Allahabad High Court
Lallu Singh vs State Of Up And Anr on 21 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2697
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on: 29.09.2020
Delivered on: 21.10.2020
Court No. - 7
Case :- APPLICATION U/S 482 No. - 14399 of 2020
Applicant :- Lallu Singh
Opposite Party :- State Of U.P. and another
Counsel for Applicant :- Ajay Sengar
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
This Criminal Misc. Application under Section 482 Cr.P.C. has been filed by the applicant / Lallu Singh with the prayer to quash the entire proceedings of Gangsters Case No. 77 of 2000 (State of U.P. Vs. Lallu Singh and others) under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station Eit, District Jalaun pending in the court of Additional Sessions Judge / Special Judge (Gangster Act), Court No. 3, District Jalaun at Orai as well as the order dated 16.01.2020 passed by the Additional Sessions Judge / Special Judge (Gangster Act), Court No. 3, Jalaun at Orai in the said case with a further prayer to stay the further proceedings of the said case during the pendency of the present application.
1. Heard Sri Ajay Sengar, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A. for the State and perused the record.
2. It is contended by the learned counsel for the applicant that the order dated 16.01.2020 passed by the trial court is illegal in as much as the court below has not considered the application of discharge moved on behalf of the applicant dated 14.11.2019 which is Paper No. 105 (Kha) in the records of the trial court in the correct prospectives and has proceeded to pass the order impugned without application of mind. It is argued that a First Information Report was lodged as Case Crime No. 0253 of 1999 under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, P.S. Eit, District Jalaun on 22.08.1999 by Ram Milan, S.H.O., P.S. Kotra, District Jalaun and a Gang Chart was prepared which was duly approved by the concerned authorities in which the applicant has been shown to be involved in three cases along with two other persons namely Hukum Singh & Sahab Singh who are said to be involved in the said cases along with the applicant and some other cases which are as follows:-
(i) Case Crime No. 98 of 1997 under Sections 302, 201 I.P.C., P.S. Kotra, District Jalaun.
(ii) Case Crime No. 358 of 1998 under Sections 327, 329, 308 I.P.C., P.S. Eit, District Jalaun.
(iii) Case Crime No. 203 of 1999 under Section 323, 324, 504, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, 1932, P.S. Eit, District Jalaun.
3. It is argued while placing paragraph 17 of the affidavit in support of the Application under Section 482 Cr.P.C. that all the three cases registered and shown in the Gang Chart against the applicant have resulted into acquittal by the courts below. Paragraph 17 of the affidavit is extracted herein below:-
"17. That, so far as all the three criminal cases registered and shown in the Gang Chart against the Applicant herein are concerned, the same are resulted into the acquittal by the Learned Courts below in respect of Criminal Cases i.e. Case Crime No. 98 of 1997, u/Ss. 302/201 Indian Penal Code, 1860, P.S.- Kotra, Distrcit Jalaun, Case Crime No. 350 of 1998, u/Ss. 327,329,308 Indian Penal Code, 1860, P.S.- Ait, Distrcit Jalaun and Case Crime No. 203 of 1999, u/Ss. 323,504/506 Indian Penal Code, 1860, P.S.- Ait, Distrcit Jalaun. Thus all the said Orders of acquittal are still final. A Copy of the acquittal Orders dated 13.01.2004, 25.09.2003 & 30.10.2003 passed by the Courts below respectively is being filed herewith and marked as ANNEXURE NO.05 to this Affidavit."
4. Learned counsel for the applicant has argued that the trial court has without application of mind passed an order dated 20.10.2000 by which cognizance upon the charge-sheet has been taken and the applicant has been summoned under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, P.S. Eit, District Jalaun to face trial. It is further argued that the order impugned is bad in so far as the material relied by the prosecution being the three cases shown to have been lodged against the applicant have subsequently resulted in acquittal and as such there was no material to show that the applicant is a gangster and thus the summoning and the rejection of discharge application by the order impugned is bad in law. It is argued that the present application be allowed and the proceedings of the case as pending before the court below be quashed.
5. Learned counsel for the applicant has further argued that the applicant is facing trial since the last 20 years and there is no explanation of the prosecution for such delay and as such looking to the delay in trial the proceedings should be quashed. Paragraph 23 of the affidavit is placed for the same which reads as under:-
"23. That, the Applicant herein is facing trial since 20 years whereas there is no explanation of the prosecution for such delay. Thus he cannot be denied that there are innumerable circumstances where in view of inordinate delay caused due to intentional laches on the part of the prosecution, the Applicant therein is put into serious hardship. Our Constitution does not permit this Court to remain indifferent to this nor can it turn a blind eye. But while ascertaining this, it is necessary to adopt a cautious approach."
