Allahabad High Court
Praveen Kumar And Another vs State Of U.P. And Others on 13 November, 2019
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 64 A.F.R. Case :- APPLICATION U/S 482 No. - 9184 of 2002 Applicant :- Praveen Kumar And Another Opposite Party :- State of U.P. and Others Counsel for Applicant :- Samit Gopal,G.S. Chaturvedi,Gopal Chaturvedi,Viresh Mishra Counsel for Opposite Party :- Govt. Advocate, Govind Saran, Manish Tiwari Hon'ble Karuna Nand Bajpayee,J.
This application u/s 482 of Cr.P.C. has been preferred by applicants Praveen Kumar and Vijai Shankar Mishra for quashing of the order dated 25.9.2002 passed by the court of Additional Chief Judicial Magistrate, Court No.9, Allahabad whereby Misc. Application No.172/XII/2002 (Ram Surat Pasi vs. Vijai Shankar and another), P.S.-George Town, District-Allahabad, moved on behalf of opposite party no.2 u/s 156(3) Cr.P.C. was allowed and directions were issued to lodge the F.I.R. and to investigate into the matter and submit report of investigation before the Court.
It appears that after filing of this petition the operation of the impugned order was put in abeyance. Eventually the matter has come up now to be heard and decided finally.
Short counter affidavit filed on behalf of opposite party no.2 today in the court, is taken on record.
Heard Shri Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Shri Imran Ullah, Advocate appearing on behalf of applicants and Shri Ankit Saran, Advocate assisted by Shri Atharva Dixit, Advocate holding brief of Shri Manish Tiwari, learned Senior Counsel appearing on behalf of opposite party no.2. Learned A.G.A. has also been heard and record has been perused.
Brief facts, as emerge from the pleadings, are that the applicant no.1 was working as S.D.M. (Sadar), Allahabad at the relevant point of time and the applicant no.2 was working as Nayab Tehsildar (North) in the office of applicant no.1. In the year 2002, the applicant no. 1 after being selected in the Indian Police Service (I.P.S) was waiting for his appointment and training schedule for the same. According to the pleadings, there was a land of high economic worth being Plot No.408 (admeasuring about 10 bighas) in Mauza Fatehpur Bichhua, Pargana and Tehsil Sadar, District-Allahabad, which had market value of Rs.16 crores at the time of filing of this petition in the year 2002. The said piece of land being nazul land was a government property and as such, it could not have been sold or purchased by anyone without proper sanction of the State Government. The pleading of the instant petition reveals that the land in question is situated in the midst of the city in posh prime locality of George Town, Allahabad. It has also been pleaded in this petition that the said 10 bighas of land having plot no.408 had a long lineage of history and the ownership thereof along with other lands (total 509 bigha and 6 biswa) travelled from Ex-Zamindar Maharaja Sewai Ram Singh of Jaipur up to the State Government and ultimately it was being managed, controlled and governed by the Board of Revenue and the land of said Gata No.408 along with other gata numbers was transferred to the Municipal Board vide order No.2125N/XI-868, dated 04.08.1911. The land in question i.e. approximately 10 bighas land of Gata No.408 was entered into the register of government property (nazool) as 'pond' at serial no.16 having entry of transfer of land by the Board of Revenue. Subsequently when certain unscrupulous persons made efforts to illegally trespass and possess the land in question, a report about the status of land was called by the District Magistrate, Allahabad from the Additional District Government Counsel (Civil), Allahabad namely Maya Shankar Srivastava, who submitted report dated 07.09.1999 with an opinion that along with certain legal formalities, the possession of land in question is liable to be resumed by the State Government in the interest of the Government of Uttar Pradesh.
It has also been pleaded in this petition that the Chairman, Board of Revenue circulated a letter No.G865/5-9-R/2001 dated 24.01.2002 to all the Commissioners and District Magistrates of State of U.P. giving the reference of Hon'ble Supreme Court decision given in the case of Hinch Lal Tiwari vs. Kamla Devi and others reported in 2001 (92) RD 689 (SC) with specific instructions that the public lands be secured, managed and maintained by the Revenue Departments as well as the State Government to maintain ecological balances. Yet another government order No. 3135/1-2-2001 Rajaswa dated 08.10.2001 was also circulated by the State Government to all the District Magistrates of State of U.P. to ensure compliance of the judgment of Hinch Lal Tiwari's case (supra) having observation about removal of illegal possessions from such lands of public utility as well as land of ponds. It has been further pleaded in the petition that applicant no.1 wrote several letters to the Vice Chairman, Allahabad Development Authority; Commissioner Allahabad; S.S.P. Allahabad and the District Magistrate, Allahabad as well as the Board of Revenue and the State Government showing grave concern about illegal grabbing of State land causing huge losses to the government exchequer and about illegal constructions upon such State lands.
In the petition, two letters dated 05.08.2002 and 06.09.2002 have been annexed as Annexure No.5 to the petition. In the letter dated 06.09.2002, the concern about the land of Plot No.408 i.e., the land in question, was specifically expressed and mentioned. Subsequently the District Magistrate, Allahabad also wrote a letter to the Commissioner, Allahabad on 07.09.2002 in respect of safety and security of land in question and also in respect of unauthorized construction thereupon.
According to the pleadings of the petition and the Annexure no.7 thereof, it is revealed that applicant no.1 had passed order dated 27.08.2002 in Case No.138 of 2002 u/s 33/39 of Land Revenue Act in connection with the land of plot no.408, Mauza Fatehpur Bichhua, Pargana and Tehsil Sadar, District-Allahabad, whereby it was ordered that the land in question be entered into the name of State Government in the revenue record and in continuation thereof, the applicant no.2 submitted report dated 24.09.2002 to the In-charge Inspector Police Station Colonelganj, Allahabad for lodging of first information report against several persons including concerned Lekhpals and Revenue Inspectors for committing cheating and forgery in the revenue records in connection with the land of Plot No.408 i.e. the land in question.
It has also been pleaded in the petition that First Information Report was got lodged on 25.09.2002 and was registered as Case Crime no.361 of 2002 u/s 419, 420, 466, 467, 468, 470 and 471 I.P.C., P.S.-Colonelganj, District-Allahabad. According to the pleadings, certain civil suits and writ petitions were instituted by a few persons in which orders were passed by the concerned courts as well as High Court in the form of status-quo to be maintained on the land in question. It has also been pleaded in the petition that no layout plan was ever passed by any authority and no map for raising construction over the land in question was ever submitted by any person, despite which certain persons were trying to raise illegal constructions over the land in question and in view of the provisions of Urban Planning Act, 1973, the Allahabad Development Authority issued notices to such persons for demolition of existing construction.
