Allahabad High Court
Umesh Chandra vs State Of U.P. And Another on 14 January, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R Court No. - 34 Case :- APPLICATION U/S 482 No. - 44135 of 2019 Applicant :- Umesh Chandra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga, Alok Kumar Counsel for Opposite Party :- G.A. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Amit Daga, learned counsel for applicant and learned A.G.A. for State.
2. This application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") has been filed with a prayer that charge sheet dated 27.09.1995 being Charge Sheet No.37 of 1995 and entire criminal proceedings registered as S.T. No.682 of 2000, under Sections-147, 148, 149, 394, 304, 218-A IPC and Section 3 (i) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "SC/ST Act"), Police Station-Civil Lines, District-Moradabad pending before Court of Special Judge,S.C./S.T. Act, Moradabad, be quashed.
3. Applicant was working as an Excise Inspector in U.P. Excise Department. First Information Report (hereinafter referred to as "FIR") bearing Case Crime No.1374 of 1990 was lodged by one Hari Singh against Assistant Excise Commissioner and other employees including applicant under Sections 394, 325, 326, 218, 504, 304 IPC read with Section 3 (i) of SC/ST Act, relating to an incident said to have occurred on 29.08.1990 at 11.00 AM, which reads as under :-
"सेवा में, थानाध्यक्ष, सिविल लाइन्स, मोरादाबाद दिनांक 29-8- 90, महोदय, दिनांक 29-8-90 को दोपहर 11 बजे आबकारी पुलिस की फ्री लाइन राजकीय उन्न्मत बस्ती, आदर्श कॉलोनी में आयी। मैं उस समय खाना खा रहा था। आते ही मुझे बाल पकड़ कर पीटने लगे। मेरे द्वारा दोष पूछे जाने पर नाराज़ हो गए और कहने लगे कि तुम्हारी जाति वालों को हम लोग भगाकर ही दम लेंगे। अगर शरीफ आदमी थे तो इस जाति मे क्यों जन्म लिया। इतना कहते ही मारपीट कर मुझे घर से ले गए। उस समय फ्री लाइन मे अन्य कई लोग नहीं थे। छोटे छोटे बच्चे थे। मैं और मेरी पत्नी माया देवी, पुत्र सरजीत सिंह तथा आनंद सिंह थे। जब उन्होंने मुझे इस तरह पिटता देखा तो उन्हें भी डंडे मरकर भगा दिया। तत्पश्चात वह हमें आबकारी कार्यालय मे ले गए। वहां सहायक आबकारी कमिश्नर तथा बहुत से अधिकारी व कर्मचारी जो कि दबिश के समय थे उन्होंने मुझे बाल पकड़कर पीटा, जिनमे सहायक आबकारी कमिश्नर प्रमुख हैं। उन्होंने मुझे इतनी जोर से थप्पड़ मारा कि कान का पर्दा फट गया जिससे मुझे सुनाई देना बंद हो गया। जब मेरा पुत्र किशन आबकारी ऑफिस मे मुझे देखने आया तो उसे भी पकड़कर मारा पीटा तथा हाथ कि हड्डी तोड़ दी तथा झूठा कच्ची शराब कि भट्टी का केस बनाकर हम दोनों को बंद कर दिया। वहां पर हम दोनों को फिर एक साथ मारा तथा गाली गलौज किया और अभद्र तरीके से मैला खाने को मजबूर किया। शाम को ये थाने पर चालान लाये और हमें सिविल लाइन भेज दिया। थाने से दूसरे दिन कचेहरी लाया गया और कचेहरी मे जमानत हुई। आबकारी कार्यालय मे मेरा लड़का जो किशन सिंह मुझे देखने आया था उसकी घडी साइकिल बटुआ जिसमे दो सौ सत्तर रुपये थे तथा मेरे चार हज़ार रुपये जो कि मैं लकड़ी खरीदने के लिए जा रहा था छीन लिए। न ही उन्हें थाने मैं जमा कराया और न ही वापस किया। हमको आबकारी विभाग में इतना डराया धमकाया कि थाने रिपोर्ट लिखने नहीं जाने दिया। हम अनुसूचित जाति के लोगों पर आबकारी पुलिस कमिश्नर द्वारा ज्यादितियाँ की गयी हैं इसकी रिपोर्ट दर्ज़ कर कानूनी कार्यवाही की जाये।"
(emphasis added)
4. Investigation commenced on 07.09.1990 at around 12.45 PM but after a short while, Kishan Singh, son of Informant, who was allegedly beaten as per FIR version, died at Railway Hospital, Moradabad at 2.50 PM. Panchayatnama was prepared. Post Mortem Examination Report shows that cause of death could not be ascertained and viscera including piece of medulla of spinal cord, brain matter and meninges were preserved. As per Post Mortem Examination Report following injuries were found on the body of deceased :
