Allahabad High Court
Ajay Rai vs State Of U.P. And Another on 4 January, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Neutral Citation No. - 2024:AHC:1469 Court No. - 65 Case :- APPLICATION U/S 482 No. - 33837 of 2023 Applicant :- Ajay Rai Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Vajpeyi,Praveen Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicant and Sri P.C. Srivastava, learned Additional Advocate General for the State and perused the record.
2. This application u/s 482 Cr.P.C. has been preferred for quashing of entire proceedings, including charge-sheet dated 10.05.2018 and summoning order dated 22.11.2018, of Criminal Case No. 5982 of 2018, (State of U.P. vs. Ajay Rai and others), arising out of Case Crime No. 190 of 2017, under Sections 188 IPC, P.S. Chetganj, District Varanasi, pending in the Court of Special Chief Judicial Magistrate, Varanasi.
3. Learned counsel for the applicant submitted that no case is made out against the applicant-accused and the impugned proceedings are barred by law. As per first information report, on the intervening night of 30.6.2017/1.7.2017 the applicant-accused, along with 50-60 unknown persons, made sloganeering against G.S.T. bill, whereas the proclamation under Section 144 Cr.P.C. was in force. The first information report was registered for offence under Section 188 IPC. After investigation, charge sheet was submitted under Section 188 IPC and the court took cognizance by impugned summoning order.
4. Learned counsel submitted that in view of provisions of Section 195 Cr.P.C., the Court cannot take cognizance on the basis of charge sheet submitted by police, rather the cognizance has to be taken on the basis of complaint made in writing by the public servant concerned in accordance with provisions enshrined under section 195 CrPC but in the instant case no such complaint has been filed and thus, impugned proceedings are barred by the provisions of Section 195 Cr.P.C. and thus, liable to be quashed.
5. Learned Additional Advocate General has opposed the application and submitted that cognizance of the offence has already been taken by the Trial Court and during trial two witnesses have already been examined and at this stage the application under Section 482 Cr.P.C. is not maintainable. Referring to provisions of Section 460(e) CrPC, it was submitted that any irregularity in taking cognizance would not vitiate the proceedings. Learned AAG referred facts of the matter and submitted that at this stage no case for quashing of impugned charge-sheet and proceedings is made out.
6. I have considered rival submissions and perused the record.
7. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. The Hon'ble Court held as under:
"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."
8. In State of Karnataka v M Devendrappa, (2002) 3 SCC 89, it was held that exercise of power under Section 482 of the Code is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle 'quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest' (when the law gives a person anything it gives him that without which it cannot exist). Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised 'ex debito justitiae' to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
9. Keeping the aforesaid legal position in view, it may be observed that in the instant matter the first information report was registered under section 188 CrPC, alleging that on the night of 30.6.2017 the applicant-accused, along with 50-60 unknown persons, raised slogans against G.S.T. bill, whereas the proclamation under Section 144 Cr.P.C. was in force. The police investigated the matter and submitted charge-sheet under Section 188 IPC. The trial court took cognizance by impugned summoning order and later on charge was framed. It is not in dispute that cognizance for the offence under section 188 CrPC is permissible only upon a complaint in writing made by the competent officer, as prescribed under Section 195 Cr.P.C. The provisions of Section 460(2) Cr.P.C. would have no applicability in the matter, thus, contention raised on behalf of the State cannot be accepted. For sake of convenience section 195 Cr.P.C. is reproduced as under:-
"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), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, 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 appellable 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 is 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."
10. Thus, in respect of offences punishable under Sections 172 to 188 IPC or abetment thereof, the Court can take cognizance only on a complaint in writing made by the public servant concerned or some public servant to whom he administratively subordinate. The prohibitory orders are issued by the executive Magistrates. In the instant matter, admittedly no such complaint of public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet cannot be treated to be a complaint under section 195 CrPC. In the case of Kailash Mangal Vs. Ramesh Chand 2015 LawSuit (SC) 251, in paragraph no. 9 of judgment, the Apex Court held:-
"9. We may usefully refer to the judgment of this court reported in the case of C. Muniappan in which case the scope of Section 195(1)(a)(i) of the Code of Criminal Procedure was discussed at length. Relevant para Nos. 28 to 33 are extracted hereunder:
"28. Section 195(1)(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.P.C. like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, 1971 3 SCC 329; Patel Laljibhai Somabhai v. The State of Gujarat, 1971 2 SCC 376; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; 2 K Vengadachalam v. K.C. Palanisamy 7 Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 370).
29. The test of whether there is evasion or non- compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors. v. State of Orissa, AIR 1966 SC 1775, the Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.
30. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :
"....Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."
31. In Sachida Nand Singh & Anr. State of Bihar 7 Anr., (1998) 2 SCC 493, the Court while dealing with this issue observed as under :
"7..... Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well-recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise."
32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, the Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under :
"4....The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained.
5....The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
11. In view of above referred case laws, it is apparent that provisions of section 195 CrPC are mandatory and thus the court has no jurisdiction to take cognizance of the offence under Section 188 IPC unless there is a complaint of the officer concerned in writing as required under section 195 CrPC.. In the instant case it could not be disputed that no complaint was filed by the concerned public servant in terms of section 195 CrPC and thus, the cognizance taken by the Magistrate on the police report is not in accordance with law, as the same is barred by Section 195 Cr.P.C. Though there is long delay in filing of the instant application but in view of legal bar of taking cognizance without complaint in terms of section 195 CrPC, no useful purpose would be served by allowing Trial court to continue the impugned proceedings, as the same would be wastage of precious time of the court. The case is squarely covered under clause (6) of of the aforementioned guidelines carved out by the Hon'ble Apex Court in case of Bhajan Lal (supra) for quashing of proceedings. Therefore, no useful purpose would be served by subjecting the applicant/ accused to trial and the continuance of the impugned proceedings is abuse of the process of court.
12. In view of aforesaid, the impugned proceedings, including the charge-sheet and cognizance order, of the case in question are hereby quashed.
13. The application under 482 CrPC is allowed.
Order Date-04.01.2024 A.P. Pandey/Anand