Allahabad High Court
Prof. Ramesh Chandra vs State Of U.P. And Anothers on 17 April, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 02.01.2020 (In Court No.34) Delivered on 17.04.2020 In Chamber Case :- APPLICATION U/S 482 No. - 5939 of 2006 Applicant :- Prof. Ramesh Chandra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rakesh Kumar,R.P. Tiwari Counsel for Opposite Party :- Govt. Advocate,P.K. Rao,V.B. Rao Hon'ble Sudhir Agarwal,J.
1. Heard Sri W.H.Khan, Senior Advocate, assisted by Sri R.P.Tiwari, learned counsel for applicant, learned A.G.A. for opposite party 1 and Sri P.K.Rao, Advocate, for opposite party 2.
2. This is an application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by Prof. Ramesh Chandra with the prayer that charge sheet dated 11.8.2005 submitted in Case Crime No.C-26 of 2004 under Sections 295, 298, 203, 504 IPC, arising from Case No.8791 of 2005 registered at Police Post Bundelkhand Vishwavidyalaya, Police Station (hereinafter referred to as "P.S.") Nawabad, District Jhansi be quashed.
3. Facts in brief giving rise to present application are that opposite party 2 (hereinafter referred to as "O.P.-2") Arvind Kumar Soni, (hereinafter referred to as "Complainant/Informant") filed an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Jhansi (hereinafter referred to as "C.J.M.") to direct Police to register report against applicant Ramesh Chandra, Smt. Kalpana Mathur, V.K.Sinha, R.K.Saxena, Ms. Aparnaraj, Priyanka and three others under Sections 295, 298, 120B, 504 IPC. O.P.-2 i.e. Complainant/Informant claimed himself to be District Coordinator of Bundelkhand Insaaf Sena. Allegations in complaint read as under :
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4. Chief Judicial Magistrate, Jhansi passed an order on 05.11.2004 directing Police to register First Information Report (hereinafter referred to as "FIR") and after investigation submit report under Section 173 Cr.P.C. Police of P.S. Nawaband, Jhansi consequently registered FIR under Sections 295, 298, 120B, 504 IPC as Case Crime No.C4 of 2004 dated 07.11.2004 wherein applicant and five others were named and three were unnamed accused persons.
5. Applicant and other five named accused filed Criminal Revision No. 208 of 2004 against C.J.M.'s order dated 05.11.2004 before District and Sessions Judge, Jhansi. The revision was registered on 01.12.2004 and ultimately dismissed vide judgment dated 09.02.2005 passed by Sri Upendra Kumar, Additional Sessions Judge/Fast Track Court No.3, Jhansi (hereinafter referred to as "Revisional Court").
6. Applicant and other named accused filed Criminal Misc. Writ Petition No.2941 of 2005 challenging C.J.M.'s order dated 05.11.2004 and Revisional Court's order dated 09.02.2005 but this Court vide judgment dated 21.3.2005 declined to interfere with aforesaid orders holding that prima facie cognizable offence is made out and therefore, there is no illegality in the said orders. However, this Court granted indulgence only to the extent that petitioners during investigation may not be arrested.
7. After investigation, Police has submitted charge sheet No.322/05 dated 11.8.2005 against applicant. It is this charge sheet which has been challenged in the present application.
8. Sri W.H.Khan, Senior Counsel appearing for applicant submitted that charge sheet has been submitted before Magistrate without any application of mind; applicant is a ''public servant' and no sanction under Section 197 Cr.P.C. has been obtained; and no specific allegation has been made and proceedings under Section 156(3) Cr.P.C. were wholly illegal.
9. In my view, none of the arguments have any force.
10. Order passed by C.J.M. under Section 156(3) Cr.P.C. was already challenged by applicant in Revision by District Judge and then in Criminal Misc. Writ Petition No.2941 of 2005. He lost in both Courts. This Court, having not found any illegality therein, declined to interfere. Hence order of C.J.M. directing Police to register FIR cannot be allowed to be reagitated in this application.
11. Learned counsel for applicant submitted that application under Section 156(3) Cr.P.C. must have been supported by an affidavit and relied on Supreme Court's judgment in Priyanka Srivastava and Another vs. State of Uttar Pradesh and others (2015) 6 SCC 287, but, as already said, this issue is not open to be raised in this application since order passed by C.J.M. on 05.11.2004 on the application filed under Section 156(3) Cr.P.C. was already agitated by applicant in Criminal Revision before District Judge and then in Criminal Misc. Writ Petition No.2941 of 2005 and he failed therein. This Court has already upheld order of C.J.M. And Revisional Court vide judgment dated 21.3.2005, hence this issue cannot be allowed to be reagitated in this application. Therefore, aforesaid judgment would not help applicant in any manner.