It has also been pleaded in the petition that one Mr. Subhash Chandra Bose (opposite party no.3 in the present petition) was posted as Additional District and Session Judge in the judgeship of Allahabad since last several years and had purchased a piece of land which was part of the land in question by means of a sale-deed executed on 15.02.1999 for a sale consideration of Rs.53,000/-, whereas the cost of land was shown in the deed as Rs.4,21,000/-. Mr. Subhash Chandra Bose also purchased a disputed land in the name of his wife Smt. Madhuri Srivastava by surreptitiously showing her identity, not as his wife, but as Km. Madhuri d/o Shri Gopal Narayan Srivastava. According to the pleadings of the petition, the applicant no.1 was directed by the superior authorities to remove the illegal constructions over the leased land of the State Government and in continuation of such exercise by the applicants, the constructions over two plots purchased by opposite party no.3 were obstructed and as such, being indignated the opposite party no.3 evolved an evil design in order to blackmail, harass and pressurize the applicants as well as other government officials and with such ulterior oblique motive and a disingenuous modus operandi, one Original Suit No.1054 of 1998 was got filed by Mr. Subhash Chandra Bose in his own court through one person namely Munna seeking the relief of permanent injunction and in the said original suit, authorities of U.P. State Road Transport Corporation were impleaded as defendant no.1 and 2 and Smt. Madhuri Srivastava w/o Shri Subhash Chandra Bose himself was also impleaded. Mr. S.C. Bose also purchased a house situated at Muirabad from the scheme developed by the Allahabad Development Authority and in this manner, the opposite party no.3 Mr. S.C. Bose started misusing his official position being a judicial officer posted in the judgeship of Allahabad itself. As the applicants being officers of District Administration and Revenue Department were creating hindrance and putting a spanner in the unfair design of Mr. S.C. Bose, he got a contempt petition filed in his own court in the name of Sri Dhara Singh, Advocate which was numbered as Contempt Petition No.21 of 2002, wherein notices were issued to the applicants as well as the Secretary, Allahabad Development Authority and other officers. Those notices for contempt were issued by Mr. S.C. Bose in the capacity of Additional District Judge-XII, Allahabad.
It has also been pleaded in this petition that the opposite party no.3 in furtherance of his vicious design got one application dated 16.9.2002 u/s 156(3) Cr.P.C. filed in the court of Chief Judicial Magistrate, Allahabad through the opposite party no.2, who is admittedly said to be none else than an employee of aforesaid Sri Dhara Singh Advocate making absolutely baseless and imaginary allegations against the applicants. In the said application dated 16.9.2002, it was alleged that opposite party no.2 being Pasi by caste belongs to scheduled caste category and was raising construction on behalf of Dhara Singh, Advocate and Munna Pandey, Advocate over Plot No.408/2 Fatehpur Bichhua, P.S.- George Town, Allahabad, during which, on 12.9.2002 the applicant no.1 Praveen Kumar and applicant No.2 Vijai Shankar Mishra along with 7-8 unknown persons in plain dress came on the spot and started beating the laborers of opposite party no.2 and upon being objected, the opposite party no.2 was abused and beaten up and was also threatened with dire consequences. It was also alleged in the said application that the damage to the tune of Rs.10,000/- was caused and an amount of Rs.5000/- was snatched away by the applicants and the report was not lodged by the concerned police station George Town under the influence of the applicants.
It has also been pleaded in this petition that upon this application dated 16.9.2002, a report was called by the court of Chief Judicial Magistrate, Allahabad from the concerned police station, whereupon the Station House Officer started inquiry about the contents of application dated 16.9.2002 and approached the applicant no.2 to ascertain the factual status. The applicant no.2 submitted a written reply to the allegations made by opposite party no.2 before the Station House officer, Police Station-George Town, Allahabad on 24.9.2002. Upon this, the Station House Officer made efforts to get the version of opposite party no.2 but an incident of terrorist attack on the temple in State of Gujrat took place on 25.09.2002, because of which a high alert was made all over the country and some political party had claimed for entire Bharat Band on 26.09.2002. Under such eventuality, the Station House officer, George Town appeared before the A.C.J.M.-VIII, Allahabad and prayed for two days' further time for submitting his report by disclosing that the opposite party no.2 could not be contacted despite best efforts and before submitting any report, it would be proper to obtain his version also. Despite application moved by the Station House officer seeking only two days' further time to submit report, the court of Additional Chief Judicial Magistrate, Court No. IX, Allahabad without granting any time passed the impugned order dated 25.09.2002 in questionable haste, whereby application moved on behalf of opposite party no.2 u/s 156(3) Cr.P.C. was allowed and the Station House officer, P.S. George Town was directed to lodge the F.I.R. and to investigate into the matter and submit report of investigation before the Court. This order dated 25.09.2002 is being challenged by the applicants.
The applicants have also filed a supplementary affidavit dated 26.09.2019, in which averments have been made to the effect that the F.I.R. lodged by the applicant no.2 on 25.09.2002 and registered as Case Crime No.361 of 2002 was challenged by one of the accused namely Ram Prasad Singh before the Division Bench of this Court in Criminal Misc. Writ Petition No. 5969 of 2002, which was disposed of finally by means of order dated 11.10.2002 and while disposing of the writ petition, the Division Bench of this Court took a serious view of the matter and noted the fact about the valuable land worth crores of rupees and involvement of high officials in the land grabbing scam and with such observations, the Division Bench of this Court entrusted investigation of said criminal case to the Central Bureau of Investigation and directed the Senior Superintendent of Police, Allahabad to hand over all the papers relating to aforesaid case to the C.B.I. for investigation and even a direction was issued to the C.B.I. to submit report about the progress of investigation up to 16.12.2002.
It has also been stated in the supplementary affidavit that after taking over of the investigation, the C.B.I. registered a case as R.C.No.14(A)/2003 and after completing investigation in compliance of the order of this Court, the C.B.I. submitted charge sheet dated 18.01.2006 against the accused persons including aforesaid Dhara Singh Advocate before the concerned court of Lucknow Judgeship and subsequently the trial of said criminal case was registered as Case No.15 of 2007 (C.B.I. vs. Kamal Narayan Mishra and others) and recently applicant no.2 was also called for his deposition before the trial court by means of notice dated 22.08.2019. In compliance of said notice the applicant no.2 has appeared before the trial court and deposed as prosecution witness being P.W.-3 on 06.08.2019 and 28.08.2019 and his cross-examination is to be done on the next dates. It has also been stated in the said supplementary affidavit that against the show cause notice issued by Sri S.C. Bose in the capacity of Additional District Judge on 13.9.2002, both the applicants had preferred Civil Misc. Writ Petition No.42396 of 2002 before this Court which came up for admission on 30.09.2002 and after considering the facts of the case, this Court vide order dated 30.9.2002 was pleased to make prima facie observation about malafide and oblique intent of Shri S.C. Bose in following words:
"The cognizance taken by Shri S.C. Bose prima facie appears to be malafide and for some oblique purpose".
