Allahabad High Court
Nawal Kishore vs The State Of U.P And Anr. on 24 March, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 25 Case :- U/S 482/378/407 No. - 669 of 2014 Applicant :- Nawal Kishore Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- Rajendra Prasa Mishra,Salil Kumar Srivastava Counsel for Opposite Party :- Govt. Advocate,Rakesh Kumar Yadav,Santosh Kumar ALONG WITH Case :- U/S 482/378/407 No. - 3570 of 2013 Applicant :- Naval Kishore Opposite Party :- The State Of U.P Thru Principal Secy., Home Lucknow And Ors. Counsel for Applicant :- Santosh Srivastava Counsel for Opposite Party :- Govt. Advocate,Santosh Kumar Tripathi Hon'ble Aditya Nath Mittal,J.
1. Heard learned counsel for the petitioner, learned AGA for the State, learned special counsel for the State and perused the record.
2. Petition No. 3570/2013 under Section 482 CrPC has been filed with the prayer to set aside the order dated 11.07.2013 by which the cognizance has been taken against the petitioner and has been summoned to face the trial. Further prayer has been made to quash the charge-sheet dated 10.07.2013 in Case Crime No.11 of 2013.
Second petition No.669/2014 under Section 482 CrPC has been filed with the prayer to quash the impugned cognizance order dated 27.01.2014, passed in Criminal Case No.16/2013 State vs. Nawal Kishore and also to quash the impugned supplementary charge-sheet No.4-B/2014 dated 22.01.2014 arising out of Case Crime No.11/2013, under Sections 409, 420, 467, 468, 471, 120-B IPC and Section 7/13(1)(c) of the Prevention of Corruption Act, 1988.
It has further been prayed that the court below be directed to enlarge the petitioner on bail on the same bail bonds or fresh bail bonds in respect of added Section 203 IPC and Section 13(1)(e) of the Prevention of Corruption Act, 1988.
3. In the present matter, the report was lodged on 11.01.2013 in view of the findings of the disciplinary proceedings, in which it was alleged that since 02.02.2010 to 31.03.2012, the petitioner had committed forgery and also prepared false and fabricated documents by which there was financial loss to the Bank. It was also alleged that the petitioner was involved in the corrupt practices and he had misused his post and power. After the investigation, the charge-sheet was filed against the petitioner and the trial court has enlarged him on bail by order dated 21.01.2014. After the said bail order, supplementary charge-sheet has been filed against the petitioner under Section 203 IPC and Section 7/13(1)(c) of the Prevention of Corruption Act, upon which, the trial court has taken cognizance on 27.01.2014.
4. Learned counsel for the petitioner has submitted that when the cognizance had already been taken previously, the supplementary charge-sheet could not have been filed without the permission of the court and the court was not competent to take cognizance on the supplementary charge-sheet. It has also been submitted that since the petitioner has been granted bail in the grave offences then the petitioner should be enlarged on bail in the added Section also. It has also been submitted that the permission of the court has not been sought under Section 178 CrPC, therefore, the submission of supplementary charge-sheet is against the provisions of law.
5. Learned AGA has defended the impugned order and has submitted that the Code had defined the word "cognizance" and the proceedings are continuing, therefore, it cannot be said that the cognizance has been taken for the second time. It has also been submitted that under the provisions of Section 173(8) CrPC, the permission of court is not required. It has also been submitted that the petitioner has not come with the clean hands and has concealed various material facts from the court including the fact that after the order dated 29.08.2013, he had not surrendered before the Court and the matter was agitated before Hon'ble the Apex Court by way of S.L.P. and Hon'ble the Apex Court has set aside the direction to the effect that no coercive action shall be taken. It has also been submitted that after the grant of bail on 21.01.2014, the petitioner is still absconding and is not cooperating with the trial, therefore, he is not entitled for any discretion of the Court. It has also been submitted that in view of the decision of Hon'ble the Apex Court, the petition under Section 482 CrPC cannot be converted into a petition under Section 437 CrPC.
6. Learned counsel for the petitioner has relied upon Bhushan Kumar and another vs. State (NCT of Delhi) and another, (2012) 5 Supreme Court Cases 424, in which Hon'ble the Apex Court held as under:-
"In Chief Enforcement Officer vs. Videocon International Ltd. (2008) 2 SCC 492, (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as "it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code."