12. Even otherwise, I do not find that for the purpose of present case, applicant can have any benefit of aforesaid authority as it has not application to this case. Therein one Prakash Kumar Bajaj availed a housing loan from Punjab National Bank Housing Finance Limited (hereinafter referred to as "PNBHFL") on 21.01.2001. Loan was in the name of Prakash Kumar Bajaj and his wife Jyotsana Bajaj. They committed default in payment of instalment. PNBHFL treated housing loan as a non-performing asset (hereinafter referred to as "NPA") in accordance with guidelines framed by Reserve Bank of India. PNBHFL issued notice to borrowers Prakash Kumar Bajaj and Jyotsana Bajaj under Section 13(2) of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "SARFAESI Act"). PNBHFL on 05.06.2007 submitted application before District Magistrate, Varanasi for taking action under Section 13(4) of SARFAESI Act. At this stage, Sri Bajaj preferred Writ Petition No.44482 of 2007 before this Court, which was dismissed on 14.09.2007 with the observation that Sri Bajaj may file requisite objection and take appropriate action under Section 17 of SARFAESI Act. Sri Bajaj however preferred Criminal Complaint Case No.1058 of 2008 against V.N.Sahay, the then Vice President; Sandesh Tiwari, Assistant President and V.K.Khanna, Managing Director of PNBHFL for offences punishable under Sections 163, 193, 506 IPC, alleging that said accused persons had intentially taking steps to cause injury to him. Vide order dated 04.10.2008, Magistrate dismissed criminal complaint and declined to take cognizance after recording statements of complainant Sri Bajaj under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. Undeterred, Sri Prakash Kumar Bajaj preferred Criminal Revision No.460 of 2008 whereupon Additional Sessions Judge, Varanasi allowed revision, set aside Magistrate's order dated 04.10.2008 and remanded the matter to Magistrate with direction that he shall hear again and pass order on cognizance according to law on the basis of merits in the light of directions given by Revisional Court. Revisional Court while allowing revision had not issued any notice to accused persons. Supreme Court deprecated this approach of Revisional Court in Priyanka Srivastava (Supra) by observing in para 5 as under :
"Be it noted, the learned Additional Sessions Judge heard the counsel for the Respondent No. 3 and the learned Counsel for the State but no notice was issued to the accused persons therein. Ordinarily, we would not have adverted to the same because that lis is the subject matter in the appeal, but it has become imperative to do only to highlight how these kind of litigations are being dealt with and also to show the Respondents had the unwarranted enthusiasm to move the courts. The order passed against the said accused persons at that time was an adverse order inasmuch as the matter was remitted. It was incumbent to hear the Respondents though they had not become accused persons." (Emphasis added)
13. For making above observation, Supreme Court relied on its authority in Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Patel (2012) 10 SCC 517; P.Sundarrajan vs. R. Vidhya Sekar (2004) 13 SCC 472; Raghu Raj Singh Rousha vs. Shivam Sundaram Promoters (P) Ltd. (2009) 2 SCC 363; and A.N. Santhanam vs. E. Elangovan (2012) 12 SCC 321.