"1. Contusion 10 cm x 7 cm over medial aspect of right ankle
2. Multiple healing abrasion over left leg
3. Contusion 50 cm x 10 cm over lateral aspect of left leg.
4. Left middle finger is amputated, inter phalangeal joint bond protruding out of wound margins.
5. Diffused contusion 8 cm x 4 cm on aspect of right thigh and knee.
6. Stabbed abrasion in an area of 7 cm, scar started separating."
5. Investigation was transferred to CB, CID. After making investigation it submitted charge sheet dated 27.09.1995 for offences under Sections-147, 148, 149, 394, 304, 218 A IPC and Section 3(i) of SC/ST Act against 21 persons including applicant, an Excise Inspector in U. P. Excise Department. Court concerned took cognizance of charge sheet and summoned applicants and others. Trial is pending.
6. An affidavit has been filed on behalf of State which is sworn by Sri Shiv Kumar Shukla, Sub Inspector of Police, P.S.Civil Lines, District-Moradabad in December 2019, stating that during pendency of the matter, Complainant Hari Singh, witnesses Tilak Singh, Smt. Maya Devi and Mulayam Singh died but other witnesses namely Sarjeet Singh and Anand Singh, both sons of Hari Singh are alive and trial is pending.
7. Learned counsel for applicant submitted that entire proceedings are malicious and counter blast case, inasmuch as, a team of Excise Officers comprising of Excise Inspectors and Constables, total 22 in number, was constituted under Order of Assistant Excise Commissioner, Moradabad. Team was led by Sri G. K. Gupta, Excise Inspector, Sector-2, Moradabad, which included 7 Excise Inspectors and 14 Constables for raid. Raid was conducted on 29.08.1990 at free line Adarsh Colony, Moradabad in which 12 persons were apprehended and arrested with illicit liquor. Articles used for making illicit liquor were also recovered. Arrested persons on the spot were Shahid, Amit Kumar, Hari Singh (i.e. Informant), Kishan Singh, Gita and Shakuntala. Information of raid and recovery chart prepared by Excise Authorities was forwarded to Investigating Officer(hereinafter referred to as "I.O."), Fakirpura Police Chowki, Moradabad. Kishan Singh and Hari Singh were both enlarged on bail on 30.08.1990. Kishan Singh met with a road accident on 30.08.1990 and his medical examination report shows injury on left middle finger including other injuries which are shown in Annexure-3 to this application as under:
"1. Lacerated wound 3 cm x 5 cm bone deep on front of left middle finger proximal phalanges just near Ist inter phalangeal joint, blood oozing on washing. Blood clotting present on wound, traumatic swelling in whole of left middle finger. Advised X-ray left middle.
2. Contusions 3 cm x 1 cm on left forearm, 5 cm above left wrist joint, Red in colour on lateral part.
3. Multiple contusions on whole of left leg in lateral part in area 22 cm x 10 cm, Red in colour.
4. Multiple abrasions on skin of tibia left leg, size 2 cm x 2 cm with blood clotted present.
5. Contusion 9 cm x 2 cm on medial lower aspect of right thigh, reddish in colour, 11 cm above right knee.
6. Multiple abrasion in area 7 cm x 7 cm on back of right elbow joint."
8. Later, on complaint lodged by father of Kishan Singh i.e. Hari Singh on 06.09.1990, a report was registered alleging the incident to have occurred on 29.08.1990 though medical report dated 30.08.1990 shows that injuries found on person of Kishan Singh were sustained in a road accident. It is further contended that there is no evidence whatsoever to support FIR version; investigation has been made in a slipshod manner; charge sheet has been submitted without any credible evidence; the entire proceedings are fully malicious and, therefore, liable to be set aside.