Learned counsel for the petitioner has further relied upon Nirmal Singh Kahlon vs. State of Punjab and others, (2009) 1 Supreme Court Cases 441, in which, Hon'ble the Apex Court has held as under:-
"An order of further investigation in terms of Section 173(8) of the Code by the State in exercise of its jurisdiction under Section 36 thereof stands on a different footing. The power of the investigating officer to make further investigation in exercise of its statutory jurisdiction under Section 173(8) of the Code and at the instance of the State having regard to Section 36 thereof read with Section 3 of the Police Act, 1861 should be considered in different contexts. Section 173(8) of the Code is an enabling provision. Only when cognizance of an offence is taken, the learned Magistrate may have some say. But, the restriction imposed by judicial legislation is merely for the purpose of upholding the independence and impartiality of the judiciary. It is one thing to say that the court will have supervisory jurisdiction to ensure a fair investigation, as has been observed by a Bench of this Court in Sakiri Vasu v. State of Uttar Pradesh and Others, (2008) 2 SCC 409, correctness whereof is open to question, but it is another thing to say that the investigating officer will have no jurisdiction whatsoever to make any further investigation without the express permission of the Magistrate."
Learned counsel for the petitioner has further relied upon Vinay Tyagi vs. Irshad Ali alias Deepak and others, (2013) 5 Supreme Court Cases 762, in which, Hon'ble the Apex Court has held as under:-
"A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2). The legislature has specifically used the expression "nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Section 173(2) has been forwarded to the Magistrate", which unambiguously indicates the legislative intent that even after filing of a report before the court of competent jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of Section 173(8). The supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law, i.e., sub-section (2) to sub-section (6) of Section 173 shall apply when the Court deals with such report."
7. Learned AGA has relied upon Ramjas Foundation and another vs. Union of India and others, (2010) 14 Supreme Court Cases 38, in which, Hon'ble the Apex Court has held as under:-
"21. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case.
22. In Dalglish v. Jarvie, (1850) 2 Mac & G 231: 42 ER 89, Mac & G at P. 238, Lord Langdale and Rolfe B. observed: (ER p. 89) "It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward."
23. In Castelli v. Cook (1849) 7 Hare, 89 : 68 ER 36, Hare at p. 94, Wigram, V.C. stated the rule in the following words: (ER p. 38) "... A plaintiff applying ex parte comes ... under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go."
24. In Republic of Peru v. Dreyfus Bros. & Co. 55 LT 802, LT at p. 803, Kay J. held as under:
"I have always maintained, and I think it most important to maintain most strictly, the rule that, in ex parte applications to this Court, the utmost good faith must be observed. If there is an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this Court the importance of dealing in good faith in the Court when ex parte applications are made.
25. The same rule was restated by Scrutton L.J. in R. v. Kensington Income Tax Commissioner (1917) 1 KB 486 (CA). The facts of that case were that in April 1916, the General Commissioners for the Purposes of the Income Tax Acts for the district of Kensington made an additional assessment upon the applicant for the year ending 05.04.1913, in respect of profits arising from foreign possessions. On 16.05.1916, the applicant obtained a rule nisi directed to the Commissioners calling upon them to show cause why a writ of prohibition should not be awarded to prohibit them from proceeding upon the assessment upon the ground that the applicant was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom, except for temporary purposes, nor with any view or intent of establishing her residence therein, nor for a period equal to six months in any one year. In the affidavit on which the rule was obtained the applicant stated that she was a French subject and resident in France and was not and had not been a subject of the United Kingdom nor a resident in the United Kingdom; that during the year ending 05.04.1913, she was in the United Kingdom for temporary purposes on visits for sixty-eight days; that she spent about twenty of these days in London at her brother's house, 213, King's Road, Chelsea, generally in company with other guests of her brother; that she was also in the United Kingdom during the year ending 05.04.1914, for temporary purposes on visits, and spent part of the time at 213, King's Road aforesaid; and that since the month of November, 1914, she had not been in the United Kingdom.
26. From the affidavits filed on behalf of the Commissioners and of the surveyor of taxes, who showed cause against the rule nisi, and from the affidavit of the applicant in reply in Kensington case (1917) 1 KB 486 (CA), it appeared that in February, 1909, a leasehold house, 213, King's Road, Chelsea, had been taken in the name of the applicant's brother. The purchase money for the lease of the house and the furniture amounted to 4000 ℓ, and this was paid by the applicant out of her own money. The accounts of household expenses were paid by the brother and subsequently adjusted between him and the applicant. The Divisional Court without dealing with the merits of the case discharged the rule on the ground that the applicant had suppressed or misrepresented the facts material to her application. The Divisional Court observed that the Court, for its own protection is entitled to say "we refuse this writ of prohibition without going into the merits of the case on the ground of the conduct of the applicant in bringing the case before us".
