Allahabad High Court
Premgiri vs State Of U.P. And 3 Ors. on 18 September, 2019
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 83 Case :- MATTERS UNDER ARTICLE 227 No. - 5579 of 2019 Petitioner :- Premgiri Respondent :- State Of U.P. And 3 Ors. Counsel for Petitioner :- Jai Prakash Prasad, Ajay Kumar Chaurasia Counsel for Respondent :- G.A. Hon'ble Raj Beer Singh,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the record.
The present misc. petition has been preferred under Article 227 of the Constitution of India for quashing the order dated 03.05.2017 passed by learned Judicial Magistrate, Mathura in Complaint Case No. 635 of 2016 as well as for quashing the order dated 02.02.2019 passed by learned Additional Sessions Judge, Court No. 6, Mathura in Criminal Revision No. 160 of 2017, police station Mahavan, district Mathura.
Perusal of the record shows that the petitioner has lodged an FIR under Sections 420, 467, 468, 471, 120B IPC against respondent nos. 3 and 4 and one Rakesh Giri mainly alleging that petitioner was not mentally well and on 18.11.2012, accused persons named in the FIR, kidnapped him and getting him intoxicated, they got executed sale deed of his land by way of fraud and conspiracy. After investigation, police have filed final report alleging that no case was made out against respondent nos. 3 and 4 and Rakesh Giri. Petitioner preferred the protest petition against final report, which was registered as a complaint case and petitioner was examined under Section 200 Cr.P.C. and two witnesses, namely, PW-1 Guddo Devi and PW-2 Ram Babu Giri were examined under Section 202 Cr.P.C. Thereafter vide impugned order dated 23.05.2017 only Rakesh Giri was summoned under Section 420 IPC.
The petitioner is complainant of the case and his grievance is that learned Magistrate has not summoned all the persons named in the complaint and even Rakesh Giri, who was summoned, has not been summoned for serious offences, which were made out.
It has been argued by learned counsel for the petitioner that the learned trial court as well as revisional court have not considered the material on record. Learned trial court has committed error by not summoning accused Rakesh Giri under Sections 467, 468, 471, 120-B IPC and further committed error by not summoning respondent nos. 2 to 4, who were named in the complaint. Similarly, the learned revisional court has also committed error by dismissing the revision. It has been argued that on the basis of the material on record, a prima facie case under Sections 420, 467, 468, 471, 120B IPC was made out against Rakesh Giri and respondent nos. 2 to 4 as there are allegations against all the accused persons, who were named in the FIR as well as in the protest petition, wherein it was alleged that they have kidnapped the complainant and by getting him intoxicated, they got executed sale deed of his land.
Learned A.G.A. for the State has opposed the petition and argued that there is no illegality or perversity in the impugned orders.
The instant petition has been preferred under Article 227 of the Constitution of India. It is well settled that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Apex Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571:
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Hon'ble Apex Court held as under:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
It is apparent from the above stated pronouncement that in supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow and even the errors of law cannot be corrected in exercise of such powers. The power enshrined under Article 227 of the Constitution is of judicial superintendence and it cannot be used to upset conclusions of fact, however, erroneous, unless such conclusions are so perversed or unreasonable that no court could have ever reached than.
In the instant matter, grievance of petitioner is that all the named in complaint, persons were not summoned and even Rakesh Giri was also not summoned under relevant Sections of IPC. It is settled principle that while summoning an accused, the court has to see prima facie evidence. The enquiry u/s 202 Cr.P.C. is limited only to ascertain of truth or falsehood of allegations made in the complaint and whether on the material placed by the complainant a prima facie case was made out for summoning the accused or not. Summoning of a person as accused is a very important matter, which initiates criminal proceeding against him. Such orders cannot be passed summarily or without applying judicial mind. The Magistrate can not work as mouthpiece of the complainant and he is not bound to summon a prospective accused under any particular section of law, as sought by the complainant. A person has to be summoned for trial only for the offences, which are made out from the relevant material on record. Similarly Magistrate is not bound to summon all the persons named in the complaint, if there is no sufficient grounds to proceed against them. The broad probabilities of the matter may also be taken in to consideration while considering issue of summoning. The substance of allegations of the complainant against respondent nos. 2 to 4 and Rakesh Giri is that they have got executed a forged sale deed by getting him intoxicated. However, this fact has not been denied that alleged sale deed has been executed before the Sub-Registrar. Considering the entire facts, there does not appear any illegality or perversity in the impugned summoning order or in the order of the learned revisional court. The court is not bound to summon a person under all or any particular section of IPC, as sought by the complainant rather the Magistrate had to apply its judicial mind considering the entire facts and all attending facts and circumstances. In a given situation mere bald allegations may not be sufficient and justify to summon a person for such grievous offences. Considering entire facts, there is no any such illegality, perversity or any error of jurisdiction in the impugned orders so as to warrant exercise of powers under Article 227 of the Constitution of India.
Considering the entire facts in the light of the above stated legal position, there is no justification warranting any interference with the impugned orders in this writ petition. Consequently, the present petition is liable to be dismissed.
Accordingly, the instant writ petition is dismissed.
Order Date :- 18.9.2019 Anand