed a criminal complaint bearing Case No. 580 of 1989 in the court of Chief Judicial Magistrate, Etawah, in which the applicant was doing pairvi. In that case, the Chief Judicial Magistrate summoned Taiyab Hussain, R. K. Tiwari and Ram Chandra, Special Land Acquisition Officer, Kanpur under sections 420, 463, 468, 471 IPC, in which case, the accused are still absconding and as a counter blast to save the public servants, who had forged and fabricated the documents showing fictitious transfer of possession, the present FIR was lodged as a counter blast. Although, the applicant is holding a valid lincence which has neither been cancelled nor suspended.
11. Learned counsel for the applicant has placed reliance upon the judgment reported in 1998 Supreme Court Criminal Ruling, 540, M/s Pepsi Foods Ltd and another vs. Special Judicial Magistrate and others, in which it has been held that it is well settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, the Apex Court has laid down the following principles of law "This court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Article 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to".
12. In this context, it has been submitted on behalf of the applicant that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused.
13. Reliance has also been placed upon the judgement reported in (2009) 7 Supreme Court Cases 495, Devendra and others vs State of Uttar Pradesh and another, in which the Apex Court has held that "in a case of this nature where even, according to Mr Das, no case has been made out for taking cognizance of an offence under Section 420 of the Penal Code, it was obligatory on the part of the learned Chief Judicial Magistrate to apply his mind to the contents of the charge-sheet. Such application of mind on his part should have been reflected from the order, hence, since the trial court has not applied its mind in passing the summoning order, which has been passed in a mechanical way, the application needs to be allowed.
14. Learned AGA has opposed the application and has submitted that at this stage, this Court cannot enter into merits of the case and as has been laid down by the Hon'ble Apex Court in Eicher Tractor Ltd & others vs Harihar Singh and Another, 2009 (1) Crimes (SC) 144, in which the Apex Court has laid down that it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. Hence, the application is liable to be dismissed.
15. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by the Apex Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by the Apex Court are as follows: (SCC pp. 378-79, para 102) "
(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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides 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."
16. As far as section 165 IPC is concerned, it stood repealed in the year 1988. It was repealed by the Prevention of Corruption Act, 1988 (49 of 88) section 31 w.e.f. 09.09.1988, whereas the FIR in the present case was lodged on 14.02.1990 when admittedly section 165 IPC stood repealed.
17. As far as the Magistrate taking cognizance under incorrect section is concerned, the Hon'ble Apex Court in Kishun Singh and others vs State of Bihar, (1993) 2 SCC 16, has been laid down that it is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender.
18. Section 190 of the Code sets out the different ways in which a Magistrate can take cognizance of an offence, that is to say, take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. In Rabindra Nath Dubey and others vs The State of Jharkhand while referring Kishun Singh's case (supra), the Apex Court has held that
19. Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. Thus, in spite of the fact that section 165 IPC stood repealed, the Magistrate was competent to take cognizance in regard to the offence.
20. Section 116 IPC runs as follows:
"116. Abetment of offence punishable with imprisonment--if offence be not committed.--Whoever abets an offence punishable with imprisonment shall, if that offence be not committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one-fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both;
If abettor or person abetted be a public servant whose duty it is to prevent offence.--and if the abettor or the person abetted is a public servant, whose duty it is to prevent the commission of such offence, the abettor shall be punished with imprisonment of any description provided for that offence, for a term which may extend to one-half of the longest term provided for that offence, or with such fine as is provided for the offence, or with both.
21. Illustration (a) says that:
"(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B refuses to accept the bribe. A is punishable under this section".
22. Thus, the provisions of section 116 IPC and Prevention of Corruption Act may come into picture.
23. Thus, it has been contended by the learned AGA that the sections under which charges have to be framed against the accused can only be decided by the trial court when it proceeds to frame charges against the accused and there are sufficient grounds to proceed against the applicant under sections 116 IPC and section 8/12 of Prevention of Corruption Act.
24. Learned AGA has also placed reliance upon section 30 sub-clause (2) of the Prevention of Corruption Act, which says that "Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897, (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken, under or in pursuance of the corresponding provision of this Act".
25. In Sharad Kumar vs. The State of M.P., reported in 2008(4) MPHT 422, it has been laid down that if bribe was offered to a public servant as a reward for showing some favour in discharge of his official function, on refusal of the public servant, to accept bribe, the person-offering bribe can be punished. Considering the provisions of illustration (a) of section 116 of the Code, if established that person offering bribe is refused by public servant, the person offering bribe will be guilty of abetting offence and would be liable to be punished under section 12 of the Act. Section 12 of the Prevention of Corruption Act provides for punishment for abetment of offences defined in section 7 or 11.
26. It is a well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.
27. There is yet another aspect of the matter. An illustration to a section, unlike marginal note, is to be considered as part of the section itself and is to be accepted as being both relevant and valuable for the construction of the section.
28. The Judicial Committee of the Privy Council in Mohd. Syedol Ariffin vs Yeoh OOi Gark, AIR 1916 PC 242, explained the significance to be attached to an illustration appended to a section in the following words:-
" :: 7 ::
Cr. Appeal No.791/1996 "It is the duty of a court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the next. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired."
29. This rule of construction was affirmed by the Apex Court in Shambhu Nath Mehra vs. State of Ajmer (AIR 1956 SC 404) wherein Vivian Bose, J., while referring to illustration (a) to Section 106 of the Indian Evidence Act, 1872, stated the principle in the following terms : -
"We recognise that an illustration does not exhaust the full content of the section which it illustrate but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose exercise due diligence, as to the accused, the facts cannot be said to be especially" within the knowledge of the accused".
30. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482, Cr.P.C. jurisdiction.
31. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.
32. When the words 'rarest of rare cases' are used after the words 'sparingly and with circumspection' while describing the scope of Section 482, those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 I.P.C., but to emphasize that the power under Section 482 Cr.P.C. to quash the F.I.R. or criminal proceedings should be used sparingly and with circumspection.
33. In view of the facts and circumstances of the case, the prayer for quashing the proceedings of the aforesaid case is refused.
34. Accordingly, the application is rejected.
Order Date :- 19.2.2015 Sazia