Uttarakhand High Court
Rahil Ather And Another vs State Of Uttarakhand And Another on 1 September, 2016
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 1075/2016
(Under Section 482 Cr.P.C.)
Rahil Ather & Another ........ Applicants
Versus
State of Uttarakhand & Another ....Respondents
1st September, 2016
Hon'ble Servesh Kumar Gupta, J.
Mr. Parikshit Saini, Advocate, for the accused applicants.
Mr. Vinod Kumar Gemini, Dy. Advocate General, for the State/respondent no. 1.
This petition has been filed invoking the powers of the Court under Section 482 CrPC to quash the order dated 8.7.2013 passed by the Special Judge, Anti Corruption/Additional Sessions Judge III, Dehradun and the order dated 26.7.2013 passed by the Chief Judicial Magistrate, Dehradun, whereby after taking the cognisance against the petitioners for the offences under Section 420, 323, 324, 506/34 IPC, the accused persons were asked to stand trial for the said offences.
Brief facts, shorn of unnecessary details, are that these accused persons were posted as Train Ticket Examiners and they were on their official duty. In the course of such duty, they started to check the tickets of the passengers, who were present on the platform of Rishikesh railway station. The victims were in the group and in such group, few of them were present on the platform while others were still taking their journey from Haridwar to Rishikesh to join their party. The passengers on being checked presented few tickets, but they could not produce 2 ticket of each individual and requested the accused persons that few passengers of their group are still to be arrived from the train coming from Haridwar and rest of the tickets are in the possession of those persons. However, the accused did not accede to such request of the passengers and were not ready to wait for a while. So, they charged rupees three hundred either as penalty or the fare of the passengers. Soon after the passengers, travelling from Haridwar, arrived to join their associates and the tickets were shown to the accused persons. Somehow, verbal spat cropped up between the accused persons and the group of passengers so much so that two of the passengers were taken by these accused persons to the room of their superior on the platform and one of the passengers Mr. Panna Lal (complainant) was severely beaten by the accused persons and their associates. The beating was so much so that Panna Lal had to be admitted in the hospital by calling an ambulance, where he remained for a day and was discharged after preliminary treatment. It was an occasion of ongoing Kumbh Mela, where the passengers/pilgrims were arriving from across the country and Mr. Pannal Lal was such a pilgrim. He lodged the First Information Report in the concerned Police Station and left for his permanent abode in District Shivpuri, Madhya Pradesh.
The matter was investigated and a closure report was filed by the Sub Inspector of Police. Since initially the matter was pertaining to Prevention of Corruption Act as well, so the final/closure report was sent to the Special Judge concerned. Learned Judge issued a notice to injured Panna Lal, who turned up in the Court and his statement was recorded on 28.9.2012 by the Court concerned. All the sequences of the incident, as it took place, were narrated 3 by him. So, the learned Judge made up his mind that although the offence under Prevention of Corruption Act is not made out, all the same the offences are made out which are triable by the Magistrate, as indicated above. So, he took cognizance of the matter and remitted the case back for trial by the Chief Judicial Magistrate. Learned Chief Judicial Magistrate again took the cognizance on the same materials, which were collected by the Investigation officer, coupled with the statement of Panna Lal recorded by the Special Judge.
Learned Counsel for the applicants raised a question that if the offence under Prevention of Corruption Act could not have been made out, then since the Special Judge is the Judge of the rank of Sessions Judge, hence he could not take up the cognizance in the matter because the offences are triable by the Magistrate. In support of his argument, learned Counsel has relied upon the following precedents rendered:
(i) Laxmi Chandra Gupta & Another, 2010 (9) ADJ 592. (Allahabad High Court)
(ii) Vipin Kumar Agarwal v. State of U.P, 1998
2 ACR 1067. (Allahabad High Court)
(iii) Dileep & Another v. The State, 2010 2 NCC
86. (Uttarakhand High Court)
(iv) Mathura Prasad v. State of U.P, 2007 1 JIC
492. (Allahabad High Court) On the other hand, learned Deputy Advocate General has relied upon a precedent of Hon'ble Apex Court rendered in Rattiram & Others v. State of M.P., 2012 Cri.L.J. 1769.
