Allahabad High Court
T.N.Misra (Triloki Nath Mishra) & Ors ... vs State Of U.P. & Ors. on 16 April, 2013
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
AFR
High Court of judicature at Allahabad,
Lucknow Bench, Lucknow
District- Lucknow
Criminal Miscellaneous No. - 4016 of 2008
(U/s 482 Cr.P.C.)
1. T.N. Misra (Triloki Nath Misra), aged about 77 years, S/o Late Colonel S.N. Misra, R/o C 234, Sectior "A" Mahanagar, Lucknow, presently functioning as Manager, Committee of Management, Bappa Shri Narayan Vocational Post Graduate College, Lucknow Lucknow.
2. Dr. Brij Kishore Dwivedi, aged about 61 years, S/o Late Vishwambhar Nath Dwivedi, R/o C-233, Rajaji Puram, Lucknow.
3. Chhote Lal, aged about 48 years, S/o Late Ganpat, R/o 1 Staff Quarters, Bappa Shri Narayan Vocational Post Graduate College Colony, Lucknow.
..................... Applicants/Petitioners
Vs.
1. State of U.P.
2. Anil Kumar Yadav, S/o Visheshwar (Vireshwar) Lal Yadav, R/o Staff Quarter, Bappa Shri Narayan Vocational Post Graduate College, Lucknow.
(Allegedly R/o House No.9/5-B, Shri Jai Narayan Road, Near K.K.C College, Police Station Husainganj, Lucknow.
......... Complainant/Opposite Parties
Petitioners Counsel :-Senior Advocate Dr.L.P. Mishra assisted by Sri Ashish Mishra.
Respondents Counsel :- Sri Additional Govt.Advocate, Sri Anil Kumar Yadav, Sri Bhasker Prasad Pandey.
Hon'ble Vishnu Chandra Gupta,J.
1. Challenge in this petition under Section 482 Code of Criminal Procedure (for short the"CrPC") is the order dated 24.09.2008 (Annexure-1 to this petition) passed by the Additional Chief Judicial Magistrate-II, Lucknow taking cognizance against the petitioners under Sections 323, 380, 504, 506 IPC in complaint case No. 74 of 2008 filed by opposite party No.2 .
2. The facts, in brief, emerged out from the pleadings of petitioners are that petitioner No.1 Triloki Nath Misra was the Manager of Management Committee of Bappa Shri Narayan Vocational Post Graduate College, Lucknow (for short 'College'). Petitioner No.2, Dr. Brij Kishore Dwivedi was the Principal of the aforesaid College. Petitioner No.3 Chhote Lal was a Class III employee of the aforesaid College.
3. One Visheshwar Lal Yadav,[for short 'VLY'] (mention as Vireshwar Lal Yadav in petition) is the father of Anil Kumar Yadav, O.P. No.2. The aforesaid Anil Kumar Yadav is the complainant/opposite party No. 2. Sri VLY was a Class VI employee in the aforesaid College,was allotted a staff quarter within the College premises for his residence being employee of college. The aforesaid College was affiliated with Lucknow University. Sri VLY unauthorisedly constructed a shop by breaking boundary wall of the College in his residential accommodation provided to him by the College. The shop was constructed in between 17th July, 1995 to 19th July, 1995 and thus VLY converted the residential premises for commercial use. Sri VLY was directed on 19.08.1995 by the College administration to remove the aforesaid construction of shop and keep the premises in original shape. This written direction was communicated to VLY. When direction dated 2.8.1995 (Annexure No.2) was not complied by VLY, a FIR was lodged against VLY on 9.8.1995 (Annexure No.3) in police station Husainganj, Lucknow under the provision of Prevention of Dissipation of Assets Act, 1974 for damaging and misusing the property of an educational institution for his own and also under Section 448 IPC, having case crime No. 328 of 1995. VLY was arrested and bailed out in this case. A departmental inquiry was also initiated against VLY and he was charge-sheeted on 21.08.1995 (Annexure No.4). The inquiry was concluded in view of provision of Section 35.01 of statute of Lucknow University by the Inquiry Officer. VLY found guilty and charges were found proved against VLY in inquiry report dated 09.03.1998 (Annexure No.5). In regard to making alteration in residential accommodation and illegal construction of shop, the punishment of dismissal from service was proposed by the competent authority against VLY. Thereafter proposal for punishment was sent on 26.08.1998 to District Inspector of School, Lucknow (for short 'DIOS') for its approval in accordance with provision of section 24.03 of the statute. The DIOS disapproved the proposal of dismissal of VLY by its order dated 13.6.2000 (Annexure No.6). However, DIOS himself recorded a positive finding in its order dated 13.06.2000 that VLY has constructed a shop by breaking the boundary wall of the quarter. An appeal has been preferred by the Management of the College against the order of DIOS, which was disposed of on 15.03.2002 (Annexure No.7) by the Deputy Director of Education, 6th Region, Lucknow(For short 'DyDE') with the observation that VLY got long service to his credits, therefore, the punishment of dismissal from service is dis-proportionate. The DyDE also recorded finding that VLY has constructed a shop in college premises by altering the residential accommodation provided to him during the course of his employment. DyDE directed VLY for restoring property of the college to its original shape within 15 days and also to vacate the accommodation within one month from the date of passing of the aforesaid order. Despite the orders of DyDE, VLY did not comply with the aforesaid order. The college administration aggrieved by the appellate order as well as the order of the DIOS filed a writ petition No. 4868(SS) of 2002 before this Court impleading VLY as opposite party No.5. The said writ petition is still pending. However, no counter affidavit has been filed in the aforesaid writ petition by the opposite parties.