In the short counter affidavit filed on behalf of opposite party no. 2 i.e. the complainant, it has been stated that he had filed the application under section 156(3) of Cr.P.C. under some misconception on the basis of hearsay information and he does not want to prosecute the applicants any further and assures this court that he will not file further litigation or complaint against the applicants in any manner whatsoever before any forum or the court of law with regard to issue involved in present matter. He has also stated in his short counter affidavit that the application is bonafide and has been filed in the interest of justice.
With aforesaid factual backdrop, Mr. Gopal Chaturvedi learned senior counsel appearing for applicants has submitted that the applicants being upright officers were faithfully imparting their official duties in connection with the land in question and the case in hand is a classic example of malicious prosecution brought against them as an arm twisting contrivance in order to cause sheer harassment of upright officers for committing no offence whatsoever so that they may not pursue the matter against the wrong doers in right earnest. It was further urged before the Court that in a matter like this even if a regular F.I.R. had been lodged by police on its own at the instance of the complainant, the same would have overwhelmingly deserved to be quashed by this Court in view of the law laid down by Hon'ble Supreme Court in the case of State of Haryana and others vs. Bhajan Lal 1992 (Supp.1) SCC 335. Further submission is that in any case, the learned court below was obliged to consider the applicability of section 197 of Cr.P.C. before passing the impugned order in view of law laid down in Anil Kumar vs. M.K.Aiyappa, (2013) 10 SCC 705 and L. Narayana Swamy vs. State of Karnataka, (2016) 9 SCC 598, according to which sanction for prosecution of applicants by the competent authority was a mandatory requirement in the circumstances of the case. Mr. Gopal Chaturvedi learned senior counsel, while placing reliance upon the documents filed in support of factual background of the controversy in question, has submitted that the documents appended with the petition and supplementary affidavit are of unimpeachable nature, most of them being official documents or documents forming part of court's record, and are liable to be considered and deserve to be seen by this Court for adjudication over controversy in hand. Further submission is that the abuse of process of the court and miscarriage of justice is apparent on the face of record and in case, this court does not come forward to the judicious rescue of applicants, it would be a travesty of justice, especially in view of the fact that the opposite party no. 2 i.e. the complainant himself does not want to proceed with his complaint. In support of submissions, various case-laws have been cited, which may be dealt with accordingly at appropriate stage.
Mr. Ankit Saran, Advocate appearing on behalf of opposite party no.2, in the light of short counter affidavit has supported the submissions made on behalf of the applicant and submits that the impugned order may be quashed and his client does not wish to pursue the matter anymore.
Learned A.G.A. has also not disputed the factual and legal submissions made on behalf of the applicant. However, he has pointed out that the proposed accused lack locus standi to challenge order passed under section 156(3) of Cr.P.C. and as such, the criminal misc. application is not maintainable. Reliance was placed on the case of Father Thomas vs. State of U.P, (2000) 41 ACC 435.
In rejoinder reply, Mr. Gopal Chaturvedi learned senior counsel has submitted that the position of law with regard to Locus Standi of proposed accused to challenge order passed under section 156(3) of Cr.P.C. needs to be seen in the light of various pronouncements of Hon'ble Supreme Court given in Anil Kumar's case (supra) and L. Narayana Swamy's case (supra) as well as in the cases of Manharibhai Muljibhai Kakadia & Anr vs. Shaileshbhai Mohanbhai Patel & Ors, 2012 (10) SCC 517 and Priyanka Srivastava and another vs State of U.P. and others, (2015) 6 SCC 287, and when we juxtapose the obiter and ratio of these Apex court's pronouncements against the view taken in the case of Father Thomas (supra) which circumscribes the rights of proposed accused, the embargo imposed upon the locus standi of the proposed accused for the purposes of challenging the order passed against him u/s 156(3) Cr.P.C., gets automatically lifted. Contention is that if the impugned order suffers from some illegality per se or in case the order has been passed without acquiring necessary jurisdiction to pass such order, such an illegality cannot be allowed to perpetuate or exist and any view to the contrary would be tantamount to putting the crown of infallibility upon an order which has been passed in complete violation of law. According to counsel, aforesaid pronouncements given by Hon'ble Apex Court make the procurement of sanction a mandatory requirement in matters where the alleged offences are said to have been committed in discharge of official duty and in that situation the non procurement of the same will cut at the very root of the matter and will hit adversely at the jurisdictional base of the order. If the sanction is sine qua non, a condition precedent, then it is only in the presence of the same that the court of Magistrate could have obtained necessary jurisdiction to proceed in the matter and if a particular order has been passed without procuring such jurisdiction, such kind of order shall be a nullity and cannot be allowed to exist for reasons of absence of necessary sanction in this regard. In matters like this the normal principles as have been laid down in cases which de-recognize the right of accused to challenge such order, would not come into play which only in general restrict the right or the locus standi of an accused to challenge order passed under Section 156(3) of Cr.P.C. against him in ordinary circumstances. The other limb of the argument upon which emphasis has been laid by learned senior counsel is that even otherwise the criminal misc application is liable to be entertained by this court suo moto in exercise of its inherent or revisional jurisdiction, which is a well recognized independent power and which must be used in view of glaring factual background of the case and in view of the per se illegality that has been committed by the Magistrate showing the lack of jurisdiction to pass such order in the absence of sanction which appears to be mandatory in the conspicuous backdrop and the conspicuous circumstances of the case.
In the light of rival submissions, the record of the case has been perused, which demonstrates peculiar factual history of the controversy. However, at the same time, the controversy in hand gives rise to three main issues to be answered by this court.
Firstly, whether the impugned order is vitiated by non compliance of section 197 of Cr.P.C. in view of Anil Kumar's case (supra) and L. Narayana Swamy's case (supra) and whether the impugned order passed under section 156 (3) of Cr.P.C. directing the registration of F.I.R. on the basis of complainant's application, falls within any of the categories illustrated in Bhajan Lal's case (Supra).
Secondly, in case the answer to 1st issue is in affirmative, whether this court can exercise its inherent or revisional jurisdiction at the instance of proposed accused challenging an order passed under section 156(3) of Cr.P.C. for registration of criminal case and for investigation thereof.
Thirdly, in case the answer to 1st issue is affirmative and the answer of 2nd issue in negative, whether this court can suo motu exercise its inherent or revisional jurisdiction to quash the impugned order in the light of peculiar factual history of the controversy.
