Allahabad High Court
Sukhraj vs State Of U.P. And Another on 2 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 309
Author: Ravi Nath Tilhari
Bench: Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD "A.F.R." Reserved on: 10.11.2020 Delivered on: 02.03.2021 Court No-3 Case :- APPLICATION U/S 482 No. - 12371 of 2020 Applicant :- Sukhraj Opposite Party :- State of U.P. and Another Counsel for Applicant :- Syed Wajid Ali Counsel for Opposite Party :- G.A Hon'ble Ravi Nath Tilhari,J.
1. Heard Shri Wajid Ali, learned counsel for the applicant, Shri Pankaj Saxena, learned A.G.A. for the State and perused the record.
2. This application/petition under Section 482 of the Code of Criminal Procedure 1973 has been filed for quashing the entire proceedings of Misc. Case No. 1064 of 2017, under Section 340 Cr.P.C. pending before the Judicial Magistrate, Sant Kabir Nagar (Abdul Taiyab versus Sukhraj) Police Station-Dudhara, District-Sant Kabir Nagar.
3. The facts of the case as per the petition as also the submission made by learned counsel for the applicant are that one Eklakh Ahmad filed an application under Section 156(3) Cr.P.C. on 30.08.2012, against Mohd. Tayyab @ Abdul Taiyab opposite party no. 2 and others, registered as complaint case no. 1075 of 2013, which, after recording of the statement of the complainant therein under Section 200 Cr.P.C. and of the present applicant as P.W.-1 in that case was rejected in non prosecution under Section 203 Cr.P.C. by order dated 08.08.2017 passed by the Magistrate.
4. The applicant on 17.01.2017 filed an application under Section 156(3) Cr.P.C. in which the Judicial Magistrate Sant Kabir Nagar issued direction to the concerned Police Station to register a first information report against the opposite party no. 2 and in pursuance thereof an F.I.R. in Case Crime No. 1590 of 2017, Police Station-Dhudara, District-Sant Kabir Nagar, under Sections 419, 420 I.P.C., was registered. After investigation a final report was submitted against which, the applicant filed a protest petition upon which the final report was rejected and the Complaint Case No. 19/2018 was registered against the opposite party no. 2.
5. The complaint related to the alleged forged caste certificate dated 31.05.2000 on the basis of which the opposite party no. 2 contested the election of Gram Pradhan of a Gram Panchayat. Later on the Caste Certificate was cancelled by the District Level Caste Scrutiny Committee by order dated 28.12.2018, finding that the opposite party no. 2 did not belong to that caste for which the caste certificate was issued.
6. The opposite party no. 2 filed an application under Section 340 Cr.P.C. on 04.10.2017, against the applicant, which was registered as Misc. Case No. 1064 of 2017 and is pending before the Judicial Magistrate, Sant Kabir Nagar.
7. The application under Section 340 Cr.P.C. has been filed on the averments interalia that the present applicant although was a witness as P.W. 1 in Complaint Case No. 1075/2013, which was dismissed in non-prosecution on 08.08.2017, but without disclosing those facts, the applicant himself filed application under Section 156(3) Cr.P.C. against the opposite party no. 2, and as such action be taken against him.
8. By the impugned order dated 19.07.2019, the Magistrate directed that the application filed by the opposite party no. 2 under Section 340 Cr.P.C. will be decided on merits along with the Complaint Case No. 19/2018 filed by the applicant.
9. Learned counsel for the applicant submits that the application under Section 340 Cr.P.C. has been filed with ill will as the applicant was a witness under Section 202 Cr.P.c. in the Complaint Case No. 1075 of 2013, although no action has been taken by opposite party no. 2 against Iqlaq Ahmad the complainant of Case No. 1075 of 2013. He submits that the Caste Certificate of the opposite party no. 2 having been cancelled by the District Level Caste Scrutiny Committee as forged one, the applicant is not liable to be proceeded against in Case No. 1064 of 2017 under Section 340 Cr.P.C.
10. Learned counsel for the applicant further submits that the Magistrate ought to have decided the application u/s 340 Cr.P.C. at this stage and ought not to have directed for decision on merits with Complaint Case No. 19/2018.
11. Learned A.G.A. submits that by order dated 19.07.2019 only this much has been provided that the application filed by the opposite party no. 2, under Section 340 Cr.P.C. shall be considered on its own merit at the time of disposal of the complaint case filed by the applicant and so long as the Magistrate does not pass order for filing of the complaint against the applicant, the applicant has no right to challenge the proceedings of Misc. Case No. 1064 of 2017. The Magistrate has yet not directed to register complaint against the applicant.