4. On 03.03.1997 at 5 p.m. when Manager of College was entering in college premises, he was wrongfully restrained by VLY and also extended threats to his life. A FIR (Annexure No.10) of this incident was also lodged on the same day at case crime No. 7 of 1997, under Section 341, 506 IPC. The case is still pending against VLY. A departmental inquiry was also initiated for his misconduct shown on 03.03.1997 and VLY was put under suspension vide order dated 06.03.1997 (Annexure No.11). After conducting the inquiry, the inquiry officer submitted its report on 02.11.2003 (Annexure No.12). All the charges levelled against VLY were found proved. The College administration again proposed the punishment for dismissal of VLY and sent it for approval to DIOS vide letter dated 29.11.2003 (Annexure No.13).but no decision has been taken by DIOS on the proposal of the College administration.
5. Due to none action and disapproval of punishment by authorities, VLY became so arrogant that despite of pendency of two criminal cases against him and order to vacate the premises his criminal activity remained continue. On 10.04.2004, he forcibly entered into adjoining room to his quarter in a highly illegal manner by breaking intervening wall. This room was vacated by one Ram Tahal, an employee of the college, after his retirement from service. The college administration again issued notice on 12.04.2004 (Annexure No.14) to VLY directing him to vacate and hand over possession of the room of Ram Tahal by notice dated 12.04.2004, but he did not comply with the notice. A FIR was also lodged against VLY (Annexure No.15). Another departmental inquiry was also initiated against VLY. Charge sheet dated 12.05.2004 (Annexure No.16) was served upon him. After submission of reply by VLY(Annexure No.17).
6. Activities of VLY could not stop here and this time the opposite party No.2 Anil Kumar Yadav, the son of VLY gave political colour to the problem, converted the premises in question as office of Samajwadi Party by installing a board. Such type of activities are wholly illegal in any college premises by any employee or his family member in the residential premises allotted to the employee during course of his employment.
7. The opposite party No.2 was having relations with high ups of Samajwadi Party. He intervened in the matter by writing letter on 21.7.2004 to the then Chief Minister of the State Sri Mulayam Singh Yadav (Annexure No.18). VLY also wrote a letter to party leader of Samajwadi Party (Annexure No.19). Due to pressure of High ups of ruling party (Samjwadi Party) and on the basis of endorsement of Sri Jag Jeevan Prasad ,OSD to Chief Minister on the letter of O.P.No.2, the Regional Higher Education Officer, Lucknow directed the college administration by his letter dated 15.11.2003 (Annexure No.20) to show cause for not reinstating and making payment his entire salary of VLY inspite of favourable orders in his favour. It was further informed by this letter that an inquiry has also been initiated under the orders of Director, Higher Education. It is important to note that the Dy Director(Sec. Ed.) on 22.10.2003 wrote a letter to the Regional Higher Education Officer, Lucknow to initiate action for payment of salary of VLY at his own end under the instruction issued by Jag Jeevan Prasad dated 16.9.2003 (attached with Annexure No.20). The College management gave reply to show cause notice on 16.12.2003 (Annexure No.21) to the Regional Higher Education Officer, Lucknow. The Regional Higher Education Officer, Lucknow vide its letter dated 10.08.2004 (Annexure No.22) directed petitioner No.2, the Principal, under the instructions received from Government to immediate reinstate VLY and to pay all his dues and also threatened to stop salary of principal in case of non compliance of the order. The college administration thus, compelled to take legal protection by filing writ petition No. 5014 (SS) of 2004 before this Court. This Court by order dated 31.08.2004 (Annexure No.23) stayed the operation of the order issued by Regional Education Higher Officer, Lucknow dated 10.08.2004. In the meantime, VLY was also retired from service on 31st August, 2008. Even after the retirement, VLY did not vacate the premises and continued to occupy illegally the staff quarter and still the residential accommodation is being illegally used by him and opposite party No.2.