To answer the first issue, it would be appropriate to observe that the record available before this court includes the main petition, its enclosures as well as the supplementary affidavit and its enclosures. The enclosures of main petition and supplementary affidavit, in order to support the averments made therein, are mostly official documents like communications between senior officers of district administration as well as their superior authorities, the reports of subordinate government officers, the government orders and circulars. In addition to this, orders of this Court and Hon'ble Supreme Court as well as copy of first information report and charge-sheet as well as the order-sheets are also enclosed with petition in support of facts stated on behalf of applicants. On the other hand, the court has before it the short counter affidavit filed by the opposite party no. 2, in which there is no paragraph wise rebuttal of the contents of main petition. In fact the counter affidavit not only does not deny any of the averments of affidavit filed on behalf of applicant, it rather contains admission of opposite party no. 2 that he had filed application under section 156(3) of Cr.P.C. under some misconception and he does not want to prosecute the applicants any further and will not proceed to any other forum or court against him.
Considering the nature of documents available before the court, the undisputed facts of the case disclose that applicants are government servants and the land in question i.e. land of Gata No. 408 (approximately 10 bighas), Mauza Fatehpur Bichhua, Pargana and Tehsil Sadar, District-Allahabad was nazul land and thus, it was a government property, for which there is an entry in the register of government property (nazool) as 'pond' at serial no.16. The applicants were duty bound to protect said government property as is unmistakably deducible in view of report dated 07.09.1999 submitted by Additional District Government Counsel (Civil), Allahabad before D.M., Allahabad, the letter dated 06.09.2002 sent by the applicant no. 1 to the D.M., Allahabad, letter dated 07.09.2002 sent by the D.M., Allahabad to the Commissioner, Allahabad as well as in view of judgment of Hinch Lal Tiwari's case (supra). The applicant no.1 had passed order dated 27.08.2002 in Case No.138 of 2002 u/s 33/39 of Land Revenue Act in connection with the land of plot no.408, Mauza Fatehpur Bichhua, Pargana and Tehsil Sadar, District-Allahabad, whereby it was ordered that the land in question be entered into the name of State Government in the revenue record and in continuation thereof, the applicant no.2 submitted report dated 24.09.2002 to the In-charge Inspector Police Station Colonelganj, Allahabad for lodging of first information report against several persons including concerned Lekhpals and Revenue Inspectors for committing forgery and cheating in the revenue records in connection with the land of Plot No.408 i.e. the land in question, in continuation to which first information report dated 25.09.2002 was also registered as Case Crime no.361 of 2002 u/s 419, 420, 466, 467, 468, 470 and 471 I.P.C., P.S.-Colonelganj, District-Allahabad. The investigation of said criminal case was transferred to the Central Bureau of Investigation vide order dated 11.10.2002 passed by the Division Bench of this Court in Criminal Misc. Writ Petition No. 5969 of 2002 and after due investigation in compliance of the order of this Court, the C.B.I. submitted charge sheet dated 18.01.2006 against the accused persons including Dhara Singh Advocate before the concerned court of Lucknow Judgeship and subsequently the trial of said criminal case has been registered as Case No.15 of 2007 (C.B.I. vs. Kamal Narayan Mishra and others), wherein applicant no.2 has appeared before the trial court and deposed as prosecution witness being P.W.-3 on 06.08.2019 and 28.08.2019 and his cross-examination is awaited.
It is also discernible that the application dated 16.09.2002 u/s 156(3) Cr.P.C. filed by the opposite party no.2 contains allegation about interference, obstruction and damage to the tune Rs. 10,000/- by applicants while construction was being raised by the opposite party no.2 on behalf of aforesaid Dhara Singh, Advocate and one another advocate on the land in question i.e. Gata No. 408 and it also contains allegation about snatching of Rs. 5,000/- by the applicants. The applicants were arrayed as proposed accused in that application showing their post held by them at the relevant point of time. In the considered view of this Court the manner in which the Additional Chief Judicial Magistrate, Court No. IX, Allahabad dealt with the matter u/s 156(3) Cr.P.C. and passed the impugned order dated 25.09.2002 is not appreciable and does not satisfy this court either about its propriety or about its correctness and leaves much to be desired.
At any rate, the least that may be said in the wake of the factual background as has been enumerated hereinbefore, the action of applicants in respect of land in question appears to be absolutely justified and was well within the four corners of their official duties and there cannot be any doubt in this regard. There is also no doubt that hindrance was being created by unscrupulous persons in performance of official duties by the applicants, who performed their duties with utmost diligence without any fear, despite there being several odds in such state of affairs, as is depicted from perusal of record. This court feels itself vindicated to observe that the uprightness of these two officers is writ large and the manner in which they performed their duties in order to save Government property is commendable. Even otherwise, all the allegations leveled against the applicants appear to be otiose and obsolete now in view of contents of short counter affidavit filed by opposite party no.2, noted above.
This Court has also cogitated upon the submissions raised by applicants' counsel based on the pronouncement of Hon'ble Apex Court given in the case of Priyanka Srivastava and another (supra) whereby he has sought to emphasize that the exercise of power u/s 156(3) of Cr.P.C. warrants application of judicial mind as it is a court of law required to act which is verily different from a police official supposed to act u/s 154 of the Code and in appropriate cases where higher officers are being embroiled as accused who normally act in exercise of their statutory functions, the judicial power ought to be exercised with circumspection and not in routine or in a cavalier manner and there ought to be an endeavour on his part to have at least a preliminary satisfaction about the possibility that the allegations made may be true. This Court has been taken through the pronouncement of of Hon'ble Apex Court given in Priyanka Srivastava's case (supra) in which while dealing with an order passed u/s 156(3) of Cr.P.C. against certain accused who were protected for action taken in good faith u/s 32 of SARFAESI Act the Apex Court proceeded to observe as follows :
"17. The learned Magistrate, as we find, while exercising the power under Section 156(3) Cr.P.C. has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C., cannot be marginalized. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156. Police officer's power to investigate congnizable 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 proceeding 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 no empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-mentioned."
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19. In Anil Kumar v. M.K. Aiyappal [3], the two-Judge Bench had to say this:
"The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
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24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. ................... .........................
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26. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
28. ...........................
29. At this juncture, we may fruitfully refer to Section 32 of the SARFAESI Act, which reads as follows :
"32. Protection of action taken in good faith.-
No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act."
30. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind.
31. In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR in case Crime No.298 of 2011, registered with Police Station, Bhelupur, District Varanasi, U.P.
32. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156(3) Cr.P.C."
It is worth mentioning at this stage that though the impugned order was passed long back much before the pronouncement of the Apex Court was given in Priyanka Srivastava's case, but as has already been referred to hereinbefore that so far as complainant's affidavit is concerned, the complainant of the present case has now filed an affidavit not in support of the allegations made in the application u/s 156(3) of Cr.P.C. but in denial of the same.
