Allahabad High Court
State Of U.P. Through A.T.S. Uttar ... vs Vishwa Vijay @ Kamal And Another on 7 July, 2010
Author: Ravindra Singh
Bench: Ravindra Singh
Reserved
Criminal Misc. Recall Application No. 119854 of 2010
on behalf of Vishwa Vijay & Smt. Seema Azad
in
Criminal Misc. Application no. 9106 of 2010
State of U.P.
Versus
1.Vishwa Vijay
2.Smt. Seema Azad
Hon'ble Ravindra Singh,J.
This recall application has been filed on behalf of Vishwa Vijay and Smt. Seema Azad who are O.P. Nos. 1 and 2 in criminal misc. application no. 9106 of 2010 with a prayer that the order dated 19.4.2010 passed by this court may recalled and the case may reheard and decided in accordance with law.
Heard Sri Ravi Kiran Jain, Senior Advocate, assisted by Sri D.S.Misra and Sri Ankur Sharma, appearing on behalf of Vishwa Vijay and Smt. Seema Azad who are applicants in the recall application and are the opposite parties nos. 1 and 2 of Criminal Misc. Application No. 9106 of 2010, Sri D.R. Chaudhary, learned Government Advocate assisted by Sri A.K.Sand, learned Additional Government Advocate for the State of U.P. and perused the record.
This recall application has been filed against the order dated 19.4.2010 passed by this court in criminal misc. application (u/s 482 Cr.P.C.) No. 9106 of 2010 by which the application filed by the State of U.P. under section 482 Cr.P.C. has been disposed of by setting aside the order dated 6.3.2010 passed by the learned In-charge judicial Magistrate-1, Court No.1, Allahabad in case crime no. 37 of 2010 under sections 18/20,21/23(2) of Unlawful Activities(Prevention) Act read with sections 120-B/121/121-A I.P.C. P.S. Khuldabad district Allahabad and the learned magistrate concerned has been directed to pass a fresh order. The application filed by the I.O. for remanding the accused Vishwa Vijay alias Kamal and Smt. Seema Azad to the police custody in the above mentioned case by learned 2 magistrate. The order dated 6.3.2010 has been set aside by this Court on 19.4.2010, the matter has been remitted to the court of learned magistrate concerned and the learned magistrate concerned has been directed to pass a fresh order on the merits of the case ignoring the refusal of first application expeditiously in accordance with law without being prejudiced by the impugned order.
The matter was remanded to the court of learned magistrate concerned to pass a fresh order only on the ground that the learned magistrate has not considered the legal position including the amended provisions of section 43d(2) of the Unlawful Activities ( Prevention) Act.
The recall application has been filed on behalf of O.P. No.1 Vishwa Vijay and O.P. No. 2 Smt. Seema Azad mainly on the ground that they were arrayed as opposite parties in the aforementioned criminal misc. application. The order has been passed behind their back. The order dated 6.3.2010 passed by the learned magistrate court no. 1 Allahabad was the order by which the application of the State for seeking the police custody remand was rejected. The order dated 19.4.2010 passed by this court has sought to be recalled also on merits.
The learned counsel for O.P. Nos. 1 and 2 of criminal misc. application no. 9160 have made submission, the same has been filed in writing also, the Written submissions are quoted below :-
1. "The learned Additional Government Advocate (A.G.A.) has raised a preliminary objection that section 362 Cr.P.C. bars the application of the accused-opposite parties in this 482 Application to seek the recall of the order dated 19.4.2010. The preliminary objection is wholly misconceived.
2. Section 362 Cr.P.C. reads as under:-
"362. Court not to alter judgment - save as otherwise provided by this Code or by any other law for the time being in force, no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error".
3. The provision clearly creates a right to invoke the recall 3 of any order passed by any court in purported exercise ofthe powers under various provisions of the court inasmuch as the opening part of Section 362 Cr.P.C. itself says that the Court shall not alter any judgment after it is signed same as otherwise provided by this court or by any other law for the time being in force. It is an enabling provisions rather than the one creating a bar, if some order is passed and the recall f such order can be prayed for if it is "provided by this court" or "by any other law for the time being in force".
4. So far as the accused-applicants are concerned, they rely upon both the situations namely that their application is made as "provided by this court" and in accordance with "any other law for the time being in force".