6. Learned counsel has relied upon the judgement of the Hon'ble Apex Court in the case of Pankaj Kumar Vs. State of Maharashtra: (2008) 16 SCC 117 in support of his argument.
7. Learned A.G.A., while supporting the order impugned has stated that there is no illegality in the said order and the grounds as raised are available to the accused in the trial as the same is his defence and as such the relief as prayed for cannot be granted under the provisions of Section 482 Cr.P.C.
8. Section 482 of the Code of Criminal Procedure, 1973 reads as follows:-
"482. Saving of inherent powers of High Court.-
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
9. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner. It is for the purpose to give effect to an order under the Court or to prevent abuse of process of any court or otherwise to secure the ends of justice. As per the settled principles of law, the powers under Section 482 Cr.P.C. have to be exercised sparingly and there can be no straight jacket formula for exercise of the said powers. If from perusal of the complaint or First Information Report, it is clear that it does not disclose any offence at all or is frivolous or oppressive or collusive on the face of it, this Court may exercise its inherent powers under Section 482 Cr.P.C. but even that too should be exercised sparingly. Time and again a caution has been given for exercising powers under Section 482 Cr.P.C.
10. The Hon'ble Apex Court in the judgement of R.P. Kapur Vs. State of Punjab: AIR 1960 Supreme Court 866 which is a locus-classicus on the powers vested with courts for quashing of proceedings has held as under:-
"6. ---------------------------------------------------------
It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no ques- tion of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question."
11. The same analogy and view has been followed and expressed in the case of State of Haryana and others Vs. Bhajan Lal and others: 1992 Supp (1) SCC 335 and many other matters. In the case of State of Haryana and others Vs. Bhajan Lal and others (supra), the Hon'ble Apex Court while referring to the case of R.P. Kapur (supra) has observed in para 85 as under:-
"85. Gajendragadkar, J. speaking for the Court while considering the inherent powers of the High Court in quashing of the First Information Report Under Section 561-A of the Code (corresponding to Section 482 of the new Code) in R.P. Kapur v. The State of Punjab (cited above) at page 393 made the following observation:-
Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person."
Further in the said judgement it has been held in paras 102 and 103 as follows:-
"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 extra-ordinary 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 formula 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 F.I.R. 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 F.I.R. or the complaint and that the extraordinary or inherent powers do no confer an arbitrary jurisdiction on the Court to act according to its whim and caprice."
12. In the present matter the First Information Report was lodged on 22.08.1999. The investigation concluded and a charge-sheet dated 30.06.2000 was submitted by the police on which vide order dated 20.10.2000 passed by Special Judge (Gangsters Act), Jalaun cognizance was taken and the accused were summoned to face trial. Charges were framed by the trial on 17.01.2018 against the accused persons. Subsequently, the applicant approached this Court by means of a petition under Article 227 being Matters under Article 227 No. 8368 of 2019 (Lallu Singh Vs. State of U.P. and another) wherein he had challenged the proceedings of the said case which was disposed of by an order dated 14.11.2019 by a co-ordinate Bench of this Court by granting an indulgence that if the applicant appears and moves an appropriate application for discharge before the court below, the same shall be decided expeditiously in accordance with law. In the period interregnum the interest of the applicant was protected by the said order. In the light of the order dated 14.11.2019 an application for discharge was filed by the applicant before the court below which was numbered as Paper No. 105 (Kha) in the records of the trial court with the prayer that he may be discharged looking to the facts mentioned in the said application which came to be dismissed vide order dated 16.01.2020 which is impugned herein.
13. The fact that the applicant has been acquitted in the cases mentioned in the Gang Chart against him has been pleaded in paragraph 17 of the affidavit (which has been quoted above) is the defence of the applicant which can very well be raised at the appropriate stage by him in the trial. The charge in the present matter has been framed on 17.01.2018 by the trial court and the application for discharge is dated 14.11.2019 which is after the framing of the charge by the trial court. Even in the case of Pankaj Kumar Vs. State of Maharashtra (supra) paragraph 14 and 15 again gives a caution for exercise of powers under Section 482 Cr.P.C. or Article 227 of the Constitution of India wherein it is held that powers under Section 482 Cr.P.C. or Article 227 of the Constitution of India have to be exercised sparingly with circumspection and in the rarest of rare cases, where the court is convinced that on the basis of material on record, allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require the proceedings ought to be quashed. Paragraph 14 and 15 of the said judgment are extracted herein below:-
"14. The scope and ambit of powers of the High Court under Section 482, CrPC or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed.