Adverting further to the law laid down by Hon'ble Supreme Court in the case of Anil Kumar's case (supra) and L. Narayana Swamy's case (supra), we find that the magistrate is expected to consider the applicability of provision of section 197 of Cr.P.C. before passing order u/s 156(3) Cr.P.C.; In this regard, the relevant part of Anil Kumar's case (Supra) is reproduced hereinbelow:-
13. Learned senior counsel appearing for the appellants raised the contention that the requirement of sanction is only procedural in nature and hence, directory or else Section 19(3) would be rendered otiose. We find it difficult to accept that contention. Sub-section (3) of Section 19 has an object to achieve, which applies in circumstances where a Special Judge has already rendered a finding, sentence or order. In such an event, it shall not be reversed or altered by a court in appeal, confirmation or revision on the ground of absence of sanction. That does not mean that the requirement to obtain sanction is not a mandatory requirement. Once it is noticed that there was no previous sanction, as already indicated in various judgments referred to hereinabove, the Magistrate cannot order investigation against a public servant while invoking powers under Section 156(3) Cr.P.C. The above legal position, as already indicated, has been clearly spelt out in Paras Nath Singh and Subramanium Swamy cases (supra).
The above quoted proposition of law has been affirmed by the Hon'ble Supreme Court in L. Narayana Swamy's case (supra).
In the present matter, there is overwhelming material available on record to demonstrate that the applicants alleged visit to spot was for the reason that unlawful encroachments or constructions had reportedly taken place there on the government property and their action on the date of incident was unmistakably within discharge of their official duty, as has already been observed herein before, and was as such so inextricably intertwined with their official obligations that the two cannot be separated and thus the provision of section 197 of Cr.P.C. is duly applicable in the matter and the magistrate could not have taken judicial notice of the complaint u/s 156(3) Cr.P.C. unless the same would have been accompanied with the requisite sanction order. Just as the Hon'ble Apex Court was pleased to make certain observations in paragraphs 29 and 30 of Priyanka Srivastava's case (supra) while it kept in perspective the protecting provision of SARFAESI Act, this Court too feels persuaded to observe that the learned Magistrate should have kept himself alive to the protecting provision of Section 197 of Cr.P.C. before directing the registration of the F.I.R. In absence of previous sanction, the impugned dated 25.09.2002 becomes extremely vulnerable and hard to sustain.
Like-wise, the law laid down by Hon'ble Supreme Court in Bhajan Lal's case (supra) enumerates certain category of cases, in which superior court may exercise its inherent or extra ordinary jurisdiction to quash the criminal proceeding. The relevant part of the case-law is quoted herein below:
"108. 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 extraordinary 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 formulae 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 F.I.R. 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 F.I.R. 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.
109. 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 not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."
Under peculiar facts of the case in hand, as discussed above, this court has no hesitation to observe that except category no. 4, all other above noted illustrations expounded in Bhajan Lal's case (Supra) are to a large extent applicable in present case. The applicants were posted as S.D.M. and Naib Tehsildar and Ms. Mayawati was the Chief Minister those days. It is impossible to imagine that these two officers in broad-day light in full public gaze for no rhyme or reason, for no vested interest of their own, would be calling names using filthy invectives not only against complainant but against their own Chief Minister, who is the highest repository of all powers. It does not need any unnecessary elaboration on the point as everybody knows that just an unfavourable frown of the Chief Minister is more than capable to ruin the career of an S.D.M. or a Naib Tehsildar. There is no reason for this Court to hold that the applicants were insane or lunatics who felt happy inviting their own doom just for the sake of it. The bare reading of the allegations made by the complainant in his application would make it manifestly clear that just in order to carve out certain offences under SC/ST Act and lend some kind of gravity and colour to the allegations and to give it a caste complexion, such absurd allegations have been levelled against the applicants. Another allegation that these officers of the district who were posted as S.D.M. and Naib Tehsildar committed a robbery and snatched away Rs.5000/- from the complainant also competes in its absurdity with the earlier allegation. This Court cannot be so gullible as to swallow such unpalatable absurdities. That seems to be the reason as to why the Hon'ble Apex Court while giving illustrations in the case of Bhajan Lal (supra), has recognized in category number-5 that it will be fit to quash the proceedings in matters where the allegations made in the F.I.R. or the complaint are 'so absurd and inherently improbable that on its basis no prudent man can ever reach a just conclusion that there is a sufficient ground for proceeding against the accused.' This Court also finds enough material on record to show as to how a number of persons which included the aforesaid Dhara Singh were involved in the unlawful encroachment and trespass over the Government property and as to how the applicants were instrumental in initiating and carrying out an assiduous campaign against such poaching offenders. One cannot miss to see that the complainant who is admittedly a man of aforesaid Dhara Singh, has been simply used to bring this complaint 'with an ulterior motive for wrecking vengeance on the applicants with a view to spite them due to private and personal grudge' and the proceedings are 'manifestly attended with malafides and have been instituted with malice.' All these features bring this case squarely within the ambit of category no. 7. It further goes without saying that non-procurement of sanction under Section 197 of Cr.P.C. would certainly bring the impugned order or the proceedings within the category no. 6. Again, if one finds enough material on record to suggest that visit of the applicants on the place of occurrence could not have been inspired by any other purpose than to impede or stop the unlawful encroachments on Government property, such an act or conduct would certainly not amount or constitute any offence which will once again bring the case in other category recognized by Hon'ble Apex Court in which the criminal proceedings against an accused would become liable to be quashed. It is also not different to see that as the alleged visit of these applicants to the spot with such officially justified purpose, did not constitute any offence, the other imaginary allegations were concocted but which cannot persuade any person of common prudence to accept them even as being plausible, much less than being true. Resultantly, the impugned order dated 25.09.2002 passed u/s 156(3) Cr.P.C. deserves to be quashed on this score too. Accordingly, the first issue is answered in affirmative.
Now the second issue comes for determination, for which the referral question and its answer observed in full bench case of Father Thomas (supra) needs to be quoted herein below:
"Referral Questions:
5.A. Whether the order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C directing the police to register and investigate is open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued?
B. Whether an order made under Section 156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973?
C. Whether the view expressed by a Division Bench of this Court in the case of Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC 435 that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is correct?
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Answer given by the Bench:
64. In this view of the matter, the Opinion of the Full bench on the three questions posed is:
65.A. The order of the Magistrate made in exercise of powers under Section 156(3) Cr.P.C directing the police to register and investigate is not open to revision at the instance of a person against whom neither cognizance has been taken nor any process issued.
B. An order made under Section 156(3) Cr.P.C is an interlocutory order and remedy of revision against such order is barred under sub-section (2) of Section 397 of the Code of Criminal Procedure, 1973.