5. "This Code" means Code of Criminal Procedure, 1973, "This Code" deals with procedural law relating to the administration of criminal justice that affects life and liberty of the person. Article 21 of the constitution of India provides that no persons shall be deprived of his life or personal liberty to except according to procedure established by law. The Supreme Court in numerous cases, some of which will be mentioned in the following paras of this written submission has held that "procedure established by law"
mentioned in Article 21 of the Constitution has to be a fair procedure. Even if some provision does not provide for an opportunity of being heard, following the principles of natural justice has to read as implicit therein, more so if the order passed affects the life and liberty of the person.
6. So far as "this code" is concerned, there is a procedure provided for the exercise of various powers by various courts like trial by the Magistrate and sessions Judge, holding enquiry, holding investigation by the police etc.
7. Similarly there is a procedure provided for hearing appeals under sections 384, 385 and 386 of the Code. Similarly a procedure is also provided for hearing Criminal Revision under Section 397 and 401(2) of the Code, as well as a reference to the High Court under section 395 of the Code. These procedures for various powers by various courts and the Investigating Agency having specifically provided, Section 482 Cr.P.C. does not provide a specific provision as is provided under the aforesaid various situation. Section 482 Cr.P.C. does not confer any new power on the High Court. It only recognizes the inherent power of a superior court.
8. By order dated 19.4.2010, this Hon'ble court has been pleased to quash the order dated 6.3.2010. The order dated 6.3.2010 was in favour of the accused-applicants. A fair procedure required that the accused-applicants ought to have been given an opportunity for being heard before any order of reversal of the same was to be passed. In this case, it has not been done.
4The Supreme Court in Maneka Gandhi Vs. Union of India reported in AIR 1978 S.C. Page 597 has held that Even if some provision does not provide for an opportunity of being heard, following the principles of natural justice has to read as implicit therein. More so if the order passed affect the life and liberty of the persons. Kindly see paras 53, 57, 58, 61 and 62 of the judgment in Maneka Gandhi's case. The copy of which is enclosed as Enclosure No. 1 to this written submission.
9. It is basic to the human right jurisprudence that any order affecting life or liberty has to be passed by following the principles of natural justice. In Kumaon Mandal Vikas Nigam Limited Vs. Girja Shankar Pant and others reported in AIR 2001 S.C. Page 24, the Supreme Court has made relevant observation in this regard which have been quoted in para 10 of the counter affidavit filed on behalf of the accused-applicants. (in para 20 of the same judgment i.e. Kumaon Mandal Vikas Nigam Limited's case), it has been observed that it is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a matter of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend, thought, however, we may hasten to add that the same is dependent upon the facts and circumstances of each individual case. For kind perusal of the Hon'ble Court para 20 of the said judgment is being extracted below:-
"20. It is a fundamental requirement of law that the doctrine of natural justice be complied with and the same has, as a mater of fact, turned out to be an integral part of administrative jurisprudence of this country. The judicial process itself embraces a fair and reasonable opportunity to defend thought, however, we may hasten to add that the same is dependent upon the fact and circumstances of each individual case, the facts in the matter under consideration is singularly singular. The entire chain of events smacks of some personal clash and adaptation of a method unknown to law in hottest of haste; this is however, apart from the issue of bias which would be presently dealt with hereinafter, it is on this context, the observations of this court in the case of Sayeedure Rehman Vs. The State of Bihar, (1973) 3 SCC 333: (AIR 1973 SC 239: 1973 Lab IC 197) seem to be rather apposite. This court observed (para 7):
"The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order, dated April 22, 1960, is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi- judicial authorities when deciding controversial points 5 affecting rights of parties."
In reply to the submission made by the learned counsel for O.P.Nos. 1 and 2 it is submitted by the learned Government Advocate that the recall application is not maintainable in view of the provisions of section 362 Cr.P.C. section 362 Cr.P.C. read as under:
"362. Court not to alter judgement- Save as otherwise provided by this Code or by any other law for the time being in force, no court when it has signed its judgment or final order disposing of a case, shall after or review the same except to correct a clerical or arithmetical error."
To recall the order dated 19.4.2010 passed by this court, thereafter to pass a fresh order is amounting to alter or review the final order disposing of the case, which is barred by the provisions of section 362 CrP.C., in support of this submission following cases have been cited. 1) State of Kerala Versus M.M. Manikantan Nair,2001, S.C.C.(Criminal) 808, Sunita Jain Versus Pawan Jain and others(2008) 1 S.C.C.(Criminal) 537, Hari Singh Mann Versus Har Bhajan Singh Bajwa and others 2001 S.C.C.(Criminal) 113.