14. In Prinyanka Srivastava (supra) following Revisional Court's direction, Magistrate vide order dated 13.7.2009 took cognizance and issued summons to all the three accused officials of PNBHFL. Accused persons then came to this Court in application under Section 482 Cr.P.C., which was allowed and proceedings in Criminal Complaint Case No.1058 of 2009 were quashed. In the meantime Prakash Kumar Bajaj and his wife i.e. borrowers, filed objection under Section 13 of SARFAESI Act. The objections having not been dealt with, Prakash Kumar Bajaj filed Writ Petition No.22254 of 2009, which was decided by this Court vide order dated 05.05.2009 directing disposal of objection. The objection was rejected by Competent Authority vide order dated 01.6.2009 whereagainst Securitisation Appeal No. 5 of 2010 was filed by Prakash Kumar Bajaj before Debt Recovery Tribunal, Allahabad (hereinafter referred to as "D.R.T."). The appeal was rejected vide order dated 23.11.2012. Sri Bajaj preferred further appeal before Debt Recovery Appellate Tribunal, Allahabad (hereinafter referred to as "D.R.A.T."). Sri Bajaj then filed another application under Section 156(3) Cr.P.C. against V.N.Sahay, Sandesh Tripathi and V.K.Khanna, officials of PNBHFL alleging criminal conspiracy and forging of documents referring to three post-dated cheques. It was numbered as Complaint Case No.344 of 2011 giving rise to FIR No.262 of 2011 under Sections 465, 467, 468, 471, 386, 506, 34, 120-B IPC. Sri Bajaj filed third application dated 30.10.2011 under Section 156(3) Cr.P.C. alleging that there was undervaluation of his property. This complaint was registered as Complaint Case No.396 of 2011 causing registration of FIR No.298 of 2011. Continuous filing of criminal cases compelled officials of PNBHFL to enter into one-time settlement on the stipulation that Sri Bajaj shall withdraw all the cases on acceptance of one-time settlement. It was acted upon and Sri Bajaj deposited Rs.15 lakhs. Sri V.N.Sahay and two others, in the meantime, preferred Writ Petition No.17611 of 2013 which was heard by a Single Judge along with Criminal Misc. Application No.13628 of 2010 filed under Section 482 Cr.P.C. Writ Petition was disposed of alongwith application under Section 482 Cr.P.C. observing that since final report has been submitted, therefore, writ petition has become infructuous. Appeal preferred by Sri Bajaj at D.R.A.T. was decided in terms of one-time settlement. Sri Bajaj still proceeded further by filing one more application under Section 156(3) Cr.P.C. on 30.10.2011 against Vice-President and Valuer of PNBHFL. Magistrate directed Police to register FIR, which resulted in FIR No.298 of 2011 for offences under Sections 465, 467, 471 IPC as Case Crime No.415 of 2011. It was challenged by officials of PNBHFL in Criminal Misc. Application No.24561 of 2011, which was rejected by this Court vide order dated 23.12.2011 and thereafter matter came to Supreme Court. It is in this backdrop and peculiar facts, Supreme Court in para 19 observed that narration of facts exemplifies in enormous magnitude recourse to Section 156(3) Cr.P.C., as if it is a routine procedure. Court deprecated this approach and observed, if a borrower is allowed to take recourse to criminal law in the manner it has been taken, it has inherent potentiality to affect marrows of economic health of the nation. Statutory remedy were cleverly bypassed and prosecution route was undertaken for instilling fear amongst individual authorities compelling them to concede to the request for one-time settlement which the financial institution may not have acceded. Court observed that there was a contest with a perverse sadistic attitude. Court also deprecated Magistrate who ordered registration of FIR, observing that he exercised power under Section 156(3) Cr.P.C. without any application of mind and passed order for registration of FIR in a routine manner. Court said :
"The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalized."
(Emphasis added)
15. Referring to earlier decision in Devarapalli Lakshminarayana Reddy vs. V. Narayana Reddy (1976) 3 SCC 252, Court, in Priyanka Srivastava and Another (supra), said, that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. With regard to Section 156(3) Cr.P.C., observations regarding caution noticed in Anil Kumar vs. M.K. Aiyappa (2013) 10 SCC 705; Dilawar Singh vs. State of Delhi (2007) 12 SCC 641; Maksud Saiyed vs. State of Gujarat (2008) 5 SCC 668; CREF Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. (2005) 7 SCC 467; Madhao vs. State of Maharashtra (2013) 5 SCC 615; and Ramdev Food Products (P) Ltd. vs. State of Gujarat (2015) 6 SCC 439 were also referred. Supreme Court also referred to and relied on its Constitution Bench judgment in Lalita Kumari vs. State of U.P. (2014) 2 SCC 1.
16. Having referred to above authorities, in para 27 of judgment, Court in Priyanka Srivastava and Another (supra), said :
"Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Code of Criminal Procedure and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to. "
(Emphasis added)
17. Further, in paras 29 and 30 of judgment, Court Priyanka Srivastava and Another (supra) said :
29. At this stage it is seemly to state that power Under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) Code of Criminal Procedure applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or Under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores." (Emphasis added)
18. To avoid mischief, which was noticed by Court in above authority i.e. Priyanka Srivastava and Another (supra), it was, thus observed that now time has come that application under Section 156(3) must be supported by an affidavit. The above judgment nowhere shows that in the earlier matters where applications have already been decided, they shall be bad if no affidavit was filed.
