Dr. Samrat Sharma vs State Of Uttarakhand And Another on 26 September, 2022

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Uttarakhand High Court

Dr. Samrat Sharma vs State Of Uttarakhand And Another on 26 September, 2022

As a consequence of registration of the FIR at the behest of respondent No.2, which was registered as an FIR No. 267 of 2013 dated 15th October, 2013, the present applicant, was said to be involved in the set of allegations relating to the offences allegedly covered under Sections 467, 468, 469 and 471 of the IPC, which was registered at Police Station Gangnahar, Tehsil Roorkee, District Haridwar.

2. The matter was put to investigation and ultimately the Investigating Officer, had submitted his chargesheet, being Chargesheet No. 180 of 2013 dated 31st October, 2013, where it was prima facie found, that the set of allegations pertaining to the offences under Sections 467, 468, 469 and 471 of the IPC, have been made out and hence, he was summoned by the Court.

3. On submission of the Chargesheet, the Court of learned 1st Addl. Civil Judge (J.D.)/Judicial Magistrate, 2 Roorkee, District Haridwar, registered a Criminal Case No. 1554 of 2014, State Vs. Samrat Sharma, wherein, he has been summoned to participate in the trial of the aforesaid case. The summoning order dated 10th March, 2014, reads as under:-

"10/3/14: - आज यह आरोप पत्र �ायालय म� प्रा� �आ केस डायरी.... अ� प्रपत्रों का अवलोकन िकया गया अिभयु� सम्राट शमा� के िव�� धारा 467/468/469/471 आईपीसी म� सं�ान िलयाजाता है दज� रिज�र होवे अिभयु� की जमानत शेष है। नकले तैयार कराई जाये। अिभयु� को �ारा समन िदनांक 12-05-2014 के िलये तलब िकया जावे।"

4. When the C-482 Application was preferred before this Court by instituting the same on 8th July, 2015, the Coordinate Bench of this Court, by an order dated 9th July, 2015, had granted an interim protection, whereby, the proceedings of the Criminal Case No. 440 of 2014, State Vs. Samrat Sharma, was directed to be kept in abeyance.

5. The matter remained pending till the private respondent was noticed. He had put in appearance by filing his vakalatnama, as back as on 9th July, 2015. It is during the intervening period, that when the C482 Application was pending consideration, the grievance, which has been raised by the present applicant by filing a supplementary affidavit is to the effect, that the learned Trial Court while treating the interim order to have been vacated, the applicant was taken in custody and was kept behind the bar till he was later on released on bail. His grievance is, that confining him in jail 3 despite of subsistence of the interim order is rather in depriviation and in breach of his fundamental rights as contained under Article 21 of the Constitution of India, because his confinement in jail would be in violation of Article 21 of the Constitution of India, and the said period, which he had spent in jail, would not be retrievable to him.

6. Secondly, he submits that if the FIR itself is taken into consideration, in fact, the vertebra of the FIR is based upon the observation, which has been made in the proceedings which were held before the Appellate Court, as constituted under the Right to Information Act, and which has been derived as to be the foundation for registering the FIR, as against the present applicant, and particularly, the reference has been made by the applicant, who appeared in person, to the contents of the FIR, which he interprets, that it was got registered only as a consequence of the direction of the Information Officer.

7. In extension to his argument, he submits that even the chargesheet, which was submitted was merely foundationed upon the directives of the Information Commissioner, directing the respondent No.2, to register the FIR.

8. In order to answer this question, as raised by the applicant, in person, this Court called upon the applicant to place before the Court the orders passed by the Appellate Authority, which he has interpreted, as to have been taken as to be the basis for registration of the FIR. He referred to the 4 appellate order as rendered in Appeal No. A(UR) 12074/2015, as it was passed by the Information Commissioner in an Appeal under Section 19 (3) of the Right to Information Act.

9. Even if, the directives contained therein is taken into consideration, the part of which, is extracted hereunder :

" प्रथम िवभागीय अपीलीय अिधकारी �ारा आयोग के सम� प्र�ुत िल�खत अिभकथन म� कहा गया िक प्रथम अपील के िन�ारण आदेश के साथ अपीलाथ� को कम िकये गये शैि�क उपकरणों के िबल संल� कर प्रेिषत कर िदये गये थे। उन िब लों म� कूट रचना कर सद� कमेटी के ह�ा�र िवलोिपत कर िदये गये । अपीलाथ� �ारा आयोग के सम� प्र�ुत अपील म� प्रथम िवभागीय अपीलीय अिधकारी �ारा प्र�ुत िकये गये अिभलेखों को संल� िकया गया है। अतः िवभागीय अपीलीय अिधकारी के कथन म� स�ता प्रतीत हो ती है। लोक सूचना अिधकारी �ारा यह भी कथन िकया गया िक अ� प्रकरण म� भी कूट रचना की गई है। स�िभ�त अपील के संबंध मे लोक सूचना अिधकारी चाह� तो अपीलाथ� के िव�� स��त थाने म� प्रथम सूचना �रपोट� अंिकत करा सकते ह�। जहां तक सूचनाओं का प्र� है वां िछत सूचनाओं को उपल� करा िदया गया है । लोक सूचना अिधकारी �ारा कथन िकया गया िक िह�ी िवभाग के क� का िनमा�ण के उपरा� वहां कम्�ूटर स्थािपत कर िदये जाय�गे ।"

The Information Commissioner had made an observation pertaining to the set of allegations, relating to the offence, which is alleged by the complainant/ respondent No.2, but this Court is of the view, that the directives given by the Information Commissioner, cannot be exclusively taken as to 5 be a solitary basis for registering the FIR, nor does it reflect so from the order itself, which has been otherwise interpreted by respondent No.2, for the purposes of enabling him to register an FIR against the present applicant.

