Allahabad High Court
Sukhveer Singh & Ors. vs The State Of U.P. & Anr. on 17 October, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 14 Case :- U/S 482/378/407 No. - 7336 of 2019 Applicant :- Sukhveer Singh & Ors. Opposite Party :- The State Of U.P. & Anr. Counsel for Applicant :- Mohammad Aslam Beg Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
1. The application in hand is moved under section 482 of Criminal procedure code, 1973 by learned counsel Sri Mohammad Aslam Beg on behalf of applicants accused involved in Case crime no.867/2016 under Sections 147, 323 I.P.C. & Section 3(1)(10) SC/ST Act, Police Station - Kakori, District Lucknow. The applicant seeks relief, praying to, "quash impugned summoning order dated 17.01.2017, and charge sheet dated 06.12.2016 bearing charge sheet No.90 of 2016 in S.T No.22 of 2017 case crime No.867 of 2016 Under Section 147, 323 IPC and Section 3(1)(X) SC/ST Act Police Station Kakori District Lucknow State of U.P. Versus Sukhveer Singh and others passed by Special Judge (SC/ST Act) District-Lucknow contained in Annexure No.1 and 2 to this petition respectively."
2. Briefly stating, the prosecution story as revealed from the FIR is that the informants, Chandrika, Jitendra, Mahesh, Chandrani and Kiran belonging to the class of people falling under the scheduled castes allege that an old Naala (water channel) was passing nearby their agricultural field becomes blocked while making the Agra Expressway.
3. The fact of obstruction in the water channel was complained by the informants to the higher officials. After the local inspection on the direction of officers, the Nala was dig open and obstruction in flow of water was removed. After two days angered there by Sukhveer Singh (present applicant), Ram Singh and Rajkumar, Shivbaran, Alok, Satish Kumar Singh came along with their companions and began to ran beat the informant in their field and made them badly injured.
4. Heard the learned counsel for the applicant and the Learned AGA appearing on behalf of the state opposite parties. Perused the materials available on record.
5. The scope and circumstances for exercising the extraordinary power by the court under Section 482 Cr.P.C. is explained in para 23 and 24 of judgment of Hon'ble Apex Court in the case of Inder Mohan Goswami Vs. State of U.P. reported in 2012 SCC 1, which reads as under:-
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
6. The grounds set forth in application, upon which the relief to quash the charge-sheet and summoning order issued by Magistrate as pleaded by the applicants are:-
(a) because impugned summoning order dated 17.01.2017 is illegal and arbitrary and against provision of law.
(b) because impugned summoning order dated 17.01.2017 passed by learned court below is not only against provisions of law but also against the principle of natural justice.
(c) Because on 17.01.2017 learned court below passed summoning order in illegal and arbitrary manner without considering facts and circumstances of the case and without considering evidence on record.
(d) because police with collusion of the opposite party no.2 submitted charge sheet against the petitioners without collecting any material and evidence, in case crime No.867 of 2016 under Section 147, 323 IPC and Section 3(1)(10) SC/ST Act, Police Station Kakori, District Lucknow.
7. The offences are registered on the basis of allegations made in the FIR against the applicant under Sections 147 and 323 I.P.C. along with Section 3(1)(X) SC/ST Act (as applicable after amendment with effect from 26.1.2016) on bare reading of the aforesaid section of the Scheduled Casts & Scheduled Tribes (Prevention of Atrocities) Act provides that, "whoever not being the member of SC/ST castes corrupts or fouls the water of any spring reservoir or any other source ordinarily used by members of scheduled caste and schedule tribes SC or ST so as to render it less fit for the purpose of which it is ordinarily used. From the allegations in the FIR, it is very clear that the allegations made therein if on face value they are taken to be true in their intracity, they disclose the commission of offence from which the accused applicant is slapped.
8. This is pertinent to mention here that charge sheet after due investigation has been filed in the court, the court has taken cognizance and consequent thereupon issued summons to the applicant accused vide order dated 17.1.2017.
9. The first issue with regard to the relief as prayed under Section 482 Cr.P.C. to quash the charge sheet and summoning order, is whether they are illegal, being arbitrary and against provisions of Law. On bare reading of the allegations made in the FIR the allegations of maar-peet having been beaten up by the accused applicant who are members of upper caste with victim (informants) belonging to a caste falling under Scheduled Caste are sufficient to constitute the offence prima facie, as the applicant accused jointly attacked with lathi, danda in their field, annoyed by their success in getting the obstruction in the watter channel's flow removed.
10. From the materials placed before the Court it is sufficiently clear that the charge sheet submitted after investigation by the Investigating Officer in aforesaid provisions before the Court and the court has taken cognizance of the offences labelled therein against the accused persons. Law requires the magistrate while when charge sheet is submitted before the court it has to satisfy itself, from the allegations in FIR and the evidence collected by the Investigating Officer during investigation, the allegations in FIR and evidence supporting the allegation are fulfilling the ingredients of the offences slapped against the accused. On the basis of those he has reason to believe that accused might have commited such offences triable by the court.