C. The view expressed by a Division Bench of this Court in the case of Ajay Malviya Vs. State of U.P and others reported in 2000(41) ACC 435 that as an order made under Section 156(3) of the Code of Criminal Procedure is amenable to revision, and no writ petition for quashing an F.I.R registered on the basis of the order will be maintainable, is not correct."
According to the full bench case of Father Thomas (supra), the order under section 156(3) of Cr.P.C will not be amenable to challenge in a criminal revision or an application under section 482 Cr.P.C at the instance of proposed accused. Although various pronouncements of Hon'ble Supreme Court have been placed by the applicant's side in order to demonstrate that the view taken by Full Bench of this court is not now in consonance with the dicta of Hon'ble Supreme Court and the same ought to be held per incuriam, however, following the norms of judicial propriety and decorum and law of precedent, it would not be proper for this court while sitting singly to observe anything on this self framed second issue except to act on the supposition as if the second issue has been answered in negative.
To deal with the third issue framed hereinbefore as to whether this court can Suo Motu exercise its inherent u/s. 482 of Cr.P.C. or revisional jurisdiction u/s. 397 r/w. 401 of Cr.P.C. in the light of peculiar factual history of the controversy, it may be useful to recapitulate the language used in these sections. Section 482 of Cr.P.C. 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"
Subsection (1) of Section 397 is as follows:
"397. Calling for records to exercise powers of revision.--
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. Sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record."
Like-wise, Sub-section (1) of Section 401 is as follows:
"401. High Court's powers of revision.
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392."
To appreciate the Suo Motu exercise of inherent or revisional power of High Court inbuilt under above quoted provisions of law, a brief survey of few salutary representative judgments of Hon'ble Supreme Court shall be conducive, wherein various instances of Suo Motu exercise of revisional and inherent power of High Court have been examined and law in this regard has been expatiated upon.
In the case of Cricket Association of Bengal vs. State of West Bengal, 1971 (3) SCC 239, a Division Bench of Calcutta High Court, on the basis of news paper report, issued suo motu Rule (Criminal Revision under the statutory authority of section 397 read with 401 of Cr.P.C.) to the complainant and accused persons of the criminal case to show cause why the orders discharging the accused persons should not be set aside and after hearing the parties, the High Court reversed the orders passed by the Magistrate, discharging the accused. The Hon'ble Supreme Court, while examining the correctness of said judgment, set aside the judgment for certain other reasons but recognized the suo motu authority of High Court and observed in following terms: -
"16. We accordingly hold that the Division Bench was not justified in interfering with the orders dated March 20, and June 8, 1967 passed by the Chief Presidency Magistrate, in the circumstances of this case. We, however, make it clear that we have no doubt that in proper cases the High Court can take action suo motu against the orders passed by the subordinate Courts without being moved by any party."
(Emphasis supplied) Hon'ble Supreme Court in Nadir Khan v. State (The Delhi Administration), 1976 CriLJ 1721 (paragraphs 1, 4 and 5), which reads as follows:
"I am reluctant to leave this matter with the usual monomial order since the submission of the learned counsel has sought to cast an unmerited doubt on the undoubted jurisdiction of the High Court in acting suo motu in criminal revision in appropriate cases. The attempt has to be nipped in the bud.
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4. It is well known and has been ever recognized that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil, and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court as given case of public importance e.g. in now too familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon such offenders. This position was true and extant in the old Code of 1898 and this salutary power has not been denied by Parliament under the new Code by rearrangement of the sections. It is true, the new Code has expressly given a right to the State under Section 377 Cr.P.C. to appeal against inadequacy of sentence which was not there under the old Code. That however does not exclude revisional jurisdiction of the high Court to act suo motu for enhancement of sentence in appropriate cases. What is an appropriate case has to be left to the discretion of the High Court. This Court will be slow to interfere with exercise of such discretion under Art. 136 of the Constitution.
5. Section 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and had kept alive the ancient exercise of power when something extraordinary comes to the knowledge of the High Court." (Emphasis supplied) Once again the Hon'ble Supreme Court, in the case of Eknath Shankarrao Mukkawar vs. State of Maharashtra (1977) 3 SCC 25, clarified the law in respect of High Court's suo motu Revisional powers. The relevant extract of the judgment is quoted thus:
"6. We should at once remove the misgiving that the new CrPC, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under Section 397 read with Section 401 Criminal Procedure Code, 1973, inasmuch as the High Court can "by itself call for the record of proceedings of any inferior criminal court under its jurisdiction, The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code." (Emphasis supplied) Again in the case of Municipal Corporation of Delhi vs. Girdharilal Sapuru, 1981 (2) SCC 758, the Hon'ble Supreme Court elucidated the scope of High Court's suo motu Revisional power. The relevant observations made in this regard are as follows:
"5. It, however, appears that the respondents contended that the revision petition was barred by limitation. Even this contention is founded on a very technical ground that even though the revision petition was filed very much in time the requisite power of attorney of the learned advocate on behalf of the petition was not legally complete and when it was re-submitted the limitation had expired. Without going into the nicety of this too technical contention, we may notice that Section 397 of the Code of Criminal Procedure enables the High Court to exercise power of revision suo motu and when the attention of the High Court was drawn to a clear illegality the High Court could not have rejected the petition as time barred thereby perpetuating the illegality and miscarriage of justice. The question whether a discharge order is interlocutory or otherwise need not detain us because it is settled by a decision of this Court that the discharge order terminates the proceeding and, therefore, it is revisable under Section 397 (1), Cr. P. C. and Section 397 (1) in terms confers power of suo motu revision on the High Court, and if the High Court exercises suo motu revision power the same cannot be denied on the ground that there is some limitation prescribed for the exercise of the power because none such is prescribed. If in such a situation the suo motu power is not exercised what a glaring illegality goes unnoticed can be demonstrably established by this case itself. We, however, do not propose to say a single word on the merits of the cause because there should not be even a whisper of prejudice to the accused who in view of this judgment would have to face the trial before the learned Magistrate." (Emphasis supplied) In the case of Janata Dal vs. H.S. Chowdhary and Ors., (1992) 4 SCC 305, the Hon'ble Supreme Court was examining the question as to whether Mr. Justice M.K. Chawla, the then Judge of the High Court of Delhi, in exercise of inherent power, was justified in making certain observation regarding the authority of C.B.I. for launching an investigation in a criminal case and directing the office of the High Court to register a case under the title, "Court on its own motion vs. State and CBI" so that he could exercise his discretionary revisional and inherent powers to call upon the CBI and the State to show cause as to why the proceedings of criminal case be not quashed. In that case, the C.B.I. had launched and was investigating a criminal case regarding allegation broadcasted by Swedish Radio Broadcast that bribes had been paid to senior Indian politicians and key Defence figures to win the contract awarded by the Government of India to the Swedish firm for arms order. The Hon'ble Supreme Court with elaborated discussion on various legal issues quashed the latter part of the order of Single Judge whereby he had taken Suo Motu cognizance under Sections 397, 401 read with 482 of the Code issuing show-cause notice to the CBI and the State. However, the relevant part of determination of Hon'ble Supreme Court, which may be useful for present controversy, is as follows:
"125. The next question of law that comes for our consideration is the suo motu power of the High Court in exercise of its powers under Sections 190 (dealing with powers of the Magistrate to take cognizance of the offence), 397 (empowering the High Court or any Session Judge to exercise powers of revision), 401 (dealing with the High Court's powers of revision) and 482 (dealing with the inherent powers of the High Court) of the CrPC.