12. Learned A.G.A. further submits that considering the stage of the proceedings and the nature of the order passed by the Magistrate the inherent powers deserves not to be invoked.
13. I have considered the submissions advanced by the learned counsel for the applicant and the learned A.G.A.
14. To appreciate the rival contentions it is necessary to consider the nature of the proceedings, the procedure prescribed, the stage of the proceedings and the right of the applicant to invoke the inherent power of this Court in a petition filed under Section 482 Cr.P.C.
15. It is apt to refer to the legal provisions of Sections 195, 340, 341 and 343 Cr.P.C. as follows:-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
340. Procedure in cases mentioned in section 195.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in section 195.
"341. Appeal.
(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub- section (1) or sub- section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision."
343. Procedure of Magistrate taking cognizance.
(1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.
(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided."
16. Section 195 Cr.P.C. deals with distinct categories of offences prescribed under Clauses (a), (b)(i), (b)(ii) and (b)(iii). Section 195(1) mandates a complaint in writing of the court for taking cognizance of the offences enumerated in clause (b) thereof. The offences mentioned in clause (b) relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct good co-relation with the proceedings in a court of justice.
17. Section 340 Cr.P.C. provides the procedure for filing complaint; as per the procedure prescribed, when an application is made to the Court, or even otherwise, if a Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of sub Section (1) of Section 195 Cr.P.C. which appears to have been committed in or in relation to proceedings in that court or, as the case may be in respect of a document produced or given in evidence in a proceeding in that court, such court may record a finding to that effect after such preliminary inquiry, if any, as it thinks necessary.
18. In Pritish versus State of Maharashtra and others (2002) 1 SCC 253 the Hon'ble Supreme Court has held that the hub of Section 340 Cr.P.C. is formation of an opinion by the Court, before which proceedings were held, that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed but, even when the court forms such an opinion it is not mandatory that the court should make a complaint. Sub section (1) of Section 195 Cr.P.C. confers power on the court to do so, but, it does not mean that the court should, as a matter of course, make a complaint. In Iqbal Singh Marwah versus Meenakshi Marwah 2005(2) SCC 549 the Constitution Bench of the Hon'ble Supreme Court has held that under Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint.
19. In Pritish (Supra), Iqbal Singh Marwah (Supra), and also in the State of Goa Vs. Jose Maria Albert Vales @ Robert Vales, (2018) 11 SCC 659, the Hon'ble Supreme Court has held that the Court at the stage envisaged in Section 340 of the Code would not decide the guilt or innocence of the party against whom the proceedings are to be instituted before the Magistrate and at that stage the Court is to be examine as to whether it was expedient in the interests of justice that an inquiry should be made into any offence affecting the administration of justice and that no expression of the guilt or innocence of the persons should be made while passing the order under Section 340 of the Code.
20. So far as holding of a preliminary enquiry as contemplated by Section 340 Cr.P.C. is concerned in Pritish (supra) it was held that the court is empowered to hold a preliminary enquiry although it is not peremptory that such an enquiry should be held and even without such a preliminary enquiry the court can form an opinion when it appears to the court that an offence of the nature contemplated by Section 195(1)(b) has been committed in relation to a Court. In Pritish (supra) it was also held that in such preliminary enquiry, if held, an opportunity to the would-be accused before the filing of the complaint is not mandatory. However, the Hon'ble Apex Court in Sharad Pawar versus Jagmohan (2010) 15 SCC 290 observed that it was necessary to conduct a preliminary inquiry under Section 340 Cr.P.C. and to afford an opportunity of hearing to the would-be accused. Learned A.G.A. has placed before this Court the judgment in State of Punjab versus Jasbir Singh (2020) 12 SCC 96 wherein the Hon'ble Supreme Court has referred the matter to the Larger Bench for consideration of the questions as to whether Section 340 Cr.P.C. mandates a preliminary inquiry and an opportunity of hearing to the would-be accused, before a complaint is made under Section 195 of the Code, by a Court.
21. Section 341 Cr.P.C. provides remedy of appeal to any person on whose application a court, other than the High Court, has refused to make a complaint under sub section (1) or sub section (2) of Section 340 Cr.P.C. as also to a person against whom such a complaint has been made by such court. The appeal lies to the court to which the court passing the order is subordinate. In view of Section 341 Cr.P.C., if on the application filed under Section 340 Cr.P.C. the court passes an order for making a complaint against a person, such person may appeal to the next higher court.