27. On appeal, Lord Cozens-Hardy M.R. and Warrington L.J. approved the view taken by the Divisional Court. Scrutton L.,J. who agreed that the appeal should be dismissed observed: (R. v. Kensington Income Tax Commr. (1917) 1 KB 486 (CA) "... and it has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts - facts, not law. He must not misstate the law if he can help it - the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside any action which it has taken on the faith of the imperfect statement.
28. The abovenoted rules have been applied by this Court in large number of cases for declining relief to a party whose conduct is blameworthy and who has not approached the Court with clean hands - Hari Narain v. Badri Das AIR 1963 SC 1558, Welcome Hotel v. State of A.P. (1983) 4 SCC 575, G. Narayanaswamy Reddy v. Government of Karnataka (1991) 3 SCC 261, S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, A.V. Papayya Sastry v. Government of A.P. (2007) 4 SCC 221, Prestige Lights Limited v. SBI (2007) 8 SCC 449, Sunil Poddar v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. SAIL (2008) 12 SCC 481, G. Jayashree v. Bhagwandas S. Patel (2009) 3 SCC 141 and Dalip Singh v. State of U.P. (2010) 2 SCC 114.
29. In the last mentioned judgment, the Court lamented on the increase in the number of cases in which the parties have tried to misuse the process of Court by making false and/or misleading statements or by suppressing the relevant facts or by trying to mislead the Court in passing order in their favour and observed:(Dalip Singh vs. State of U.P. (2010) 2 SCC 114 SCC pp. 116-17, paras 1-2) "1. For many centuries Indian society cherished two basic values of life i.e. 'satya' (truth) and 'ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
(emphasis supplied)
30. In our view, the appellants are not entitled to any relief because despite strong indictment by this Court in Ramjas Foundation v. Union of India 1993 Supp (2) SCC 20, they deliberately refrained from mentioning details of the cases instituted by them in respect of the land situated at Sadhora Khurd and rejection of their claim for exemption under clause (d) of notification dated 13.11.1959 by the High Court and this Court."
Learned AGA has further relied upon Bhaskar Laxman Jadhav and others vs. Karamveer Kakasaheb Wagh Education Society and others, AIR 2013 Supreme Court 523, in which, Hon'ble the Apex Court held as under:-
"46. It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court. True, there is a mention of the order dated 2nd May 2003 in the order dated 24th July 2006 passed by the JCC, but that is not enough disclosure. The petitioners have not clearly disclosed the facts and circumstances in which the order dated 2nd May 2003 was passed or that it has attained finality.
47. We may only refer to two cases on this subject. In Hari Narain v. Badri Das, AIR 1963 SC 1558 stress was laid on litigants eschewing inaccurate, untrue or misleading statements, otherwise leave granted to an appellant may be revoked. It was observed as follows:
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. That is why we have come to the conclusion that in the present case, special leave granted to the appellant ought to be revoked. Accordingly, special leave is revoked and the appeal is dismissed. The appellant will pay the costs of the respondent."
48. More recently, in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 : (AIR 2011 SC (CIV) 147 : 2010 AIR SCW 7091) the case law on the subject was discussed. It was held that if a litigant does not come to the Court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum. It was said:
"The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have a bearing on adjudication of the issue(s) arising in the case"."
8. It is settled law that powers under Section 482 CrPC is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. In the following cases, the scope of exercise of powers under Section 482 CrPC has been examined :-
In R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, Hon'ble Apex Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
1.where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
2.where the allegations in the first information report or complaint taken at their face value and acceptable in their entirety do not constitute the offence alleged;
3.where the allegations constitute an offence, but thee is no legal evidence adduced or the evidence adduced clearly or manifestly falls to prove the charge.
The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by Hon'ble Apex Court in State of Haryana Vs. Bhajan Lal, 1990(2) JIC 997 (SC): 1992 (Supp.1) SCC 335. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows:
"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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fides 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."
