Allahabad High Court
Nitya Nand Dubey, Chairman ... vs State Of Uttar Pradesh, Station House ... on 28 April, 2006
Author: Amar Saran
Bench: Amar Saran
JUDGMENT Amar Saran, J.
1. This Criminal Misc. Application was filed by the applicant Nitya Nand Dubey, who was the Chairman of the Vindhyavasini Gramin Bank, Head Office, Mirzapur, for staying his arrest in case No. 55 of 1999 Hinch Lal v. Chairman, Vindhyavasini Gramin Bank and Ors. under Sections 323, 504, 506(2), 352 IPC and Section 3(1)(x) of S.C./S.T. Act.
2. The case was initiated on an application dated 11.2.1999 under Section 156(3) moved by the informant Hinch Lal of the Code of Criminal Procedure before the C.J.M. Sonebhadra. On this application an order was passed by the C.J.M on 11.2.1999 directing the S.H.O., P.S. Karama or a subordinate officer to register the F.I.R. and to investigate the criminal case and to apprise the Court of the results of the investigation.
3. The allegations in the application under Section 156(3) Cr.P.C moved by Hinch Lal were that he was a person belonging to the Scheduled Caste, and was working as a Clerk/Cashier in Imalipura (Phoolwari) branch of the Vindhyawasini Gramin Bank, district Sonebhadra. On 8.2.1999 at about 2 p.m., when the informant had disembarked from a bus at the Robertsganj Bus stand along with his brother Shyam Surat and was going towards the by-pass road, he was accosted by the applicant, who was the Chairman of the Vindhyavasini Gramin Bank and the co-accused Anil Kumar Srivastava, (appliant in the connected Cr. Misc. Appln. No. 1100 of 1999) who was the Branch Manager of the Imalipura (Phoolwari) branch of the Bank, The started hurling caste derogatory words and other abuses against the informant and threatened him that they would strip and beat him because he was trying to compn about an earlier incident against the informant dated 4.2.1999. The informant felt scared by the threats and began pleading with them, but the applicant and Anil Kumar Srivastava abused and threatened to kill him, if he took and further action. The incident was witnessed by the informant's brother Shyam Surat and Akhilesh Kumar and by other persons, who were passing by on the road, and who intervened in the matter.
4. The informant had also been abused and beaten on 4.2.1999, for which the informant had got himself medically examined at the District Hospital at Sonebhadra and had sent information in that regard by registered post to the Superintendent of Police, Sonebhadra, but the police had failed to take any action in that matter. This had emboldened the applicant and co-accused who had in consequence indulged in the incident dated 8.2.1999. As no action had been taken on the application of the informant sent to the Superintendent of Police, hence he had filed the present application under Section 156(3) of the Code of Criminal Procedure seeking appropriate action against the accused persons.
5. This Court by its order dated 20.2.2003 had quashed the order dated 11.2.1999 by holding that it was a case of malicious prosecution. Against the said order the informant Hinch Lal preferred a Special leave petition before the Hon'ble Supreme Court. The Apex Court was pleased to set aside the impugned order on 1 3.12.2004 and to remit the application for fresh decision of the High ('our, without expressing any opinion on merit. The order dated 11th February, 1999 was to remain stayed till the decision of the High Court in Criminal Miscellaneous Application No. 1101 of 1999. It was left open to the parties to agitate all pleas before the High Court. In the aforesaid order dated 13.12.2004 the Hon'ble Supreme Court has observed as below:
Leave granted.
The relevant part of the order reads as under:-
On perusal of the record, 1 am convinced that it is a case of malicious prosecution. The impugned order dated 11.2.1999 by which the appellant was summoned is hereby quashed.
Firstly, the Order dated 11th February, 1999 is not an order of summoning and secondly, as is evident from the above; no reasons have been given for quashing the said order.
