Allahabad High Court
Savitri Devi & Ors. vs State Of U.P. & Ors. on 21 May, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- U/S 482/378/407 No. - 3418 of 2017 Applicant :- Savitri Devi & Ors. Opposite Party :- State Of U.P. & Ors. Counsel for Applicant :- Narendra Gupta,Ramchandra Gupta Counsel for Opposite Party :- Govt. Advocate Hon'ble Chandra Dhari Singh,J.
1. Petitioners have approached this Court for quashing of the proceedings of Case No.2925 of 2008 (State Vs. Savitri Devi and others) pending in the Court of leaned Additional Chief Judicial Magistrate-III, Faizabad and the order dated 24.06.2016.
2. Brief facts of this case are that an NCR bearing No.3 of 2008 was registered on 05.01.2008 under Section 323 IPC against the petitioners by the opposite party no.3 with the allegation that the family members of Bhagwan Deen have assaulted his wife and Bhabhi with Lathi and Danda. After registration of the aforesaid NCR, an application under Section 155 (2) of Cr.P.C. was moved for seeking permission to investigate the matter which was allowed by the concerned Magistrate. The opposite party no.2 investigated the matter and submitted charge-sheet on 31.03.2008. After submission of charge-sheet, the concerned Magistrate had took cognizance and issued summons vide order dated 17.12.2008 to the petitioners to face trial under Section 323 of IPC. Against the order dated 17.12.2008, petitioners had approached this Court by way of Criminal Misc. Case No.178 of 2009 (under Section 482 of Cr.P.C.), which was disposed of vide order dated 28.04.2011 after setting aside the summoning order dated 17.12.2008 and the matter was remanded back to the concerned court with a direction that the charge-sheet in question shall be deemed to be a complaint case and the Investigating Officer shall be deemed to be the complainant and thereafter, the procedure for complaint case, as provided under Chapter XV of Cr.P.C. shall be followed and appropriate orders would be passed. In pursuance of the order dated 28.04.2011 passed by the Co-ordinate Bench, the petitioners had moved an application along with a copy of the said order before the learned Magistrate concerned. The learned Magistrate concerned rejected the said application on the ground that the complainant was only discharging his duty and prima facie offence under Section 323 is made out against the petitioners. Vide order dated 30.01.2013, learned Magistrate proceeded for summoning the opposite party no.3 as PW 1 for recording the statement while treated the said case as State case.
3. In pursuance of the order dated 30.01.2013, several statements of the witnesses have been recorded under Section 244 of Cr.P.C. treating the case as State case. The concerned Magistrate has summoned the petitioner without recording the statements of witnesses as well as complainant as provided under Sections 200 and 202 of Cr.P.C. The petitioners had moved an application before the concerned Magistrate wherein it has been specifically mentioned that the wrong procedure has been adopted due to which the entire proceedings has been vitiated. The court concerned has rejected the said application vide order dated 24.06.2016.
4. Submission of learned Counsel for the petitioner is that despite the order of this Court for treating the case as a complaint case, the learned Magistrate concerned has summoned the prosecutions witnesses, namely, Vinod Kumar (PW 1), Rajesh Kumar (PW 2), Madhuri Devi (PW 3), Smt. Kiran (PW 4) and Dr. Neeraj Srivastava (PW 5) and recorded their statements under Section 244 of Cr.P.C. treating the case as a State case which is against the order passed by this Court vide order dated 28.04.2011. It has also been submitted that the statements of those persons have also been recorded whose names have neither been shown in the charge-sheet nor in the NCR.
5. The learned Counsel for the petitioner has further submitted that the impugned order dated 24.06.2016 passed by learned Additional Chief Judicial Magistrate-III, Faizabad is illegal, arbitrary, unjust and against the provisions of Chapter XV of Cr.P.C. The learned Magistrate has adopted the procedure of Section 244 of Cr.P.C. which vitiates the entire proceedings as the petitioners have not been afforded the opportunity to move an application for discharge under Section 239 of Cr.P.C. Section 239 itself provides that after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused and thereafter according to Section 240 of Cr.P.C., if the Magistrate is of the opinion that there is a ground for presuming that the accused has committed an offence triable under this chapter then the charge shall be read and explain to the accused and to be tried, but such procedure has not been followed by the concerned Magistrate and by way of passing the order dated 30.01.2013 has directly summoned the witnesses for producing their evidence.