8. After retirement of VLY the opposite party No.2 take led in this matter in place of his father. He instituted some proceedings against the college authority before Information Commissioner. Vide order dated 19.06.2008 the Information Commissioner issued certain directions against the college authorities. The College Administration challenged the order of Information Commissioner in writ petition No. 8603 of 2008 and this Court vide its order dated 23.09.2008 (Annexure No.25) stayed the operation of the orders under challenge passed by Regional Higher Education Officer and the Information Commissioner.
9. As the opposite party No.2 was damaging the reputation of the college from every corner and also defaming the colleges, a criminal case of defamation under Section 500 IPC has been filed against the opposite party No.2 Anil Kumar Yadav which was numbered as Criminal Case No. 10706 of 2006 and it is pending in the court of Additional Chief Judicial Magistrate, Lucknow.
10. The opposite party No.2 as a counter blast,on 26.06.2008 lodged a false, frivolous and malicious complaint (Annexure No.26) against the petitioners. This frivolous and false case was entertained after recording the statement of complainant Anil Kumar Yadav under Sections 200 CrPC (Annexure-27) and under section 202 CrPC , the statement of witnesses Anjani Prakash , Manish Tripathi and Prem Chandra. The certified copies of their statements were annexed as part of Annexure No.27. Thereafter the Court took cognizance against the petitioners by the impugned order.
11. The complaint on the basis of which the petitioners were summoned filed with allegations that complainant is Vice President of Yuva-Jan Sabha which is an unit of Samajwadi Party of U.P. When he was out of Lucknow in connection with party work on 27.2.08, petitioner No.1 B.K. Dwivedi, the principal, and petitioner No.3 Chhote Lal, a class III employee of college, both came along with five persons of labour at about 1.35 P.M. He was sent by Sri. T.N. Mishra the petitioner No.1 to the residence of complainant. The labour with hammer and belcha dismental the flex board installed by the complainant on the roof to the house and they after removing the same took away the flex board with them. It was further alleged that on the flex board photograph of the then Chief Minister Sri Mulayam Singh Yadav, Member of Parliament Sri Akhilesh Singh Yadav and complainant were printed. The board was costing of Rs.6000/-. On the next day, VLY went to take back the flex board from petitioner No.2. The petitioner no.2 gave a false assurance to return the board but the petitioners did not return the same. Then opposite party No.2 on 01.03.2008 at about 12.30 p.m. went to take back his flex board from the petitioners. He saw there that all the petitioners getting the board dismantled and they were crushing the flex board by their own feet on which the photos of the then Chief Minister Sri Mulayam Singh Yadav, Akhilesh Yadav and the complainant were printed. They were also tearing the same and hurling abuses for them. The complainant asked to stop the mischief, but the petitioner did not care and surrounded the complainant with the help of their men. He was beaten by kicks and fits. In this process petitioner No.3 Chotey Lal took out his purse from his pocket in which 1000/- rupees and other necessary documents were kept which he did not return to the complainant and instead of returning the purse he slapped twice on the cheek of the complainant. Petitioner No.2 extended threats to life and warned O.P.No.2 if he comes again in the college campus, he will be buried. Complainant gave a notice dated 06.06.2008 of defamation for defaming the then Chief Minister Sri Mulayam Singh Yadav and Member of Parliament Sri Akhilesh Yadav and asked the petitioners to tender unconditional apology for their act. In case of failure a legal action may be taken. When the petitioners did not reply the notice nor apologies publically for their acts, he filed this complaint under Section 109, 114, 323, 379, 380, 500, 504, 506 and 120B IPC.