The order dated 11th February, 1999 is in fact an order made under Section 156(3) of Code of Criminal Procedure directing the Station House Officer to register the case on the basis of the application of the applicant and conduct investigation. Such an order can, of course, be quashed if it is an abuse of the process of law. Whether it is an abuse or not would depend upon facts of each case. The High Court except stating that it is a case of malicious prosecution, has not said a word as to how such a conclusion was arrived at. We have not examined the merits of the case either way since we are of the view that Criminal Miscellaneous Application No. 1101 of 1999 on which the aforesaid order of quashing was passed deserves to be heard afresh and appropriate orders passed.
6. After remand by the Apex Court, Criminal Miscellaneous Application No. 1101 of 1999 has come up for consideration before me. Written arguments have been filed by the learned Counsel for the applicant, which have been taken on record.
7. The principal ground for challenging the order dated 11.2.1999 passed by the C.J.M. under Section 156(3) of the Code of Criminal Procedure was a reiteration of the earlier submission that the application under Section 156(3) Cr. P. C. was malicious in nature and that it was not possible that the applicant, who was a Chairman of the Vindhyavasini Gramin Bank, Mirazapur and the co-accused, who was the Branch Manager of Imalipura Phoolwari branch of the Bank, would behave in such a manner as described in the application.
8. It was contended that as a matter of fact a mala fide application has been moved by the informant, because he was illegally demanding money from customers for providing bank facilities. When the Branch Manager, co-accused Anil Kumar Srivastava, pulled him up and tried to check his activities and reported the matter to the applicant, the informant threatened the Branch Manager that he was a Scheduled Caste person and he would falsely implicate him in a case. He also tried to misappropriate some funds by making a false transfer voucher of Rs. 3897.47 and that on receipt of the compLaint against the informant, the applicant had written a letter to the Chairman, Head Office, Mirzapur, to start a departmental investigation against the informant. In the said inquiry the Inquiry Officer had found the informant guilty of wrong doing and suspended him on 4.2.1999. By way of counter-blast the informant had lodged the present report.
9. In his counter-affidavit the informant stated that he was being maliciously harassed by the applicant, and the Branch Manager Sri Anil Kumar Srivastava, and that he had approached the District Consumer Forum in that regard. The District Consumer Forum had passed certain favourable orders. He reiterated that true incidents had taken place on 4.2.1999 and on 8.2.1999, in which he had received injuries and he was medically examined for those injuries.
10. In my opinion, it would be premature and inappropriate for this Court to adjudicate on these questions of fact, which properly fall within the domain of the Investigating agency which has been directed to investigate this case by the order of the Magistrate dated 11.2.1999 or the trial court at the appropriate stage. The Court has only to see, if a prima facie case is disclosed and it is not concerned with the defence of the accused opposite parlies or the eventual probability of conviction on the allegations raised. Learned Counsel for the applicant has relied on a number of decisions of this Court and the Apex Court vis-a-vis Ravi Kant v. State of U.P. and Ors. reported in 2005 (1) JIC 222 (All), Jayandra Saraswati v. State of Tamil Nadu, reported in 2005 (1) JIC 193 (SC), State of Harayana v. Bhajan Lal , Madan Prasad Singh v. State of Bihar reported in 2005 Cr.L.J. 2829 and A.S. Nayal v. Khem Chand reported in 1983 ACC 264 for the propositions that in an application under Section 482 Cr. P.C. this Court can go into the question as to whether the a compLaint has been filed in a mala fide or bona fide manner, and the probabilities of conviction. In my view, the cases cited by the learned Counsel for the applicant need to be confined to their own facts. In some extreme cases where it appears to the superior Court that the case has patently been initiated with an ulterior motive for launching a false and malicious prosecution against an accused or where it is apparent to the Court, without examining the defence version set up by the accused, that there is absolutely no likelihood of conviction, then in some very rare cases, the High Court may have been entitled to short-circuit the ordinary process of investigation or trial, and quash the criminal proceedings at the initial Stage itself. But that has to be the exception, and the power was to be exercised in the rarest of rare cases, with utmost circumspection. The normal rule is that in the ordinary course the investigating agency and thereafter the trial court at the appropriate stage are only empowered to consider the reliability and credibility of the material and the question whether the prosecution was launched in a mala fide or bona fide manner. In this context it would be appropriate here to cite the following lines from paragraph 114 of State of Haryana v. Bhajan Lal , which is one of cases referred to by the applicant's counsel himself:
No doubt, there was no love lost between Ch. Bhajan Lal and Dharam Pal. Based on this strained relationship, it has been then emphatically urged by Mr. K. Parasaran that the entire allegations made in the compLaint due to political vendetta are not only scurrilous and scandalous hut also tainted with mala fides, vitiating the entire proceedings. As it has been repeatedly pointed out earlier the entire matter is only at a premature stage and the investigation is not yet proceeded with except some preliminary effort taken on the date of the registration of the case, that is, on 21-11-1987. The evidence has to be gathered after a thorough investigation and placed before the Court on the basis of which alone the Court can come to a conclusion one way or the other on the plea of mala fides. If the allegations are bereft of truth and made maliciously, we are sure, the investigation will say so. At this stage, when there are only allegations and recriminations but no evidence, this Court cannot anticipate the result of the investigation and render a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contention that the compLaint should be thrown over-board on the mere unsubstantiated plea of mala fides.
11. It may also be noted that in the present case there were even injuries on the informant, who was medically examined at the District Hospital. This fact is mentioned in the order of the Magistrate directing investigation of the offence. Likewise it is apparent that the informant acted with commendable promptitude in getting himself medically examined after the incident dated 4.2.1999 and sending an application to the Superintendent of Police for taking action. This fact is also prima facie suggestive of the genuineness of the compLaint. Thereafter, he again sent an application of the incident dated 8.2.1999 without any laxity or remissness and on the face of it, it can not be said that action was taken belatedly only with a view to cook up a false story for the purpose of falsely implicating the applicant and co-accused in this case or that the application had been filed by the informant only for the purpose of creating a defence against the order of suspension.
12. I also think the emphasis Laid by the learned Counsel for the applicant that as the applicant was an important person, a Chairman of a Gramin Bank, it was impossible for him to have acted in this manner. It may be noted that many of these appointments to posts of chairmen or other public bodies are political appointments, which are given by way of State largesse to persons who may Have served or shown favours to parties or persons in power, and the mere appointment to such posts can offer no guarantee that the holder of the post was appointed after a thorough probe into his background, and that he has no criminal antecedents or tendencies or that he is a person of irreproachable character.
13. It may further be noted that all the cases cited by the learned Counsel for the applicants are cases where cognizance had been taken and matters were pending in Courts and the cases cited did not relate to a mere order under Section 156(3) of the Code of Criminal Procedure, which only confers powers on a Magistrate empowered under Section 190 of the Code of Criminal Procedure to direct the police to investigate a cognizable case, which the police had failed to investigate, and information had been given to the Magistrate concerned under Section 156(3) Cr. P.C. by the informant about this inaction on part of the police. At this stage there is no requirement even for the Magistrate for being prima facie satisfied about the commission of an offence, as is the case when a magistrate takes congnizance under Section 190 Cr.P.C. on a compLaint or police report or on information from other sources that such an offence has been committed.
14. Sections 156 and 190 of the Code of Criminal Procedure are being quoted hereunden-
156. Police officer's power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned.
190. Cognizance of offences by Magistrates.(I) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence
(a) upon receiving a compLaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try.