6. Learned Counsel for petitioners have submitted that petitioners no.1 to 3 are innocent ladies and have not committed any offence as alleged. The entire case is nothing but a gross misuse of process of law. Due to property dispute, the malicious prosecution against the petitioners have been initiated but the court concerned without considering the entire facts and the proper procedural law has taken cognizance against the petitioners.
7. Learned Counsel for petitioners has again submitted that the case was initiated by way of lodging an NCR No.3 of 2008 on 05.01.2008, under Section 323 IPC in which it has been alleged that all three petitioners entered into the house of complainant and started quarrel and beaten the family members causing injury on their person. It has vehemently been submitted that inspite of directions of this Court dated 28.04.2011 passed by the Co-ordinate Bench in Criminal Misc. Case No.178 of 2009, the court below has not followed the procedure as prescribed in Cr.P.C. The offence under Section 323 IPC is non-cognizable offence and the charge-sheet submitted against the petitioners shall be deemed to be a complaint in view of Section 2(d) of Cr.P.C., therefore, the court concerned has illegally taken cognizance on the charge-sheet summoning the petitioners. The said legal point has also been considered by the Co-ordinate Bench while passing the order dated 28.04.2011.
8. The learned Counsel for petitioners has again submitted that according to Section 251 of Cr.P.C., the statements of the witnesses have to be recorded but without following the procedure, the case is going on as state case and the doctors whose statement has also been recorded as PW 5 who is not a necessary witness merely as a formal witness nor an eyewitness of the incident. The court below has rejected the application of the petitioners only on baseless ground which cannot be overlooked in any manner as such the entire proceedings have been vitiated against the petitioners and, therefore, the entire proceedings are liable to be quashed.
9. The learned Counsel appearing on behalf of the petitioners has submitted that the charge-sheet was submitted by the police only under Section 323 IPC. Since the offence of Section 323 IPC is non-cognizable offence, therefore, on earlier occasion, the petitioners have approached this Court by way of filing an application under Section 482 of Cr.P.C. bearing Criminal Misc. Case No.178 of 2019, which was disposed of on 28.04.2011 directing the learned Magistrate concerned to treat the charge-sheet as complaint and proceed with the case as complaint case. It has been submitted that during the course of proceedings, the Magistrate without there being any evidence, added Section 504 IPC. It has also been submitted that at this stage of the proceedings, the offence of Section 504 IPC was added while observing that the applicants were also summoned under Sections 323, 504 IPC on earlier occasion vide order dated 05.05.2011, which is contrary to the record. Learned Counsel has pointed out from the summoning order dated 05.05.2011 and submitted that the observations made in the order dated 24.06.2016 is totally wrong as they never be summoned under Section 504 IPC. Therefore, the order dated 24.06.2016 appears to be against the record.
10. Per contra, learned A.G.A. and learned Counsel for the opposite party no.3 have vehemently opposed the submissions of learned Counsel for the petitioners and submitted that the petitioners have also lodged an NCR bearing No.4 of 2008 against the opposite party no.3 complainant in which investigation has also been conducted after seeking permission under Section 155 (2) of Cr.P.C. The charge-sheet was filed against the complainant and his family members on 02.03.2008, under Sections 452, 354, 504, 506 IPC. The learned Magistrate clubbed both the cases and fixed for hearing.
11. It has also been submitted by learned Counsel for the opposite parties that in compliance of the order passed by this Court vide order dated 28.04.2011, the case has been treated as a complaint case as per the provisions of Chapter XV of Cr.P.C. and the statement of witnesses have been recorded under Section 244 of Cr.P.C. The learned Magistrate has rightly rejected the application of the petitioners vide order dated 24.06.2016 by which the petitioners have questioned the procedure adopted by the learned Magistrate. There is no illegality in the order impugned order and the procedure adopted by the learned Magistrate, therefore, the instant petition under Section 482 of Cr.P.C. is liable to be quashed.