11. After its prima facie satisfaction, the court proceeds further and when the court intends to proceed further for trial of the accused as to the commission of offence, this is called 'cognizance' taken by the court of the offences. Consequent thereupon the court issue summons to the applicant accused for trial.
12. In putting the case that it attracts the exercise of the extra ordinary power under section 482 Cr.P.C. for the reason of abuse of the process by the informant and the police, the investigating officer is alleged to have been in collusion with the informants. It is further alleged that the Investigation officer, without collecting material evidences he submitted the charge sheet, falsely implicating the applicant and other accused persons. Though the vehemence of argument is upon non collection of evidence by the police during investigation but the learned counsel could neither carved out from the materials placed on record by him nor from the contents of charge sheet, which evidence apart from the evidence of injured witnesses in an incident of beating is needed. Materials with regard to injuries sustained by them is available in charge sheet. Facts of obstruction in the flow of water channel complained to the high officials and police officers, redressal of the grievance by the officers by removing the obstruction to restore the water channel to the field and ultimately annoyed thereby incident of beating to the informants by the accused, all are placed in charge sheet with supporting evidence. The police during investigation has to be collect material which it found sufficient to emanate them to believe that if they even on their face value if taken without proof, prima facie sufficient to believe that accused has committed the offence from which he is charged in the First Information Report. In support of the ground assailing the validity and legality of the charge-sheet the applicant has neither pleaded nor argued carving out from the materials on record, the illustration as to the irregularity or illegality if any committed by the investigating officer, due to which the charge sheet would become illegal document.
13. Another ground pleaded to hold the illegality of charge-sheet is the alleged 'collusion'. 'Collusion' literally means and is said to be a "secret argument especially to do something dishonest" in order to deceive or cheat some one else. The plea of Collusion is a defence against the offence, the accused is charged with and it can be proved adducing cogent and material evidence in trial.
14. Apart the bald statement of the fact of Collusion it is also not explained in pleading how it can be inferred from the attending circumstances that the charge sheet is arbitrary and illegally filed due to collision with informant. In absence of pleading to this effect it seemed to have been alleged loosely without any substance.
15. Seeking the relief of quashing of the summoning order dated 17.1.2019, applicant has assailed the 'cognizance' of the offences taken by the court on perusual of charge-sheet blaming that it is against provisions of law and principle of natural justice, therefore is illegal and arbitrary. Though, 'the law', which is said to be violated in taking cognizance is neither pleaded nor referred in the argument.
16. The next challenge to the cognizance of offence dated 17.1.2019 is that the order of summoning to the accused is violative of 'principal of natural justice'. Impliedly by referring the principal of natural justice the applicant accused opposes the summoning order on the ground that prior to issuance of summons he is not given opportunity to be heard. This seems to be suffering from a misconception of law. The Code of Criminal Procedure prescribes that after due investigation without committing any unnecessary delay, investigating officer is to submit report before the court under Section 173 before the court competent to take cognizance of the offence on a police report stating there in-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."
17. The manner and procedure prescribed for submission of charge-sheet before the court under Section 173 Cr.P.C. does not requires to provide copy of the charge sheet to the accused, prior to the application of mind by the magistrate to take judicial notice of the materials available in the charge-sheet whether or not there are reason to believe on the basis their of that any offence is committed by the accused. This is established principle of law and procedure
18. The law is settled by the courts from time and against that no violence can be done with the language of the provisions of procedural law, either by subtracting any word included by the legislative body in the statute nor to add any word which does not exist in the provision. Therefore question of violation of principle of natural justice on the ground that prior to issuance of summon or taking cognizance of offence the accused was not heard, does not stand before the law as prescribed there in the criminal procedure code.
19. It would not be out of context to have a discussion upon the word 'Cognizance'. The word 'cognizance' is not defined anywhere in the code. Virtually taking cognizance does not involve any formal action of any kind. It occurs as soon as the magistrate applies his mind to the suspected commission of an offence. It is prior to the commencement of preceding and is an indispensable requisite for holding a valid trial. Cognizance is taken of an offence and not of an accused. Section 190 of the Cr.P.C. provides about the application of judicial mind to the allegations in the complaints or those averred in the FIR and materials collected by investigating officer submitted in the charge sheet that offence is constituted. In Taking cognizance the magistrate considers wheather there is sufficient ground for proceeding further for trial. Therefore cognizance is a consideration over the fact running into the mind of magistrate so as to form opinion within a spur of moment to proceed further for trial.
20. Hon'ble Supreme Court has explained the word 'cognizance' in the case of Sanjay Singh Ram Rao Chavan Vs Dattatray Gulab Rao Phalke reported in (2015) 3 SCC 126, the relevant portion is quoted hereunder:-
"The expression ''cognizance' has not been defined in the code. But the word ''cognizance' is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means ''become aware of' and when used with reference to a court or a Judge, it connotes ''to take notice of judicially."
21. So far as the issuance of summoning order dated is concerned, virtually this amounts, providing an opportunity to the accused to appear before the court so as to enable him to put his defence against the allegations in complaint/FIR and the charge-sheet submitted by the police. If there is sufficient grounds for proceeding on the chargesheet/complaint then the magistrate can issued a process under section 204 Cr.P.C. pusuant to taking such cognizance.