12. One Sanjeev Kumar Tripathi and Prem Chandra, the witnesses of complaint, are said to be close friends of the opposite party No.2., filed a civil suit against the college administration having original suit No. 119 of 2008 claiming the shop under the tenancy and owned by of the college, as its owner. In this suit, they also moved ad interim injunction application which was dismissed by the court vide its order dated 19.05.2008 (Annexure No.24) giving a positive finding that plaintiffs are not the owner of the premises on which they are in possession.
13. The O.P. No.2 Anil Kumar Yadav filed Counter affidavit. From perusal of the counter affidavit filed on behalf of the opposite party No.2, it is crystal clear that he is still in occupation of the premises in the college campus which has been allotted during the course of employment to his father VLY. The allegation contained in para 5 of the counter affidavit reveals that VLY was a class IV employee of the college but it was alleged that Sri T.N. Mishra petitioner No.1 got his personal work done from VLY after school hours. VLY on persuasion of T.N. Mishra the petitioner No.1, purchased a she buffalo on finance taken from Bank. VLY used to give 5 litres milk daily to T.N. Mishra on the assurance of giving the price of the milk regularly. When T.N. Mishra did not pay price of the milk , the father of O.P. No.2 came in trouble and could not pay the installments of bank loan. The persistent demand for the milk price made by VLY, T.N.Mishra became annoyed with VLY and on his instance the school authorities issued frivolous notices in order to harass and humiliate VLY and initiated false proceedings with the help of petitioner Nos.2 and 3 against VLY.
14. The O.P.No.4 also challenged the ownership of the property in question alleging it to be property of Nagar Nigam and not of the College. It was further submitted that when the father of the opposite party No.2 VLY was not reinstated despite orders passed by the authorities in his favour, he took recourse of law against the college by moving the State authorities. It was also stated that so far as the allegations made in complaint are concerned, the medical examination could not be done because the police did not lodge the FIR. There is eye witness account of this incident. However civil litigation in between the college and the witness has not been denied. It was further submitted that the petitioners have effective and efficacious alternative remedy under Section 397 R/W 401 CrPC and, as such, the petition is not maintainable and is liable to be dismissed.
15. In the rejoinder affidavit, petitioners reiterated the allegation of petition and file photographs of the premises of which no rebuttal has been brought on record by O.P. No.2.
16. I have heard the Senior Advocate Sri L.P. Mishra assisted by Sri Ashish Misra Advocate appearing on behalf of the petitioners and Sri R.K. Diwedi, learned AGA. In spite of sufficient notice and filing of the counter affidavit, none appeared on behalf of the opposite party No.2.
17. The learned counsel appearing on behalf of the petitioners has submitted that this is a fittest case in which this Court ought to have exercised the inherent powers conferred under Section 482 Cr.P.C. by quashing the criminal prosecution launched against the petitioners by the opposite party No.2. It is also contended that this prosecution launched against the petitioners is vexatious and also an outcome of the legal action taken against the father of the opposite party No.2 for their illegal acts and deeds and to put pressure upon the petitioners to withdraw all their actions which have been taken against the father of the opposite party No.2. He further submitted that summoning a person in a criminal case to face the trial of a criminal offence is a serious matter. The petitioners were/are discharging the function in accordance with law. They are reputed person of the society and running a degree college affiliated with renowned university know as Lucknow University and if this prosecution is allowed to continue against the petitioners it would not only malign the position of the petitioners, but also amount to their harassment on vexatious ground. In support of their contentions, he relied upon the following judgments:-
(i) In Maqsood Alam State of Gujrat (2008 (5) SCC 668, the Apex Court held that summoning of accused in a criminal case being a serious matter, the Magistrate should apply his mind while doing so and should not act mechanically and in routine manner.