22. In the present case, the opposite party no. 2 has filed an application under Section 340 Cr.P.C. upon which the Magistrate has passed the order that the same shall be decided alongwith the Complaint Case No. 19 of 2018. The Magistrate has neither recorded any finding that in his opinion it is expedient in the interests of justice that an inquiry should be made in the offence under Section 195 (1)(b) Cr.P.C. nor has made a complaint of such an offence in writing against the applicant. It is also not the submission of the learned counsel for the applicant that the Magistrate has refused to make a preliminary inquiry as contemplated by Section 340 Cr.P.C. or that any opportunity of hearing, in such preliminary enquiry, if and when held, would not be given to the applicant.
23. So far as the submission of the learned counsel for the applicant on merits of the application under Section 340 Cr.P.C. is concerned, it is for the court concerned, at the first instance, to consider and decide the said application.
24. A parallel enquiry into the application under Section 340 by this Court under Section 482 Cr.P.C. is neither proper nor feasible. The correctness or genuineness of the averments in the application under Section 340 Cr.P.C. being question of fact can best be determined by the Court concerned for the purposes of making or not making a complaint by such Court to the court concerned. If the applicant feels aggrieved from an order of the Magistrate making a complaint against him, Section 341 Cr.P.C. provides for statutory remedy of appeal which it would be open for the applicant to avail, if required and so advised.
25. It is by now well settled that a power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint, as has been held in so many cases; to refer few, State of Haryana versus Bhajanlal 1992 (1) SCC 335, Girish Kumar Suneja versus C.B.I. (2017) 14 SCC 809.
26. Recently in Google India (P) Ltd. Vs. Visaka Industries, (2020) 4 SCC 162 the Hon'ble Supreme Court reiterated the contours of the jurisdiction of the High Court under Section 482 Cr.P.C. as also the scope of the expression ''rarest of rare of cases'. Paragraphs 42, 43 and 78 read as under:-
"42. The contours of the jurisdiction of the High Court under Section 482 is no longer res integra. We would think that it is sufficient if we only advert to the judgment of this Court in State of Haryana and others v. Bhajan Lal and others17. This Court held as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
43. As to what is the scope of the expression "rarest of rare cases" indicated in paragraph 103, we may only refer to the judgment of this Court in Jeffrey J. Diermeier and another v. State of West Bengal and another18 wherein the law laid down by a Bench of three Judges in Som Mittal v. Govt. of Karnataka19 has been referred to:
"23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. Govt. of Karnataka [(2008) 3 SCC 574 : (2008) 1 SCC (L&S) 910 : (2008) 2 SCC (Cri) 1] . Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said: (SCC pp. 580-81, para 9) (2010) 6 SCC 243 (2008) 3 SCC 753.
"9. 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 emphasise 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 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection." (Emphasis supplied)
78. ".....................It was in these circumstances, this Court took the following view in regard to the manner in which the matter must be approached when a party approaches High Court under Section 482 of the Cr.PC:
"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.
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 result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is 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, would 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." (Emphasis supplied)"
27. Learned counsel for the applicant has not been able to demonstrate before this Court as to under which provision of law, the applicant has a right for disposal of the application under Section 340 Cr.P.C. at this stage, as also that the Court had no jurisdiction to direct consideration of the application at the time of disposal of the applicant's Complaint Case No. 19 of 2018, on merits.
28. It could also not be established by the learned counsel for the applicant that any legal right of the applicant has been adversely affected by the order passed by the Magistrate nor that such an order or proceeding amounts to an abuse of the process of the Court.
29. I am of the considered view that it would not be in the ends of justice that the application under Section 340 Cr.P.C. be not enquired into by the court concerned as per law.
30. For the reasons aforesaid, as also that the Code of Criminal Procedure is a Complete Code, which provides for a remedy of an appeal to the person against whom an order making a complaint is passed, this Court refuses to invoke its extraordinary jurisdiction under Section 482 Cr.P.C. in the present matter. The application under Section 482 Cr.P.C. is hereby rejected.
31. It is clarified that this Court has not adjudicated nor commented on the merits of the application under Section 340 Cr.P.C.
32. No orders as to costs.
Order Date :- 02.03.2021 (Ravi Nath Tilhari, J.)
SY/VKG