22. The Magistrate has discretion to be exercised judicially in determining whether there is prima facie case to take cognizance. At this stage of cognizance, court is concerned with the involvement of the person and not of his innocence therefore any version in defence of the accused is not to be seen. Question of affording opportunity while taking cognizance for the accused to put his defence does not arise. Thus, the allegation as to the summoning order dated 17.1.2019 being violative of principle of natural justice is of no force and cannot be taken into consideration for quashing the same the reason of it's being illegal.
23. In a recent case decided by Hon'ble Apex Court in the case of Md. Alauddin Khan Vs. State of Bihar & Ors. reported in AIR 2019 SC 1910 where the accused were labelled with the allegation of having committed offence punishable under Sections 323, 379 read with section 34 IPC. On submission of charge-sheet the magistrate by holding that a prima facie case was made out against accused on the basis of allegations made in the complaint. The question was raised there that whether a judicial magistrate was right in holding that a prima facie case is made out against the accused person for commission of offence punishable under Sections 323, 379 read with section 34 IPC, so as to call upon them to face a trial on merit. In the circumstances the High Court held that no prima facie case has been made out against the accused. Hon'ble Supreme Court in its para 15, 17 and 19 has held as under:-
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.
19. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the order of the Judicial Magistrate dated 13.02.2013 is restored because it records a finding that a prima facie case for taking cognizance of the complaint is made out."
24. In another case before The Hon'ble Supreme Court, Devendra Prasad Singh Vs. State of Bihar and Others decided recently on 2.4.2019 reported in 2019 4 SCC 351, the facts were that the High Court allowed the application filed by accused under section 482 of the criminal Procedure Code 1973 and quashed the order dated 21.1.2014 passed by the Judicial Magistrate first class in complaint case by which the Magistrate had taken cognizance of the offence coming out from the allegations made in the complaint against the accused for commission of offence under Sections 323, 341, 379 and 504 IPC. The question was again before the Honorable Supreme Court that whether the High Court was justified in quashing the complaint holding that there was no prima facie case made out against the accused for issuance of process of summon to him for commission of offence punishable under Sections 323, 341, 379 and 504 IPC. In para 11 and 12, Hon'ble Supreme Court has held as under:
"11. In our view, in order to attract the rigor of Section 197 of the Cr.P.C., it is necessary that the offence alleged against a Government Officer must have some nexus or/and relation with the discharge of his official duties as a Government Officer. In this case, we do not find it to be so.
12. So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings."
25. In view of the aforesaid discussions, considering all the facts and materials placed on record by the applicant accused no prima facie case is made out with regard to abuse of process on the part of informant or the police. Further, it is also not convincing from the facts that quashing of charge sheet and summons is merely an effort by the applicant to stiffle a legitimate prosecution against him.
26. In para 102 of the State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604, Hon'ble Supreme Court has illustrated several circumstances wherein the extraordinary power under section 482 Cr.P.C. maybe exercised for the purpose of preventing an abuse of process or to secure the ends of Justice or to enforce the order of the court. Illustrations given in para 102 quoted hereunder are treated as guidelines for the purpose of exercising of powers under section 482 CRPC:-
"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 F.I.R. 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) 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."
27. The applicants-accused have no case falling under any of the categories of cases given as illustrative guidelines for the exercise of jurisdiction under Section 482 Cr.P.C. by Hon'ble Apex Court in the above cited judgement State of Haryana Vs. Bhajan Lal (supra).
28. In para 27 of the Inder Mohan Goswami (Supra), Hon'ble Supreme Court has held as under:-
"The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
29. In Umesh Kumar Vs. State of Andhra Pradesh reported in AIR 2014 SC 1106, Hon'ble the Apex Court has held that criminal prosecution if otherwise justifiable and possess upon adequate evidence does not become vitiated on account of malafide aur political mandata of First Information Report or complaint. In para 12 of the aforesaid judgement the Hon'ble Supreme Court has held that once criminal law is put in motion and after investigation the charge sheet is filed, it requires scrutiny in the court of law only.
30. The applicant accused has itself placed the order sheet of the court below from the date of summoning order dated 17.01.2017 to 18.07.2019 in Sessions Trial No.22/2017 running before the Special Judge, SC/ST Act, Lucknow. The order sheet on reading cumulatively reveals that since date of summoning the process is being repeated for compliance and still the accused applicant instead of appearing before the court despite knowledge of the summoning order preferred to come to invoke the extraordinary power of the High Court for quashing of the charge sheet and summoning order.
31. The extraordinary power of the court should be exercised sparingly where the applicant has established prima facie case with regard to abuse of process. The materials placed by him do not impulse necessity to quash the charge sheet and summoning order.
32. Therefore, the application under section 482 Cr.P.C. moved with the relief sought therein for quashment of summoning order dated 17.1.2017 and charges sheet arisen out of case crime No.867 of 2016 Under Section 147, 323 IPC and Section 3(1)(X) SC/ST Act Police Station Kakori District Lucknow, for the reasons having no merit and is liable to be rejected and accordingly dismissed.
Order Date :- 17.10.2019 Gaurav/-