(ii) In Anjani Kumar Vs. State of Bihar (2008 (5) SCC 258, it has been held that while discharging official duties the appellant raided the medical shop of complainant and recommended for cancellation of his licence. The Apex Court on fact found that the complainant never alleged about the demand of bribe either in his bail application moved before the Court nor at any earlier stage before criminal court in which he was facing criminal trial of charges on the basis of FIR lodged by the appellant and consequently quashed the proceedings for want of prosecution sanction under section 197 Cr.P.C. The Apex Court also recorded the finding that sanction accorded by the District Magistrate under Section 196 Cr.P.C. was without any authority.
(iii) In Indra Mohan Vs State of Uttarakhand and Ors. ,2000(8) SC 251, the Apex Court held that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with ulterior motive to pressurized the accused. In such situation refusal to quash criminal proceedings would be improper.
On strength of these authorities, it has been submitted by the learned counsel for the petitioners that it is a fit case to exercise its inherent powers by this Court under Section 482 Cr.P.C. for advancing of justice and to stop abuse of process of the court.
18. Learned AGA, Sri R.K.Diwedi, submitted that the court should not interfere with the impugned order which is based on evidence recorded under Sections 200 and 202 Cr.P.C. The court at this stage cannot meticulously examine the material on record or to appreciate the evidence and to conclude that no offence is made out. It was further submitted that malicious attitude of the complainant against the petitioners cannot be inferred but it requires to be proved like any other fact and the valid prosecution cannot be quashed on the ground of malice in a petition under Section 482 Cr.P.C. as held in Prakash Singh Badal Vs. State of Punjab AIR 2007 (SC) 1.
19. I have considered the authorities cited at bar and after going through the same, it is necessary to look into the facts of this case in light of contentions put forward by the counsel for the parties.
20. It is well settled proposition of law that observations of a court's judgment cannot be read in isolation from its context as held in Sukhwant Singh Vs. State of Punjab, 1995(32) ACC 488 (SC). There are hardly two cases of identical facts. The slight different in fact may change the whole scenario and in a changed circumstance the applicability of law would also be changed. Hence the judgment of the Apex Court should be considered with a view as to what has been held in peculiar facts and circumstances of the case and what would be ratio propounded therein.
21. In R.P. Kapur v. State of Punjab ,AIR 1960 SC 866 the Supreme Court also summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(a) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.
(b) where the allegations in the first information report or complaint ( c) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
22. The scope of exercise of power under Section 482 CrPC 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) 335). The illustrative categories indicated by this Court are as follows:
"(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 Un-controverted 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 Act concerned, 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 maliciouly instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
23. In G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636, the Apex Court opined in para 8 - :
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
24. In Indian Oil Corporation, M/s. v. M/s. NEPC India Ltd. ,AIR 2006 SC, 2780 the Apex Court while discussing the scope of section 482 to quash the criminal proceedings has held in paragraphs 9 and 10 as follows:-
"9. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana v. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar v. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan v. Vijay Kumar [2001 (8) SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
10. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/ families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
25. The Supreme Court in a recent judgment of Rajiv Thapar V. Madan Lal Kapoor (2013) 3 SCC 330 have discussed the scope of powers of High Court and delineate the the steps to determine the veracity of prayer for quashment raised by accused by invoking the powers vested in High Court under Section 482 Cr.P.C. . The relevant paragraphs 28,29 and 30 are extracted below:-
"28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/ complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/ complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/ complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC, 30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/ complainant; and /or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.step four; whether proceeding with the trial would resuslt in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer of all the steps in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CRPC. Such exercise of power , besides doing justice to the accused, save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
26. This is a peculiar case in which the officers of the State Government on the instruction of political leaders sitting in Government leaving all legal norms of natural justice arbitrarily directed college administration to take back all actions taken against VLY.
27. In (2010) 11 SCC 557: Manohar Lal (Dead) By Lrs. Vs. Ugrasen(Dead) by Lrs. & others, Hon'ble Supreme Court has summarised the law on the point, to quote as under:
"23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy orany appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act."