15. Although in Bhajan Lal's case, the Court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the afore- stated provisions could be exercised by the High Court to prevent abuse of process of the court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised."
14. The procedure of trial under the Gangsters Act is to be followed by the Special Judge as of warrant-case. The Special Judge is required to act according to Sections 238 to 243, 248 to 250 of the Code of Criminal Procedure, 1973.
15. Section 239 of the Code of Criminal Procedure, 1973 reads as follows:-
"239. When accused shall be discharged.--If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
16. Section 239 Cr.P.C requires the Magistrate to consider "the police report and the documents sent with it under Section 173" and, if necessary, examine the accused and after giving accused an opportunity of being heard, if the Magistrate considers the charge against the accused to be groundless, the accused is liable to be discharged by recording reasons thereof.
17. The Hon'ble Apex Court in the case of State of Karnataka Vs. M.R. Hiremath: (2019) 7 SCC 515 has again reiterated the scope of Section 239 of the Code of Criminal Procedure and held in para 25 as follows:-
"25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of T. N. v. N. Suresh Rajan13, adverting to the earlier decisions on the subject; this Court held : (SCC pp. 721-22, para 29) "29...At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
18. The Hon'ble Apex Court has in the case of State of Orissa Vs. Debendra Nath Padhi: (2005) 1 SCC 568 has in para 16 held about what material has to be considered at the stage of discharge. It is held as follows:-
"16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated in as it was taken to be well settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau, Hyderabad and Another v. P. Suryaprakasam8 where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that (emphasis supplied). The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same- whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code."
Further, in para 20 it has been held as follows:-
"20. Reliance placed on behalf of the accused on some observations made in Minakshi Bala v. Sudhir Kumar9 to the effect that in exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence is misplaced for the purpose of considering the point in issue in these matters. If para 7 of the judgment where these observations have been made is read as a whole, it would be clear that the judgment instead of supporting the contention sought to be put forth on behalf of the accused, in fact, supports the prosecution. Para 7 of the aforesaid case reads as under:-
"7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima case has been made out - as has been done in the instant case - the persons arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Sections 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence."
19. As has been held, "trial" commences only on charges being framed. The Constitutional Bench of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab: (2014) 3 SCC 92 has held as under:-
"38. In view of the above, the law can be summarised to the effect that as "trial" means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the "trial" commences only on charges being framed. Thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken."
20. In so far as the argument regarding the quashing of the proceedings on the basis of delay in trial are concerned, there is no material on record to show as to what had been in the period interregnum from the filing of charge-sheet till the framing of charge by the court. Further, in the case of Ranjan Dwivedi Vs. Central Bureau of Investigation: (2012) 8 SCC 495, Hon'ble Justice C.K. Prasad, while supplementing the judgement has held that trial cannot be terminated merely on the ground of delay without considering the reasons thereof. In the present case trial has begun on 17.01.2018 with the framing of charge. Since then the accused has been agitating for the quashing of proceedings which is evident from the fact that a petition under Article 227 of the Constitution of India was filed in the year 2019, an application for discharge was moved which was rejected by the order impugned passed on 16.01.2020 and now the present petition has been filed with the prayers as mentioned above. There is no illegality in the order impugned.
21. The factual aspects of the matter cannot be examined by this Court while exercising powers under Section 482 Cr.P.C. The cases mentioned in the Gang Chart whether have ended in acquittal or not has to be seen by the trial court while deciding the trial. The present application has no force and is thus dismissed.
22. Further, since charges have been framed in the present matter in the year 2018, the trial court is directed to expedite the trial and make an endeavour to conclude the same as expeditiously as possible without granting unnecessary adjournments to either of the parties keeping in mind the advisories issued from time to time regarding the functioning of trial courts due to the COVID-19 pandemic.
23. The Registrar General of this Court is directed to communicate this order to the concerned court forthwith through FAX for its information and necessary compliance.
24. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad before the concerned Court / Authority / Official.
25. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
26. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 21.10.2020 AS Rathore