12. Before considering the submissions advanced by learned Counsel for the parties, it would also be appropriate to consider the scope and powers of Section 482 of Cr.P.C.
13. In the case of Central Bureau of Investigation v. K.M. Sharan; (2008) 2 SCC (Cri) 430, it has been held as under:
"24. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 :1992 SCC (Cri) 426 this Court in the backdrop of interpretation of various relevant provisions of CrPC 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 of the Constitution of India or the inherent powers under Section 482 CrPC gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. This Court in the said judgment made it clear that 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 to myriad kinds of cases wherein such power should be exercised. According to this judgment, the High Court would be justified in exercising its power in cases of following categories: (SCC pp. 378-79, para 102) "102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala 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."
14. In the case of Janta Dal v. H.S. Chowdhary and others; (1992) 4 SCC 305, the Hon'ble Supreme Court in para 132 has held as under:
"132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. 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. Courts must be careful to see that its decision in exercise of this power is based on sound principles."
15. In the case of Padal Venkata Rama Reddy v. Kovvuri Satyanarayana Reddy, (2011) 12 SCC 437, the Apex Court has observed as under:
"8. Section 482 of the Code deals with inherent power of the High Court. It is under Chapter 37 of the Code titled "Miscellaneous" which reads as under:
"482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
This section [Ed.: The reference is to S. 561-A of the 1898 code which found place in the new CrPC of 1973 as S. 482 thereof. S. 561-A was inserted in the 1898 Code in 1923.] was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the High Courts were unable to render complete justice even if in a given case the illegality was palpable and apparent. This section envisages three circumstances in which the inherent jurisdiction may be exercised, namely:
1. to give effect to any order under CrPC,
2. to prevent abuse of the process of any court,
3. to secure the ends of justice."
16. It would also be appropriate to reproduced the directions issued by this Court vide order dated 28.04.2011 in Criminal Misc. Case No.178 of 2009, which reads as under:
"8. In view of foregoing discussions, the impugned orders taking cognizance on the chargesheet in question, and summoning the petitioners/accused, are quashed. The matter is remanded back to the concerned court with the direction that the chargesheet in question, submitted by the police officer, shall be deemed to be a complaint and the Investigating Officer, shall be deemed to be the complainant and thereafter, the procedure for complaint case, as provided under Chapter XV of Cr.P.C. shall be followed and the appropriate orders would be passed, in accordance with law."
17. After considering the abovesaid directions and the material available on record, this Court is of the considered opinion that while passing the impugned order, the court concerned has not followed the directions of this Court and also not proceeded as per the law prescribed under statute. The next contention of the learned Counsel for petitioners is that the entire criminal proceedings is not only total gross misuse of process of law but also it is a malicious prosecution because the said criminal proceedings have been initiated against the petitioners only to put pressure upon them to settle the property dispute. The High Court has inherent powers under Section 482 of Cr.P.C. for quashing the criminal proceedings if it is found that the entire criminal proceedings are nothing but a total gross misuse of process of law or a malicious prosecution against anybody. The exercise of such power is essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts, the High Court should exercise its inherent powers to do the complete justice. The process of the court cannot be permitted to be used for an oblique or ultimate or ulterior purpose.
18. For the reasons stated above, I am of the considered view that the court concerned has not followed the direction of this Court dated 28.04.2011 passed in Criminal Misc. Case No.178 of 2009 and has not taken into consideration the procedure prescribed under the statute and the material available on record. Hence, after considering the arguments advanced by both the parties and after perusal of the material available on record, I am also of the view that the criminal prosecution initiated against the petitioners are nothing but an abuse of the process of law and the same are liable to be quashed.
19. Accordingly, the proceedings of Case No.2925 of 2008 (State Vs. Savitri Devi and others) pending in the Court of leaned Additional Chief Judicial Magistrate-III, Faizabad as well as the impugned order dated 2t4.06.2016 are hereby quashed. The petition under Section 482 of Cr.P.C. stands allowed.
Order Date:21.05.2020 akverma