10. Though this argument, of the applicant in person, could be diluted owing to the observations which had been made in the FIR, because the FIR, was as an outcome of a complaint which was got registered by respondent No.2, based upon the exercise of his exclusive wisdom as per the directives of the appellate order of the Information Commissioner, as it was rendered on 16th September, 2013.

11. Hence, this argument of the applicant, present in person, that the FIR exclusively is on the basis of the directives of the Information Commissioner, is tentatively not acceptable by this Court, and so does the argument of his relating to the chargesheet is concerned, that is also not acceptable. Though pari materia its contents could be said to be that it has been shadowed by the directions of the orders passed by the Information Commissioner, and it could also be said that it was the judgment of the Information Commissioner, which had impressed upon the wisdom of respondent No.2 to register an FIR against the present applicant.

12. The second limb of argument of the applicant is that, taking cognizance to the chargesheet which was submitted by the Investigating Officer, while issuing the summoning order is bad in the eyes of law, because it does 6 not reflect, that there was at all applicability of mind at the behest of 1st Addl. Civil Judge /Judicial Magistrate prior to the issuance of the summoning order.

13. The respondents were noticed as already observed above and the private respondent No. 2, has not filed any counter affidavit ever since 9th July, 2015. Hence, it will be deemed that the respondent No.2 had accepted the tenacity of grounds taken by the applicant in his C-482 Application, in view of the judgment of the Hon'ble Apex Court as reported in AIR 1993 SC 2592, Smt. Naseem Bano Vs. State of U.P. and others, to be read with the principle judgement of the Hon'ble Apex Court as reported in AIR 1986 SC 872, Express Newspaper Pvt. Ltd. and others Vs. Union of India and others, which has laid down that when the parties to the proceedings after having put in appearance or despite of service of notice, they do not contest the matters on merits, the pleadings qua the person, who has not opposed the proceedings, would be deemed to be admitted.

14. In that eventuality, the second limb of argument of the applicant, in person, that the summoning order happens to be without application of mind, has been attempted to be argued by the learned Government Advocate, on the basis of the pleadings raised in their counter affidavit, which has been attempted to be qualified, that the learned Magistrate concerned prior to issuing of an order on 10th March, 2014, did apply its mind owning to the material, which has been referred to have been considered in the counter affidavit.

15. This Court is of the view, that this stand taken by the Government Advocate in the counter affidavit in order to project an applicability of mind by the Judicial Magistrate prior to issuance of the order of summoning dated 10th April, 2014, is not sustainable because of the fact, that the subsistence of a ground has had to be reflected from the contents of the order itself and it cannot be permitted to be qualified by the opponent to the proceedings, by raising a plea to the contrary in the counter affidavit in the light of judgements of the Hon'ble Apex Court as reported in AIR 1978 SC 851, Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi and others, which had postulated that an opposite party to the proceedings cannot qualify its pleadings beyond what is reflected in the impugned action, which is under challenge in the judicial proceedings, by raising additional or new plea in the counter affidavit.

16. In that eventuality, the exception, which has been attempted to be carved out by the Government Advocate is not acceptable by this Court.

17. The argument of the applicant in person pertaining to the propriety of the summoning order dated 10th March, 2014, in the context of non-applicability of mind, is a fact, which is apparent from the order itself, and which runs contrary to the principles laid down by the Hon'ble Apex Court in the judgements as reported in 1998 SC 128, M/s Pepsi Food Ltd. and another Vs. Special Judicial Magistrate and others and (2013) 4 SCC 505, GHCL 8 Employees Stock Option Trust Vs India Infoline Limited, the relevant paragraph of GHCL (Supra), is extracted hereunder:-

14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record.

....

19. In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against respondent Nos.2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. Recently, in the case of M/s.Thermax Ltd. & Ors. vs. K.M. Johny & Ors., 2012 2 SCC (Cri) 650, while dealing with a similar case, this Court held as under :-

"38. Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-Chairperson, Ex-Directors and Senior Managerial Personnel of appellant No.1 - Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role

39. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of 'vicarious liability' is unknown to criminal law. As observed earlier, 9 there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant- Company."

Which has widely laid down that every citizen of the country covered under Article 5 of the Constitution of India, has a right to enjoy a social prestige. Summoning of a person in a criminal proceedings, would amount to hampering of his social prestige, which obviously could be only possible when the Court justifies it stands necessitating the summoning of an accused person in a criminal case by assigning reasons and that too only after considering the material available before it and in the absence of the same, the summoning order would not be sustainable.

18. In that eventuality, since the summoning order itself runs contrary to the very ratio laid down by the Hon'ble Apex Court, as referred to above, that the summoning order dated 10th March, 2014, would hereby stand quashed and the C482 Application would partly stand allowed.

19. The apprehension, which has been expressed by the applicant, that owing to the conduct of respondent No.2 and the manner in which, he has been treated by the Court of law, when was confined in jail for no valid reasons despite of the fact, that the interim order continued to operate, in order to balance the equity and particularly considering the pleadings raised by him in the supplementary affidavit, that later on, he was released on bail. In an event, if the Court arrives at a conclusion that, if at all, it is necessitated to issue 10 a fresh summoning order, it would be only after assigning reasons, if it is done so, the applicant's bail application would be considered within one week from the date of his presentation without taking him in custody, owing to the earlier bail already granted to him.

20. Subject to the aforesaid, the C-482 Application partly stands allowed.

(Sharad Kumar Sharma, J.) 26.09.2022 Shiv

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Uttarakhand High Court