It is further submitted by the learned Government Advocate that the order dated 19.4.2010 may not be recalled on the ground that opportunity of being heard was not afforded to O.P. Nos. 1 and 2, who were arrayed as opposite parties in the application under section 482 Cr.P.C. The application under section 482 Cr.P.C. has been filed by the State of U.P. for obtaining the police remand of O.P. Nos.1 and 2 that is why they were arrayed as O.P. Nos.1 and 2, they are the accused in case crime no. 37 of 2010 P.S. Khuldabad district Allahabad, investigation is pending against them, the provisions with regard to the investigation are incorporated in Chapter XII of the Code of Criminal Procedure, 1973, but there is no provision to afford the opportunity of being heard to accused for obtaining the order of for remand for judicial custody in police custody, even at the stage of the collection of the material under section 157 Cr.P.C., to make out a prima facie case, for a fully-fledged inquiry the rule of Audi 6 Alteram Partem can not be invoked by the accused. The accused is not entitled to have any say against the manner and method of investigation, the hearing to the accused is provided under the the Code of Criminal Procedure, under special circumstances under its Chapter XII , the provisions of Articles 21 and 22 are not attracted in the present case. The provisions of Article 21 of the Constitution of India shall be attracted where the decision/action results in violation of rule and personal liberty but such provisions are not attracted where the investigation is conducted in strict compliance with the statute. The rule of Audi Alteram Partem cannot be invoked as natural justice.
Under the scheme of Chapter XII of the Code of Criminal Procedure there are various provisions including section 167 Cr.P.C. under which no prior notice/opportunity of being heard is conferred as a matter of course to an accused person while the proceedings are in the stage of investigation by the police officer, the accused has no right to have any say with regard to the manner and method of investigation save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates in filing of a final report under section 173 (2) Code of Criminal Procedure or in a proceedings instituted otherwise than on a police report till the process is issued under section 204 of the Code as the case may be. Since the provisions are relating to the investigation under Chapter XII of the Code of Criminal Procedure, which do not confer any right or prior notice of hearing to the accused, on the other hand they are silent in this respect. The O.P. Nos. 1 and 2 have no right to be heard for passing the appropriate order with regard to grant the judicial remand/police remand, the O.P. Nos. 1 and 2 have no right to afford on application of being heard before the disposal of the application, on this ground also the order dated 19.4.2010 may not be recalled. In 7 support of this submission the decision of the apex court in the case of Union of India and another Versus W.N. Chadha 1993 SCC(Criminal) 1171 has been cited.
It is further submitted by the learned Government Advocate that for passing a fresh order for re-hearing on the merits of the case after recalling the order dated 19.4.2010 is also not legally permissible.
It is further submitted that the order dated 19.4.2010 passed by this court in exercise of the power conferred under section 482 Cr.P.C. is legally permissible, the application under section 482 Cr.P.C. is maintainable, the recall application is devoid of merit, the same may be dismissed.
Considering the facts, circumstances of the case, submission made by the learned counsel for the O.P. No.1 and 2, the learned Government Advocate, appearing on behalf of the State and after perusal of the record, it appears that the present recall application has been filed with a prayer to recall the order dated 19.4.2010 passed by this court by which the order dated 6.3.2010 passed by the learned In- charge Judicial Magistrate I, Court No.1 rejecting the application by investigating officer to remand the accused O.P. Nos. 1 and 2 to the police custody in case crime no. 37 of 2010 under sections 18/20,21,23(2) of the Unlawful Activities( Prevention) Act, 1967 read with section 120-B 121,121-A I.P.C. P.S. Khuldabad district Allahabad, has been set aside and the matter has been remanded back to the court of learned magistrate concerned for passing a fresh order in accordance with law because the amended provisions of section 43 d(2) of Unlawful Activities(Prevention) Act have not been considered by the learned magistrate concerned, the submissions made by the learned counsel for O.P. Nos. 1 and 2 with regard to the merits of the case may be considered by the court of learned magistrate concerned at the time of passing a fresh order. The order dated 19.4.2010 is final order by which application has 8 been finally disposed of, the order dated 19.4.2010 has not been obtained by playing fraud or by concealing the material facts by the State of U.P. Under the scheme of Chapter XII of the Code of Criminal Procedure relating to the investigation is also not conferring any right to the accused for prior notice of opportunity of being heard, for the purpose of passing the order with regard to remand, there is no provision to hear the accused at the stage of collection of the material under section 157 of Cr.P.C. the rule of Audi Alteram Partem cannot be invoked by the accused, the accused has no say against the manner and method of investigation, the provisions of Article 21 of the Constitution of India are not attracted at this stage, the provisions of Article 21 of the Constitution of India and the Rule of Audi Alteram Partem are not attracted where the investigation is conducted in strict compliance with the statute. The right of life of personal liberty enshrined in Article 21 of the Constitution of India safeguard, ingrained in Article 22 of the Constitution, the rule of Audi Alteram Partem is a rule of justice and its application is excluded where the rule itself leads to injustice. This rule can not be applied to defeat the ends of justice or to make the law lifeless, absurd and stultifying and self-defeating or plainary contrary to the common sense of the situation, which has been discussed by the Hon'ble Supreme Court in the case of Union of India Versus W.N. Chadha 1993( S.C.C.(Crl.)1171 in paragraphs 80,81.88.89.90.92.94 and 95, which are quoted as under.