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128. Sections 397, 401 and 482 of the new Code are analogous to Section 435, 439 and 561(A) of the old code of 1898 except for certain substitutions, omissions and modifications. Under Section 397, the High Court possesses the general power of superintendence over the actions of Courts subordinate to it which the discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this Section, the High Court can, at any stage, on its own motion, if it so desires and certainly when illegalities and irregularities resulting in injustice are brought to its notice, call for the records and examine them. The words in Section 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate court.
129. By virtue of the power under Section 401, the High Court can examine the proceedings of inferior Courts if the necessity for doing so is brought to its notice in any manner, namely, (1) when the records have been called for by itself, or (2) when the proceedings otherwise comes to its knowledge.
130. The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some underserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case.
131. Section 482 which corresponds to Section 561A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex a liquid alicia concedit, conceder videtur id sine quo ipso, ess uon protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.
132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but 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 powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles." (Emphasis supplied) In view of above, the position of law in this regard may be summarized in following points:
The High Court possesses the general power of superintendence over the actions of Courts subordinate to it. The discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision.
The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil, and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is flagrant abuse of the law.
Section 401 expressly preserves the power of the High Court, by itself, to call for the records without the intervention of another agency and had kept alive the exercise of power when something extraordinary comes to the knowledge of the High Court. Section 401 empowers the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the regularity of any proceeding of any subordinate Court. (Emphasis supplied) The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in order to obviate or correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on one hand, or on the other in some undeserved hardship to some individual.
The High Court possesses undoubted jurisdiction to act suo motu in criminal revision and in appropriate cases, can take action suo motu against the orders passed by the subordinate Courts without being moved by any party.
Submission of counsel for appellant is that if the procurement of sanction u/s 197 of Cr.P.C. is a legal requirement then the impugned order passed by the Magistrate in absence of the same would be an order without jurisdiction and shall be per se illegal. Argument is that orders may be passed by the authorities correctly or incorrectly reaching at right conclusions or wrong conclusions by making appropriate inferences or inappropriate inferences, but the order has to be passed by the authority concerned who has the jurisdiction to pass such order. Procurement of sanction is such a necessary legal requirement in a given case with regard to certain accused who are said to have committed certain offences in the process of discharge of their official duty that non procurement of the same hits at the very root of the jurisdiction of the court to proceed further in the matter. If procurement of statutory sanction is a condition precedent or sine qua non to take cognizance of the matter or if it is a condition precedent, as per the pronouncement of the Apex Court in order to judicially proceed further in direction of making an order for registration of the F.I.R., then the absence of the same will result in a situation where the concerned court shall be lacking the necessary jurisdiction to pass that order. Such kind of orders would be non est in the eyes of law and for all practical purposes cannot be deemed to have any legal existence. Before an order may be termed interlocutory or final, revisable or not revisable, it has to be firstly an order which has been legally passed by an authority having legal jurisdiction to pass the same. If the jurisdiction is wanting, such an order will be non est and even the statutory bar which prohibits a revision in that regard will not operate. Certain authorities have been cited in order to substantiate such plea and it has been sought to be argued that the orders passed without jurisdiction can always be challenged by filing a revision even though a revision against such orders in normal circumstances might have been prohibited by the Statute for reason of being interlocutory.
Reliance in this regard has been placed on Bhima Naik And Ors. vs State, 1975 CriLJ 1923 (Orrisa), wherein the division bench of Orrisa High Court presided by the Chief Justice discussed various legal issues, while dealing with the legality, proprietary and jurisdictional correctness of an order passed under section 117(3) of Cr.P.C. calling upon the petitioners of that case to execute interim bonds. In said case, the division bench came to the conclusion that the order being interlocutory in nature is not amenable to revisional jurisdiction under section 397 of Cr.P.C. and is also not amenable to inherent jurisdiction under section 482 of Cr.P.C., however while ascertaining so, the division bench considered the issue of lack of jurisdiction, jurisdictional correctness and proprietary of the order under challenge and the division bench reached to the conclusion in following manner:
"4. In (Shri M.L. Sethi v. Shri R. P. Kapur) the meaning of the word 'jurisdiction' was fully examined. The majority view in Anisminde Ltd. (1969) 2 AC 147 was followed. Therein the absence of jurisdiction was not confined to entitlement to enter upon the enquiry in question. It was extended to subsequent error in the exercise of jurisdiction. The observations of Lord Reid may be quoted:
"But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive."
Lord Pearce made similar observations.
5. Adopting the majority view the Supreme Court observed thus:
11. The dicta of the majority of the House of Lords, in the above case would show the extent to which 'lack' and 'excess of jurisdiction have been assimilated or in other words, the extent to which we have moved away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point.
6. Both on the conclusion in AIR 1971 SC 2481 : 1971 Cri LJ 1715 that the order calling for execution of interim bond before the commencement of the enquiry is completely illegal and on the application of the concept of jurisdiction propounded in the impugned order is without jurisdiction and is a nullity.
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15. The last contention urged by Mr. Das is that the impugned order is a complete illegality and without jurisdiction as was held in AIR 1971 SC 2481 : 1971 Cri LJ 1715 and (1974) 40 Cut LT 148. Being without jurisdiction it is a nullity and is nonest in the eye of law and therefore, it is no order at all despite the fact that it was passed at an intermediate stage of the proceeding and has the physical form and shape of an interlocutory order and as such Section 397(2) is no bar for interference by this Court in exercise of its power under Section 401 or Section 482 Cri. P. C. The contention requires careful examination. The object of enacting Section 397(2) was that by coming up in revision against interlocutory orders there was delay in the disposal of criminal proceedings resulting in great harassment to the litigants. If interlocutory orders passed without jurisdiction cannot be interfered with at any earlier stage, then the harassment would be much greater and would be more oppressive. As we have already indicated, the High Court cannot invoke its inherent jurisdiction even in case of instances enumerated in. Interlocutory orders which are without jurisdiction and are nullities have no existence in the eye of law. Such orders are to be ignored. The litigants cannot escape harassment merely by ignoring them and it is why the jurisdiction of the High Court is invoked to quash such orders. Section 397(2) will have no application to such interlocutory orders which though have the form of interlocutory orders are no orders at all. On this analysis Section 397(2) will be out of the way and exercise of the power by the High Court under Section 401 or Section 482 cannot be ousted.
