Allahabad High Court
Sanjeev Kumar Sahu vs State Of U.P. And Another on 11 January, 2021
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 77 Case :- APPLICATION U/S 482 No. - 19104 of 2020 Applicant :- Sanjeev Kumar Sahu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shridhar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present application has been filed for quashing the charge-sheet dated 20.6.2020 in Criminal Case No. 3610 of 2020 (State of Uttar Pradesh vs. Sanjeev Kumar Sahu) arising out of Case Crime No. 0064 of 2020 under sections 419, 420, 332, 353 IPC and Section 10 of Examination Act, 1982, Police Station Saini, District Kaushambi.
The contention of counsel for the applicant is that an FIR was registered against the applicant under sections 419, 420, 332, 353 IPC and Section 10 of Examination Act, 1982. In short, the FIR was registered on account of violations of the alleged provision of the Examination Act, 1982. The FIR was investigated and a charge-sheet was also filed once again under sections 419, 420, 332, 353 IPC and Section 10 of Examination Act, 1982. The court in question took cognizance of the said offence and issued summons.
The neat submission of counsel for the applicant is that there is no 'Act' by the name of 'Examination Act, 1982' and thus the proceedings, instituted and being continued against the applicant, are wholly bad in law and liable to be quashed. He further places reliance upon the judgement of this Court in the case of Naval Dey Bharti vs. State of U.P. and others, MANU/UP/1831/2019 whereby this Court seized of a matter arising out of same Act expressed its amazement in the manner in which proceedings were instituted and were being continued under the Examination Act 1982 whereas no such Act is ever been enacted. The Court proceeded to hold as under:
"This court feels that on account of false prosecution and tainted investigation, the applicant has suffered a lot, which has changed her career, as her ambition to achieve height in her career has been spoiled by the opposite party no. 2 and 3 as well as other persons associated with them in this matter by not discharging their duty in true sense.
From perusal of impugned summoning order dated 14.06.2017, I find that the imugned order dated 14.06.2017 has been passed by the Judicial Magistrate Court no. 1 Allahabad, on an already printed proforma order by manually filling up gaps in a very casual manner without applying his judicial mind. Certified copy of order dated 14.06.2016 is on record, appended as annexure no. 17 to the application. The blanks on the printed proforma order appears to have been filed by the court employee and the Magistrate thereafter put his initial. It is very unfortunate that Judicial order of taking cognizance and summoning the accused has been passed by the Judicial Magistrate Court No.1 Allahabad by manually filing up blanks on already printed order. It appears that the Magistrate concerned did not bother to go through the allegation made against the accused and ascertain as to what offence prima facie being made out against the accused. The aforesaid summoning order dated 14.06.2016 is reproduced herein below :-
U;k;ky; U;kf;d eftLVªsV] d{kk la[;k I bykgkcknA okn la0 &396@17 ljdkj cuke ukoYns Hkkjrh /kkjk 3@10 ifj{kk vf/k Fkkuk dhMxat ftyk bykgkcknA v0la0& 337@16 14@6@17 vkt vkjksi i= izkIr gqvkA vkjksi i= o dsl Mk;jh o vU; iizii=ksa ds voykkskdu ds izFke n`"Vk;k vfHk;qDr }kjk vijk/k dk dkfjr gksuk izrhr gksrk gSA laKku fy;k x;k ntZ jftLVj gksA udys rS;kj gSA vfHk;qDr dks lEeu fnukad 24@8@17 ds fy;s tkjh gksA
-----------------------------------
ts0,e0 d{k la0 bykgkcknA On the said facts and circumstances, this Court feels that the manner, in which impugned summoning order dated 14.06.2017 has been passed by the Magistrate concerned, is not liable to be approved. The judicial order cannot be allowed to be passed in a mechanical manner. Such tendency must be deprecated and cannot be allowed to perpetuate. It is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the police report. Without applying judicial mind and without even looking at the facts of the case mechanically issuing process only on the basis of operative portion of the charge sheet, does not amount to application of mind by the Magistrate. In this case the magistrate concerned also did not take pain even to examine whether the Examination Act 1982 is in existence or not.
On the aforesaid discussion, this Court is of the view that criminal proceedings against the applicant by opposite party No. 2 is nothing but a clear abuse of process of Court. Impugned summoning order dated 14.06.2017 is also not sustainable, as Section 3/10 Examination Act 1982 is not in existence, hence no offence is made out against the applicant. This Court under the facts and circumstances of this case, feels that it is the solemn duty of the Court to protect apparently an innocent person, not to be subjected to such frivolous prosecution on the basis of wholly untenable allegations and complaint, if criminal proceeding is allowed to go on, the same will tantamount to causing grave miscarriage of justice, therefore in order to secure the ends of justice, the impugned criminal proceeding against the applicant is liable to be quashed.
In the present case the court cannot shut its eyes to the flagrant violation of fundamental rights of the applicant guaranteed under Article 21 of The Constitution of India which provides for protection of life and personal liberty of the citizens.
It is well settled by the Apex Court in Khatri and others Vs. State of Bihar and others 1981 (1) SCC 627, Mrs. Veena Sethi Vs. State of Bihar and others AIR 1983 SC 339, Rudal Shah Vs. State of Bihar and another AIR 1983 SC 1086, Bhim Singh Vs. State of Jammu Kashmir and others 1985 (4) SCC 677, Sant Bir Vs. State of Bihar AIR 1982 SC 1470 that Constitutional Courts can award compensation for violation of fundamental rights guaranteed under Article 21 of India. The Apex Court in case of Babubhai Vs. State of Gujarat (supra) has ruled that fair investigation is also a part of constitutional rights guaranteed under Article 20 and 21 of the Constitution of India. The expression "miscarriage of justice" or "failure of justice", include , violation of law or procedure of such a nature that if it was to be corrected the procedure could not stand. Neglect of principles of law or procedure, a glaring mistake in the procedure or manifest error on a point of law also amounts to "miscarriage of justice".
The present case is case of "miscarriage of justice" as it neither followed the "substantive due process doctrine" nor the "procedural due process doctrine", which has led to clear violation of rights of the applicant guaranteed under Article 21 of the constitution of India. The damages which the applicant is likely to claim have to be founded on the pecuniary and non pecuniary losses suffered to the applicant. In the present case, however, there being no relief and no pleadings to establish the claim for the damages, this court deems it appropriate to permit the applicant to avail of the Constitutional remedies for claiming the damages to which the applicant may be entitled on the basis of the pleadings to be substantiated by evidence , thus, this court deems it proper to permit the applicant to initiate appropriate legal proceedings for claiming the damages, if so advised, in proper legal proceedings."
The Court proceeded to quash the proceedings and imposed very heavy cost.
Despite the said clear judgement, the prosecutions are being continued under the Examination Act and is clear from the perusal of the facts of the present case.
Considering and following judgement in the of case of Naval Dey Bharti (supra), the charge-sheet dated 20.6.2020 is hereby quashed.
The application u/s 482 Cr.P.C. is disposed off.
Order Date :- 11.1.2021 Puspendra