In M/s. Eicher Tractor Limited and others Vs. Harihar Singh and another, 2009 (1) J.I.C. 245 (SC), Hon'ble Apex Court has held as under :-
Exercise of power under Section 482 of the Code in a case of this nature is an 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 the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non protest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. 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 such 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. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations accepted in toto.
It has further been held in the above noted case that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true prospective without sufficient material.
In Harshendra Kumar D Vs. Rebatilata Koley and others, (2011) 3 Supreme Court Cases 351, the Hon'ble Apex Court has held as follows:-
"It is fairly settled now that while exercising inherent jurisdiction under Section 482 Cr.P.C. or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents ? which are beyond suspicion or doubt ? placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage."
9. The aspect that whether the direction should be issued to court concerned to consider the bail application on the same day and also to follow the law laid down in Joginder Kumar vs. State of U.P., 1994 Cri.L.J. 1981, Lal Kamlendra Pratap Singh vs. State of U.P., 2009 (4) SCC 437 and Smt. Amarawati and another vs. State of U.P., 2005 (1) AWC 416, has also been categorically dealt with in application under Section 482 No.19852 of 2013 Damodar Prasad vs. State of U.P. and another, decided on 18.06.2013 by Hon'ble Single Judge of this Court and it has been held as under:-
"18. However, in none of the cases above, it has been said by Supreme Court or this Court, at any point of time, that once a charge sheet is submitted, still an accused is entitled to be released on bail, on just asking, and the courts below/concerned Magistrate should not apply its mind to the relevant facts and circumstances which would justify whether the concerned person should be granted bail or should be detained in judicial custody. The decision in Smt. Amarawati and another (supra) says otherwise. That being so, expecting this Court to simply stay arrest while directing or permitting the person concerned to approach the court below by filing a bail application and without applying its mind to the relevant facts and circumstances in which bail can be granted, would clearly amount to travesty of justice. It would be an order not in accordance with law and without considering the relevant facts and circumstances. Such an order would clearly travel in the realm of non-application of mind. I am afraid, this Court cannot pass such an order particularly when it is declining to entertain an application under Section 482 Cr.P.C. being satisfied that a prima facie case of commission of cognizable offence has been found against accused resulting in filing of a charge sheet and now the matter must be examined by concerned Magistrate/court regarding bail etc. after considering the relevant facts and circumstances.
19. I may refer here one more aspect. The manner in which the applicant-accused pray that his arrest should be stayed, at the best can be placed at par with anticipatory or interim bail. In fact while granting an order of stay of arrest the court surpasses even those considerations which it is bound to take into account, when pass an order granting anticipatory bail.
20. Now it is well settled that even an order of anticipatory bail cannot be passed on mere asking but has to satisfy consideration of various relevant aspects in this regard. Some of these aspects have been considered recently by Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others, 2011(1) SCC 694 and in paras 122 to 138 the relevant facts and circumstances which must be considered by the Court before passing an order of anticipatory bail have been noticed in detail. Though these observations are not exhaustive but the aforesaid decision clearly lays down a law that even in passing an order on anticipatory bail, a bald, unreasoned and non-speaking order staying arrest or granting bail should not be passed as that would amount to a material illegality and irregularity and failure to exercise jurisdiction validly if relevant circumstances before passing such orders are not taken into account, weighed and assessed, and thereafter a decision is taken whether such an order would be justified or not.
21. It is true, that, several orders placed before this court, show that directions as requested by accused applicant to be issued to the court below, have been issued and in some of the cases arrest has also been stayed but unfortunately I do not find that the relevant law has been cited, considered and discussed before such directions. The ultimate direction or action of Court do not constitute a binding precedent. What is binding precedent is the ratio, i.e., the law laid down by Court. A law is laid down when an issue is raised, argued and decided. In none of the orders placed before this Court, I find that any issue, whether these directions, as sought for, should be or can be issued or are justified to be issued, considered and decided. These orders, therefore, do not constitute a precedent so as to have a binding effect under the law of precedent. "
10. In the present matter, various petitions have been filed by the petitioner including Writ Petition No.918 (MB) of 2013, Case U/s 482/378/407 No.3570 of 2013 and others. In Application No.3570 of 2013, another Bench of this Court has granted relief by order dated 29.08.2013 to the effect that in the meantime no coercive action shall be taken against the applicant. It was also provided in the aforesaid order that if the petitioner moves any application under Section 245(2) CrPC, the same shall be heard and decided by the trial court within a period of three weeks from the date of production of a copy of this order.