On the other hand if interlocutory orders are passed within jurisdiction, then they cannot be interfered with on account of the ban imposed by Section 397(2). Certain instances may be given to illustrate this concept.
An order calling for execution of an interim bond under Section 117(3) was passed after the commencement of the enquiry under Section 107, Cri. P. C. Evidence taken up to that stage may be such on which another court of fact may take a different view. The Magistrate's conclusion one way or the other cannot be interfered with in revision as he acts within jurisdiction and in exercise of such jurisdiction he might have come to a wrong conclusion on facts. Section 397(2) is a bar in the path of interference under Section 401 or Section 482.
Under Section 145, Cri. P. C. if an Executive Magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he shall pass a preliminary order in writing stating the grounds of his being so satisfied. Suppose, the Magistrate in his order writes that there was no apprehension of breach of peace and yet called upon the parties to the dispute to file written statements, the order of the Magistrate would be without jurisdiction. Such an order, though interlocutory, can be revised. A Criminal Court has no jurisdiction to deal with civil rights. The Magistrate gets jurisdiction only when there is an apprehension of breach of peace. If there is no apprehension of breach of peace there is lack of jurisdiction and the preliminary order so issued will be without jurisdiction and a nullity. In such a case if Section 397(2) will be a bar, the entire proceeding would continue till it is finally found out that the Magistrate acted without jurisdiction.
On the other hand if there was an apprehension of breach of peace, he gets jurisdiction and any interlocutory order passed by him subsequently cannot be interfered with in revision.
16. In this case the impugned order, as has already been pointed out, was passed without jurisdiction and was completely illegal and is a nullity. It is no order - much less an interlocutory order - in the eye of law. Section 397(2) will have no application to such an order. It would therefore, be open to the High Court to interfere in revision under Section 401 or 482." (Emphasis supplied) On the strength of the above noted case-law it has been sought to be argued that the general legal principle laid down in the Father Thomas case proscribing the rights of proposed accused to assail the order passed under Section 156(3) of Cr.P.C. against them, shall not come in the way in matters where the impugned order or proceedings drawn may be justly castigated for being without jurisdiction.
Another limb of the arguments is that Section 482 of Cr.P.C. is a provision which actually is in the nature of recognition of inherent power of the court and the statute is a saving clause. Section 482 of Cr.P.C. does not create inherent jurisdiction in the court but simply saves and recognizes the same. And though the exercise of such power has to be done very sparingly in rare cases but if it comes to the notice of the court that some such mighty abuse of court process is likely to affect due course of administration or where a particular order passed by the court is inevitably going to lead to misuse of government machinery and where there are apparent circumstances to conclusively demonstrate that the power exercised by the court below was not bonafide but was a colorable exercise of power which has been in all probability influenced by some unfair circumstances, the court has to come forward and exercise the same in order to stop the abuse of court's process and meet the ends of justice. The facts as have come up before the Court unerringly show as to how a particular judicial officer has been posted in a particular district who has been prima facie found to have acted in an injudicious partisan manner having vested interest of his own at the back of his mind and regarding whom even the High Court has come to a prima facie conclusion that he was inspired with malafide intentions.
This court finds reason to see that the submissions made by the applicants' counsel that there are circumstances to suggest that the impugned order was passed under the unsavoury influence of the aforesaid judicial officer, who had purchased a property in the name of his wife which was part of a land regarding which a campaign or mission was being managed by the applicants and other executive authorities in compliance of directions issued by the Hon'ble Supreme Court (so that the illegal occupations of such lands and illegal possession over such government property may be removed), is not wholly without substance or entirely without a clue. The facts of the case staring in the face are so glaring that after they having come to the notice of the court, it is simply not possible for this Court to shut the eyes and feign ignorance and not to exercise its own inherent jurisdiction as well as its own power of revision in order to adjudge and pronounce upon the legality, correctness and propriety of such an order and to secure the ends of justice and also to avert the gross abuse of court's process. This Court finds occasion to observe that even though these facts have come to the notice of the court at the instance of the applicants who are the proposed accused yet after the facts having been brought to the notice of the court, this Court on its own feel irresistibly persuaded to exercise both its powers that is to say its inherent jurisdiction and its suo motu revisional power regarding orders or proceedings of the court below.
To conclude in sum and substance, the Suo Motu authority of High Court under Section 397 read with 401 of Cr.P.C. or under section 482 of Cr.P.C. is fairly well settled and if the facts so warrant, there is no fetter on the power of this Court to obviate or correct the miscarriage of justice in an appropriate case by exercising its extensive supervisory jurisdiction under Sections 397 read with Section 401 of Cr.P.C. or its inherent power under section 482 of Cr.P.C. without being moved by any party. Accordingly, the third issue is answered in affirmative.
Resultantly, in the wake of conspicuous facts and circumstances, improprieties and illegalities committed in this matter, even if this Court acts on the supposition that the relief sought in this Criminal Misc. Application was not amenable to be entertained at the instance of the applicants, this court finds itself well equipped to examine on its own the correctness, veracity, legality and sanctity of order dated 25.09.2002 and also to examine and assuage the miscarriage of justice in the present matter caused by the order in exercise of its Suo Motu inherent and revisional power.
In totality of facts and circumstances of the case, discussed herein above and before, this Court feels that it owes an inevitable obligation to obviate, avert or heal the miscarriage of justice caused in the present matter by exercising its Suo Motu authority under Section 397 read with 401 as well as under section 482 of Cr.P.C. and hence, the order dated 25.9.2002 passed by the court of Additional Chief Judicial Magistrate, Court No.9, Allahabad on Misc. Application No.172/XII/2002 (Ram Surat Pasi vs. Vijai Shankar and another), P.S.-George Town, District-Allahabad is hereby quashed.
However, this court refrains itself from proposing any administrative or otherwise action against Mr. Subhash Chandra Bose, the judicial Officer who has been arrayed as opposite party no.3 in the instant petition, on two counts, firstly that no notice has been issued to him to submit his response against the circumstances set forth in this petition about his act and conduct. Secondly that the issue of taking any administrative or otherwise action by the High Court against said judicial officer primarily appears to be subject matter of Civil Misc. Writ Petition No.42396 of 2002.
The office is directed to send the copy of this order to the court of Additional Chief Judicial Magistrate, Court No.9, Allahabad forthwith.
The instant application is decided in aforesaid terms.
Order Date : 13.11.2019 P.S. Parihar/M.Kumar/Naresh