28. So far as the question of bar on account of alternative remedy in exercise of jurisdiction under Section 482 Cr.P.C. is concerned, it is no doubt true that order taking cognizance under Section 204 Cr.P.C is revisiable under Section 397/401 Cr.P.C. It is pertinent to mention here that the remedy of revision can be availed by the petitioner either before the court of Sessions or before this Court as the jurisdiction to entertain revision is concurrent. Mere availability of the remedy under Section 397 read with section 401 Cr.P.C. shall not create an absolute bar to exercise the jurisdiction under Section 482 Cr.P.C. as held by Honl'ble Supreme Court in Dhariwal Tobacco Product Ltd. Vs. State of Maharashtra ,2009 (2) SCC 370 . It is important to mention here that extra ordinary power to quash the proceeding is vested in the High Court under Section 482 Cr.P.C. The High Court can do it three contingenciesi.i (i) to make such order as may be necessary to give effect to any order passed under the Criminal Procedure Code (ii) to prevent abuse of process of any court (iii) otherwise to secure the ends of justice. Section 482 Cr.P.C. speaks that these power cannot be curtailed only for the reason, that some remedy is available to the petitioner under the provision of the Code. However, efficacious and effective remedy is necessary to consider the question of creating bar in exercise the power conferred under Section 482 Cr.P.C. The scope under Section 397 Cr.P.C. is limited and could be restricted to see the proprietary, legality and correctness of order passed under Section 204 Cr.P.C., but there are certain cases when obviously an order under section 204 Cr.P.C. may not, prima facie, depict any irregularity or illegality in passing the same, but at the same time for the reason shown to the court, it might be come under the category of 'abuse of process of court'. In such situation, only this Court can pass an appropriate order to secure the ends of justice. Therefore, this Court is of the view that in the present case the availability of remedy under Section 397 read with Section 401 Cr.P.C. to challenge the order under Section 204 Cr.P.C. cannot be an absolute bar to exercise the jurisdiction in the light of peculiar facts and circumstances of this case.
29. Every case has to be decided on its own peculiar facts. In this case, the father of complainant was admittedly a class IV employee of the college and being an employee he was permitted to live in the campus of the college in a residential accommodation. As such in view of section 115 of Evidence act, the allotee/licencee or any of his legal representatives, heirs and person claiming through him cannot be permitted to challenge the title of the person on whose instance the allotee/licencee came into occupation over property in question. Admittedly, the father of complainant retired from service on 31st August 2008. His licence comes to an end. He has already been ordered to vacate the premises by DyDE in appeal vide order dated 15.03.2002 (Annexure No.7). This order has never been challenged in any court or before any authority. Thus, neither father of complainant nor any of his family member is authorised to remain in occupation over property in question. The O.P.No.4 was not authorized to install any flex board over the property of college showing to be used as a party office of Samajwadi party.
30. It is also pertinent to mention here that taking illegal advantage of political high ups he managed the officers sitting in Government to pass orders in his father's favour against all legal norms. However, due to orders of this Court passed from time to time the O.P.No.4 or his father could not succeed in their design.
31. So far as the factual matrix is concerned, no offence under section 380 IPC is prima facie made out. If the college administration removes the flex board installed without permission of the college administration over the premises belonging to college, no offence said to have been committed.
32. The present prosecution is the outcome of ill will of O.P.No.4 to put pressure upon the college administration to settle the score by illegal means. This prosecution is clearly an abuse of process of court. This criminal proceeding is manifestly attended with mala fide and 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. The proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice.
33. In the case in hand the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused/petitioners and the material produced is sufficient to reject and over-rule the factual assertions contained in the FIR. The material produced by the petitioners is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations made in FIR as false. Moreover, the material relied upon by the accused/petitioners has not been specifically refuted by O.P.No.4. The material relied upon by the accused/petitioners is such that it cannot be justifiably refuted. If the trial allowed to proceed would result in an abuse of process of the court and would not serve the ends of justice.
34. In view of the above this court is of the firm view that the proceedings pending in pursuance of cognizance taken vide order dated 24.09.2008 upon complaint filed in case no. 74 of 2008 against the petitioners by the court of IInd Additional Chief Judicial Magistrate, Lucknow deserves to be quashed and this petition is liable to be allowed.
35. Consequently, the proceedings of Case No.74 of 2008, Anil Kumar Yadav Vs T.N.Mishra and others, under sections 323, 380, 504 and 506 IPC, Police station Husainganj, Lucknow on the basis of complaint filed by O.P. No.4 against the petitioners and the order of cognizance taken by the Magistrate vide its order dated 24.09.2008 are hereby quashed.
36. Accordingly, this petition is allowed.
(Hon'ble Vishnu Chandra Gupta, J.) Order Date :- 16.04.2013 Ajay