11. The aforesaid order was challenged before Hon'ble the Apex Court by way of S.L.P. (Crl.) No.8190/2013, in which, Hon'ble the Apex Court has held as under:-
"We have heard Mr. Luthra, learned ASG appearing for the State of U.P. We have also heard learned counsel appearing for respondent no. 1. Mr. Luthra drew our attention to judgment of this Court in State of Rajasthan vs. Ravi Shankar Srivastava (2011) 10 SCC 632, where this Court has observed that while deciding the petition filed under Section 482 of the Cr.P.C., the High Court ought not to have directed the authority that no adverse or punitive action be taken against the petitioner there in and, in fact, that was wholly unnecessary for the disposal of the criminal case. He also drew our attention to yet another judgment of this Court in Savitri Goenka vs. Kusum Lata Damani and others (2007) 14 SCC 373, where this Court has observed that the practice of converting applications filed under Section 482 of the Cr.P.C. to one for bail in terms of Section 438 or 439 of the Cr.P.C. has not been approved by it.
In light of the above view of this Court, Mr. Luthra prays that this court should set aside the direction issued by the High Court that no coercive action should be taken against respondent no. 1. Learned counsel for respondent no. 1 submitted that the judgment in Ravi Shankar Srivastava is not applicable inasmuch as that was passed after the petition under Section 482 of the Cr.P.C. was disposed of. She submitted that no fetter can be put on the High Court's power to issue appropriate directions under Section 482 of the Cr.P.C.
We are not deciding the scope of the High Court's power under Section 482 of the Cr.P.C. We are not expressing any opinion as to whether in a given case, such a direction could be issued or not but in the peculiar facts and circumstances of the case and in the light of the above judgments, we are of the opinion that the High Court ought not to have issued a direction that no coercive action should be taken against respondent no. 1. We, therefore, set aside the direction that no coercive action should be taken against respondent no. 1. It would be, however, open to respondent no. 1 to adopt appropriate proceedings, if so advised, to get appropriate relief. We make it clear that we have not expressed any opinion on merits of the case and if any application is preferred by respondent no. 1, the Court concerned shall decide it in accordance with law.
The special leave petition is disposed of accordingly."
In view of above decision in S.L.P. (Cri.) No.8190/2013 between the same parties, the petition under Section 482 CrPC cannot be converted into a petition under Section 438/439 CrPC. Accordingly, the second prayer in the petition No.669 of 2014 that the court below be directed to enlarge the petitioner on bail cannot be granted by this Court under the exercise of powers under Section 482 CrPC.
12. In Hamida vs. Rashid alias Rasheed and others, (2008) 1 Supreme Court Cases 474, the same question came before Hon'ble Apex Court that whether, in exercise of powers under Section 482 CrPC, can the High Court direct the Chief Judicial Magistrate to permit the petitioner to remain on the same bail even after conversion of case to some graver offence or some added offence. Their Lordships of Hon'ble Apex Court held as under:-
"In the case in hand, the respondents-accused could apply for bail afresh after the offence had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the respondents-accused had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition under Section 482 CrPC and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Section 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any Court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail under Section 439 CrPC, though available to the respondents-accused, having not been availed of, the exercise of power by the High Court under Section 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside."
Hon'ble Apex Court further observed as follows:-
"Before parting with the case, we feel constrained to observe that in spite of repeated pronouncements of this Court that inherent power under Section 482 CrPC should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under Section 482 CrPC, the ultimate result whereof was that the order of bail granted in favour of the accused for an offence under Sections 324, 352 and 506 IPC enured to their benefit even after the offence had been converted into one under Section 304 IPC and also subsequently when charge had been framed against them under Section 302 read with Section 34 IPC. The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail under Section 304 or 302 IPC, yet they got the privilege of bail under the aforesaid offences by virtue of the order passed by the High Court. The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 CrPC at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice".
Accordingly, the petitioner in the present case, has to adopt the procedure laid down for grant of bail under Section 439 CrPC and the direction that petitioner be permitted to remain on same bail cannot be given in this petition in exercise of powers under Section 482 CrPC.
13. So far as quashing of the charge-sheets and the cognizance orders dated 11.07.2013 and 22.01.2014 are concerned, there appears to be no legal bar for taking cognizance on the subsequent supplementary charge-sheet also. It cannot be said that on the face value of it, it does not constitute the alleged offence.