9. It is further contended that applicant is a government servant and there is no sanction obtained under Section 197 CrPC, therefore, cognizance taken by Court below is wholly without jurisdiction rendering entire proceedings vitiated in law. It is further contended that offence was registered under Section 3 (i) of SC/ST Act and investigation has not been conducted by competent authority i.e. a Police Officer not below the rank of Deputy Superintendent of Police.
10. First I proceed to consider applicability of Section 197 CrPC. Since controversy is centered around Section 197 Cr.P.C., it would be appropriate to reproduce the same as under:
"197. Prosecution of Judges and public servants.-(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.
(3A) Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held."
11. Section 197 Cr.P.C. has referred to two terms. One is the "public servant" and another "offence".
12. The term "offence" has been defined in Section 2(n) of Cr.P.C. and Section 40 IPC and both may be reproduced as under:
"(n) "Offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle-trespass Act, 1891 (1 of 1871)."
"40. "Offence"-Except in the Chapters and Sections mentioned in clauses 2 and 3 of this Section, the word "offence" denotes a thing made punishable by this Code.
In Chapter IV, Chapter V-A and in the following sections, namely, Sections 64, 65, 66, 67, 71, 109, 110, 112, 114, 115, 116, 117, 187, 194, 195, 203, 211, 213, 214, 221, 222, 223, 224, 225, 327, 328, 329, 330, 331, 347, 348, 388, 389 and 445, the word "offence" denotes a thing punishable under this Code, or under any special or local law as hereinafter defined.
And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word "offence" has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine."
13. Term "public servant" has not been defined in Cr.P.C. but is defined in Section 21 IPC. I may refer the definition of "public servant" at a later stage if it is necessary.
14. Section 197 Cr.P.C. was also available in Code of Criminal Procedure, 1898. It came up for consideration before Bombay High Court in Hanumant Shrinivas Kulkarni Versus Emperor, (31) 1930 Crl.L.J. 353. Court observed that object of sanction is to guard against vexatious proceedings against public servants and to secure the well considered opinion of a superior authority before their prosecution.
15. In E Versus G. Sadagopan, 1953 Crl.L.J.1929 Madras High Court said that the object of sanction is nothing more than to ensure the discouragement of frivolous, doubtful and impolite prosecution.
16. In Indu Bhushan Chatterjee Versus State, AIR 1955 Cal.430 Calcutta High Court said that provision for sanction is a most salutary safeguard. The sanctioning authority is placed somewhat in the position of a sentinel at the door of Criminal Courts in order that no irresponsible or malicious prosecution can pass the portals of the Court of Justice.
17. In Gurbachan Singh Versus State, AIR 1970 Delhi 102 Delhi Bench of Punjab High Court said that intention of legislature in providing for a sanction in respect of offences covered by Section 6 of Act, 1947 is merely to afford a reasonable protection to public servants in discharge of their official functions. It is not the object of section that a public servant who is guilty of the particular offence mentioned in that section should escape the consequences of his criminal act by raising the technical plea of invalidity of sanction. The sanction is a safeguard for innocent and is not a shield for guilty.
18. In R. Bala Krishna Pillai Vs. State of Kerala, (1996) 1 SCC 478 Supreme Court while referring to the Law Commission's 41st Report with respect to Section 197 quoted the following observations of Law Commission:
"The protection afforded by the section would be rendered illusory if it were open to a private person harbouring a grievance to wait until the public servant ceased to hold his official position, and then to lodge a complaint. The ultimate justification for the protection conferred by section 197 is the public interest in seeking that official acts do not lead to needless or vexatious prosecutions." (emphasis added)
19. In P.V. Narsimha Rao Versus The State, AIR 1998 SC 2120 Supreme Court said:
"The requirement of sanction under Section 19(1) is intended as a safeguard against criminal prosecution of a public servant on the basis of malicious or frivolous alleging by interested persons. The object underlying the said requirement is not to condone the commission of an offence by a public servant." (emphasis added)
20. In Gauri Shankar Prasad Vs. State of Bihar, 2000 SCC (Cri) 872 Supreme Court held:
"The object of the section is to save officials from vexatious proceedings against Judges, magistrates and public servants but it is no part of the policy to set an official above the common law. If he commits an offence not connected with his official duty he has no privilege. But if one of his official acts is alleged to be an offence, the State will not allow him to be prosecuted without its sanction. Section 197 embodies one of the exceptions to the general rules laid down in Section 190 Cr.P.C., that any offence may be taken cognizance of by the Magistrates enumerated therein. Before this section can be invoked in the case of a public servant two conditions must be satisfied i.e.(1) that the accused was a public servant who was removable from his office only with the sanction of the State Government or the Central Government; and (2) he must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty."