19. Reverting to basic contention, in any case, argument of lack of affidavit along with application under Section 156(3) Cr.P.C. disappeared when petitioner challenged correctness of order dated 05.11.2004 passed by Magistrate directing Police to register FIR as also upheld in revision but the said orders were upheld by this Court in Writ Petition No.2941 of 2005 filed by petitioner wherein Court declined to interfere vide judgment dated 21.03.2005. The said order has attained finality. What relief petitioner could not get in earlier writ petition, cannot be allowed to be reagitated in the present writ petition also and to this extent issue having already attained finality, has to be rejected.
20. Now coming to second aspect that sanction under Section 197(2) Cr.P.C. has not been obtained and therefore entire proceedings are bad in law, here, I find that aforesaid provision is applicable for the purpose of taking cognizance but applicant has preferred this application challenging charge sheet only and for making investigation and submission of charge sheet, no sanction is required as provisions as contained in Sections 195, 196 and 197 Cr.P.C. have no application at that stage.
21. Very recently, a three Judges Bench of Supreme Court has considered a similar issue in Station House Officer, CBI/ACB/ Bangalore vs. B.A. Srinivasan and Ors. 2019(16) SCALE 803 where cognizance order passed on charge sheet was challenged on the ground of lack of sanction and prayer for discharge was made but Trial Court rejected the same and in the criminal revision, High Court interfered. Supreme Court did not approve order of High Court and said that whether protection under Section 197 is available or not has to be examined not only on the consideration that incumbent is a 'public servant' but also whether offence alleged to have been committed relates to his act or purporting to act in discharge of official duties which would require investigation into facts. Relying on earlier judgments in Shambhoo Nath Misra vs. State of U.P. (1997) 5 SCC 326 (Para 5); Parkash Singh Badal vs. State of Punjab (2007) 1 SCC 1 (Paras 20 and 38); Rajib Ranjan vs. R. Vijay Kumar (2015) 1 SCC 513 (Para 18); P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation (2001) 6 SCC 704 and N.K. Ganguly vs. CBI, New Delhi (2016) 2 SCC 143, Supreme Court said that whether alleged act is intricately connected with discharge of official functions and whether matter would come within the expression 'while acting or purporting to act in discharge of their official duty', would get crystallized only after evidence is led and issue of sanction can be agitated at a later stage as well. Court said that without there being evidence and issue having been considered by Trial Court, at the stage of summoning such an issue cannot be examined by superior Court on a Criminal Revision or on an application under Section 482 Cr.P.C. This judgment, in my view, rather goes against applicant instead of helping him.
22. In this case, applicant has long back ceased to be an official of University. Learned A.G.A. has informed that he has already been terminated. Once accused-applicant is no more a 'public servant', issue of Section 197 will become redundant and would not vitiate proceedings since in such matters sanction is not required.
23. Learned Senior Counsel submitted that though order of cognizance could not be appended to the application but he has got a copy of said order dated 21.09.2005 and it shows that it is a totally non speaking, unreasoned order and therefore bad in law. Copy of order placed before court passed by C.J.M. on 21.09.2005 reads as under ;
^^vkt vkjksi i= U;k;ky; esa izkIr gqvkA ckn voyksdu vkns'k gqvk fd ntZ jftLVMZ gks vfHk;qDr ds fy, izlaKku fy;k x;k udys rS;kj djk;h tkosA fnukad 30-11-05 dks okLrs gkftjh ,oa nsus udys is'k gksaA** (Emphasis added)
24. Having gone through the said order it cannot be said that Magistrate had not applied its mind to the documents placed before registering the case and taken cognizance by summoning accused-applicant. A similar issue was considered in U. P. Pollution Control Board vs. Mohan Meaking Limited and others, 2000 (3) SCC 745, and after referring to an earlier decision in Kanti Bhadra Shah Vs State of West Bengal 2001 SCC 722, Court said :
"Legislature has stressed the need to record reasons in certain situations such as dismissal of complaint without issuing process. There is no such requirement imposed on a Magistrate for passed detailed order while issuing summons. Process issued to accused cannot be quashed merely on the ground that Magistrate had not passed a speaking order." (Emphasis added)
25. Same proposition was reiterated in Nupur Talwar Vs Central Bureau of Investigation and others, 2012 (11) SCC 465. Thus even this argument fails.
26. No other point has been argued.
27. I, therefore, find no merit in the application.
28. Dismissed. Interim order, if any, stands vacated.
Order Date :- 17.4.2020 KA