I have perused the law, which was laid down by the Hon'ble Allahabad High Court as well as by the Hon'ble Apex Court. I am of the decisive view that all these 4 precedents are not applicable in the present controversy because the law so relied upon by the learned Counsel of the applicants/petitioners is applicable where the case is to be tried by the Special Judge under the S.C./S.T. Act. Then of course, the law is settled that he cannot take cognizance straightway/directly for the offences, which he has to try himself. The cognizance is always taken by the Magistrate and then the case is committed to the learned Special Judge under the S.C./S.T. Act.
In the case of Prevention of Corruption Act, 1988, procedure and powers of the Special Judge have been highlighted in Section 5 of such Act. Sub-section (1) contemplates that a Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, for the trial of warrant cases by the Magistrates. Further, sub-section (3) contemplates that the provisions of the Code of Criminal Procedure, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of said provisions, the Court of the Special Judge shall be deemed to be a Court of Session and the ...................
The status of a Special Judge has been clarified in sub-section (4), which adumbrates that in particular and without prejudice to the generality of the provisions contained in sub-section (3), the provisions of Sections 326 and 475 of the Code of Criminal Procedure, shall, so far as may be, apply to the proceedings before a Special Judge and for the purposes of the said provisions, a Special Judge shall be deemed to be a Magistrate.
When the closure report was submitted by the investigating agency, then the powers of the Special Judge, 5 meant to try the offence under the Prevention of Corruption Act, were equivalent to the powers of the Magistrate for sending the notice to the victim calling his response upon such report, and when such victim appeared before him, he had every power to get his statement recorded in the Court, if asked for by the learned Judge and it has been done in this case. Since a particular offence under the Prevention of Corruption Act was not prima facie made out in the opinion of the Special Judge, but at the same time the facts so disclosed in the First Information Report, evidence collected by the Investigation Officer and the statement of the victim recorded in the Court were making out the offence, as indicated above, therefore, it was well within his power to remit the case to the Court of competent jurisdiction and he had done so.
After receiving the case on its remand, the Chief Judicial Magistrate has again applied his mind on the cumulative evidence collected so far and has passed a fresh order of cognizance for the offences under Section 420, 323, 324, 506/34 IPC.
Therefore, this Court feels that there is no illegality committed by the Court of Chief Judicial Magistrate.
The law relied upon by the learned Deputy Advocate General is not applicable straightway because it deals with the powers of the Sessions Judge under Section 193 of the Code of Criminal Procedure, which pertains to the cognizance of offences by the Court of Sessions Judge.
Here, the Court of Sessions Judge has not taken the cognizance, but the cognizance was previously taken by the Court of Special Judge, who though an officer of the same grade but works like a Magistrate under the provisions of the Act. Thereafter a fresh cognizance has been taken by the Chief Judicial Magistrate.
6After taking the cognizance, the Chief Judicial Magistrate issued summons on 26.7.2013, but the accused persons could not put their presence for a long time and ultimately the Court was constraint to issue the repeated bailable and non-bailable warrants against them, whereagainst they have now come up before this Court under Section 482 CrPC.
The scope of Section 482 CrPC has been clarified by the Hon'ble Apex Court time and again. A Constitution Bench of the Hon'ble Apex Court in that regard has elaborately discussed such scope in the case of Inder Mohan Goswami & Another v. State of Uttaranchal & others, (2008) 1 SCC (Cri) 259, and has held that inherent power under Section 482 CrPC can be exercised: (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. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. However, the inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced 7 before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material.
In view of what has been set forth above, I do not find any force in this petition. It is hereby dismissed. However, it is directed that if the accused persons surrender before the Court of Chief Judicial Magistrate, their bail application shall be heard on the same day and they shall be released on bail after furnishing a personal bond and sureties, to the satisfaction of such Magistrate. At the same time, the bail of the accused persons shall be subject to the following conditions:
(i) Accused persons shall not move any
unnecessary adjournment application in the
matter to further prolong the case for levelling the charges against them.
(ii) They shall not take even a single adjournment to postpone the hearing of the matter because the case is too old and further the witnesses will turn up from a distance of nearly 700 kilometres.
(iii) If after turning of the witnesses, any
adjournment application is moved on any
ground, the bail of the accused persons shall be liable to be cancelled at that very moment.
(Servesh Kumar Gupta, J.) Prabodh