15. From a pLain reading of these provisions it is apparent, that the purpose of Section 156(3) Cr.P.C. is only to call upon the police to investigate a cognizable case which it would have power to investigate, but which it has failed to investigate. Section 190 Cr.P.C on the other hand calls for a greater application of the judicial mind, as it requires the magistrate concerned to decide whether or not cognizance should be taken on a compLaint, police report or information from other sources regarding the commission of an offence. The key words in Section 190 Cr.P.C are that on receiving a compLaint of facts or on a police report or from information received from other sources that an offence has been committed a Magistrate may take cognizance of any offence. This right of the Magistrate whereby he may or may not take cognizance of an offence shows that he needs to apply his judicial mind for deciding whether or not to take cognizance of an offence. But it may be noted that even under Section 190 Cr.P.C the judicial satisfaction contemplated is a very limited satisfaction that prima facie an offence appears to be disclosed. The magistrate is not to adjudicate the issue on merits, as if he was conducting a full-dressed trial, nor is he required to form an opinion on the eventual probability of conviction at this stage. The consideration of an application under Section 156(3) Cr.P.C. is even anterior to this stage, and the court at the stage of 156(3) Cr.P.C has not even to go into the question whether a prima facie case is made out. The Court has merely to see whether the allegations disclose the existence of a cognizable offence, and if the police has failed to investigate the matter, then the Magistrate is empowered to direct investigation into the offence. Questions about the probability of conviction, or even as to whether a prima facie case is made out are ordinarily outside the scope of proceedings under Section 156(3) Cr.P.C.
16. The applicant in this case has given a defence version, that the informant Hinch Lal was accused of illegally extracting money from bank customers, falsification of accounts, and that he had been suspended after a departmental enquiry, and that the application under Section 156(3) Cr.P.C had been filed against the applicant, who was the Chairman and the Branch Manager Anil Srivastava, in a mala fide manner, as a counter-blast to the action taken against the informant. In this connection it has been clearly Laid down by the Apex Court in State of Orissa v. Debendra Nath Padhi , that the defence version put forward by an accused ought not to be considered by the Magistrate at the stage of taking cognizance or even by the trial court at the stage of framing of charges, and the defence evidence is to be considered at the appropriate stage of trial. The view taken by a two judge bench of the Apex Court in Satish Mehta v. Delhi Administration in an earlier decision that if an accused produced reliable evidence in his defence at the stage of taking cognizance or framing of charges, it could be considered by the trial court for refusing to take cognizance or for discharging the accused, was specifically over-ruled in the three judge decision in Debendra Nath Padhi. At this stage proceedings can only be quashed if the evidence that the prosecution wishes to adduce, even if fully accepted on their face value, do not show that the accused has committed a particular offence.
17. The Hon'ble Supreme Court in its order dated 13.12.2004 remitting this ease for fresh decision of the High Court, has observed that this Court has wrongly treated an order of the Magistrate directing investigation and registration of the case under Section 156(3) Cr.P.C as a summoning order. It may further be noted that the application under Section 482 Cr. P. C. was not passed for quashing the order dated 11.2.1999, but only for staying the arrest in pursuance of the said order and in spite of there being no such prayer, even the order dated 11.2.1999 appears to have virtually been set aside by this Court by the order dated 20.2.2003. This was in excess of the prayer sought by the applicant in the application. Moreover, it is questionable whether in the absence of any prayer for quashing or setting aside of the order dated 11.2.1999 directing registration of the case, the ancillary relief of staying the arrest in pursuance of the said order can be granted.
18. In this view of the matter, there is no force in this application. It is accordingly dismissed. However, the question whether the accused ought to be arrested or not in pursuance of the order directing registration of the case is a matter entirely for the discretion of the police officer investigating the case in accordance with the well settled principles of law and it is not appropriate for this Court to express any opinion, or to issue any directions in the matter.
19. As investigation of this case has been held up in view of the stay order granted by this Court as far as back on 17.4.1999, which continues to operate as per the direction of the Apex Court, the Investigating Officer is now directed to conclude the investigation expeditiously and preferably within two months.
20. The application is dismissed subject to the observations made above.