80."The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In S.A. De Smith's Judicial Review of Administrative Action, (4th Edn.) at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (I) to (10) under the head "Exclusion of the audi alteram partem rule".
81.Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This 9 rule can not be applied to defeat the ends of justice or to make the law 'lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation" and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.
88. The principles of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.
89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under section 173(2) follows in a trial before the Court or tribunal pursuant to the filing of the report, it can not be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion of its attraction exists at all.
90. Under the scheme of Chapter XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under section 173(2) of the Code or in a proceeding instituted otherwise then on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue to process is postponed as contemplated under section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under 10 the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
94. Under section 235(2), in a trial before a Court of Sessions and under section 248)2) in the trial of warrant-cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.
95.It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make a search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to anyone or any opportunity of being heard. The basis objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused can not claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law."
` The view taken by the Hon'ble Supreme Court in the above mentioned case and the provisions of Chapter XII of the Code of Criminal Procedure, do not confer any right of prior notice of hearing to accused (O.P. Nos.1 and 2) when the investigation is pending they were having no right of prior notice of hearing, they were formally made the opposite parties in criminal misc. application no. 9104 of 2010 only because the remand of police custody was sought by the I.O. against them, in such situation the hearing of O.P. Nos.1 and 2 was not legally required as a right, the same principle shall be applicable if the order refusing the remand for police custody is challenged in the high court, in the present case also the order dated 6.3.2010 refusing the prayer for remanding the accused to police custody has been challenged, the order dated 6.3.2010 has been set aside vide order dated 19.4.2010 passed by this court and the application under section 482 Cr.P.C. has been disposed of finally and the matter has been remanded back to the court of learned 11 magistrate concerned to pass a fresh order, the order dated 19.4.2010 cannot be recalled on the ground that O.P. Nos. 1 and 2 have not been afforded any opportunity of being heard.
The order dated 19.4.2010 has been passed by which the order dated 6.3.2010 passed by the In- charge learned Judicial Magistrate I, Court No.1 Allahabad has been set aside and the matter has been remanded to the court of learned magistrate concerned to look into the matter and to pass a fresh order in accordance with law, the order dated 19.4.2010 has been passed after considering the facts and circumstances of the case, there was no concealment of material fact, the order 19.4.2010 has not been obtained by the applicant by misguiding the court or by playing the fraud upon the court, the order dated 19.4.2010 may not be recalled for hearing this matter again on merits in light of the provisions of section 362 Cr.P.C., according to section 362 Cr.P.C. "no court when it has signed its judgement or final order disposing of the case shall alter or review the same except to correct a clerical or arithmetical error, "on this ground also, the order dated 19.4.2010 passed by this court cannot be recalled.
In view of the above discussion,I came to the conclusion that there is no good ground to recall the order dated 19.4.2010 passed by this court, the prayer for recalling the order dated 19.4.2010 is refused and interim order dated 23.4.2010 passed by this court by which the learned magistrate concerned has been directed not to pass any effective order on the remanding application in case crime no. 37 of 2010 P.S. Khuldabad district Allahabad, is hereby vacated.
Accordingly the recalled application is rejected.
DT.7.7.2010 NA