14. In Bhushan Kumar and another (supra), Hon'ble the Apex Court has made it clear that cognizance is taken of cases and not of persons. Cognizance is the judicial notice taken by the court concerned with a view to initiate proceedings in respect of such offence.
15. Section 173(2) provides that the officer incharge of the police station shall forward the report to the Magistrate empowered to take cognizance. Section 173(8) further provides as under:-
"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)".
16. In the present case, it is not disputed that the charge-sheet has been filed against the petitioner and the investigation was continuing against the other accused persons. The Investigating Officer, in this case, has filed supplementary charge-sheet for the offence punishable under Section 203 IPC and Section 13(1)(e) of the Prevention of Corruption Act. In view of the provisions of Section 173(8) CrPC, prior permission or sanction of the Court is not required to submit the supplementary charge-sheet.
17. As the investigation in the matter against other co-accused was already going on, therefore, no further permission of the court was required even in view of Nirmal Singh Kahlon (supra). So far as law cited by the learned counsel for the petitioner in Vinay Tyagi (supra) is concerned, Hon'ble the Apex Court has held that the investigating agency is competent to file supplementary report to its primary report in terms of Section 173(8) and it unambiguously indicates the legislative intent that even after filing of a report, the Investigating Officer can still conduct further investigation and can file supplementary report too.
18. It is true that the cognizance of offence has to be taken on the basis of evidence on record. In case, the supplementary charge-sheet is filed for some other offences, then re-cognizance of the matter is not required because the cognizance has already been taken. In the present matter, learned trial court has taken the cognizance again regarding some added sections. At the most, it may be called an irregularity, but it is not such an irregularity, which may vitiate the trial and is very well covered by the provisions of Section 460(e) of the Code of Criminal Procedure. Moreover, the charges are to be framed on the basis of evidence on record and the trial court is not bound to frame the charges for the sections mentioned in the charge-sheet. While framing the charge, the court has to consider the evidence on record and is also empowered to frame the charge regarding the sections of particular Act which has not been mentioned in the charge-sheet. Moreover, the court also possesses power to add or alter the charge at any stage before the judgment is pronounced. In view of these provisions of Code of Criminal Procedure the subsequent cognizance for the added sections cannot be said to be illegal.
In view of above, there is no legal bar to file the supplementary charge-sheet in the present matter, therefore, I do not find any illegality in submitting the subsequent charge-sheet.
So far as the subsequent cognizance dated 27.01.2014 is concerned, learned court below has assigned reasons after perusal of the case diary and in continuation of the previous proceedings has further taken cognizance on the supplementary charge-sheet, which is also not illegal in any way. When any supplementary charge-sheet is filed, certainly, the court has applied its mind on the additional facts and all the cumulative effects as well as evidence has to be considered at the time of framing of the charge. Therefore, I do not find any illegality or irregularity in the impugned cognizance order dated 27.01.2014.
As far as the prayer in Petition No.3570 of 2013 is concerned, the Court has passed in order of cognizance on the basis of evidence on record and has accordingly summoned the petitioner to face the trial. In view of the settled position of law laid down in R.P. Kapoor's case (supra), M/s. Eicher Tractor Case (supra) and Harshendra Kumar D. (supra), the allegations of F.I.R. consulate the cognizance offence alleged and they cannot be said to be absurd or unprobable. There also do not appear any mala-fides or that the proceedings have been initiated for ulterior motive for wreaking vengeance on the petitioner. Moreover, in view of Harshendra Kumar D. (supra), it is not proper for this Court to consider the defence of the petitioner at this stage. Therefore, there appears to be no reason to interfere in the aforesaid cognizance orders.
So far as the fact that the petitioner has not come with clean hands, I do not intend to enter into this controversy because on its merits, both the petitions under Section 482 CrPC are liable to be dismissed.
In the aforesaid facts and circumstances, I do not find any sufficient ground to quash the impugned cognizance orders dated 11.07.2013 and 27.01.2014 as well as the charge-sheet and the supplementary charge-sheet dated 10.07.2013 and 22.01.2014.
Both the petitions are dismissed. However, if the petitioner moves an application for bail in the subsequent added sections before the court concerned, the same shall be considered and disposed of in accordance with law by the court below.
Interim orders, if any, stands vacated.
Order Date :- 24.3.2014 Rakesh/-