(emphasis added)
21. In State of Himachal Pradesh Vs. M.P. Gupta, 2004(2) SCC 349 it was said:
"The protection given under Section 197 is to protect responsible public servants against the institution of possible vexatious criminal proceedings for offence alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution."
(emphasis added)
22. In State of Orissa and others Vs. Ganesh Chandra Jew, AIR 2004 SC 2179 it was held:
"The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution."
(emphasis added)
23. Supreme Court has again reiterated in Rakesh Kumar Mishra Versus State of Bihar, JT 2006 (1) SC 1 as under:
"The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings...."
(emphasis added)
24. The above authorities have also been followed in Devinder Singh and others vs. State of Punjab through CBI, (2016) 12 SCC 87.
25. The object of the legislature for making provision pertaining to sanction seems to be clear. Where a public servant is prosecuted for an offence, which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender but the State is also vitally concerned in it as it affects the morale of the public servants and also the administrative interests of the State. For these reasons, the discretion to prosecute appears to be taken away from the prosecuting agency and is vested in departmental authorities, i.e., the employer probably with the view that they may assess and weigh the accusation in a far more dispassionate and responsible manner. The ultimate justification is public interest. It, however, does not condone the commission of an offence by a public servant or to use it as shield to escape from legal proceedings on mere technicalities.
26. The observations of Supreme Court in State of Himachal Pradesh Vs. M.P. Gupta (supra); State of Orissa and others Vs. Ganesh Chandra Jew (supra); and, Rakesh Kumar Mishra Versus State of Bihar (supra) clearly shows that protection provided in Section 197 is for "responsible public servants" who are mainly involved in superior duties including policy decision so that such superior officials may not be harassed in taking policy decision etc. This protection is not available to every public servant. When State itself has made a distinction based on degree of responsibility, nature of duties, nature of functions etc., and that is why the public servants who are removal with sanction of Government and those who are not, are treated in a two different classes, it cannot be said that distinction is artificial and has no nexus to the object sought to be achieved. The very distinction in the category of two government servants, namely, those who are supposed to take responsible decisions and those who are not, shows that neither it is artificial nor irrational nor lack nexus to the object sought to be achieved.
27. Very recently, a three Judges Bench of Supreme Court has considered a similar issue in Station House Officer, CBI/ACB/ Bangalore vs. B.A. Srinivasan and Ors. 2019(16) SCALE 803 where cognizance order passed on charge sheet was challenged on the ground of lack of sanction and prayer for discharge was made but Trial Court rejected the same and in the criminal revision, High Court interfered. Supreme Court did not approve order of High Court and said that whether protection under Section 197 is available or not has to be examined not only on the consideration that incumbent is a 'public servant' but also whether offence alleged to have been committed relates to his act or purporting to act in discharge of official duties which would require investigation into facts. Relying on earlier judgments in Shambhoo Nath Misra vs. State of U.P. (1997) 5 SCC 326 (Para 5); Parkash Singh Badal vs. State of Punjab (2007) 1 SCC 1 (Paras 20 and 38); Rajib Ranjan vs. R. Vijay Kumar (2015) 1 SCC 513 (Para 18); P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation (2001) 6 SCC 704 and N.K. Ganguly vs. CBI, New Delhi (2016) 2 SCC 143, Supreme Court said that whether alleged act is intricately connected with discharge of official functions and whether matter would come within the expression 'while acting or purporting to act in discharge of their official duty', would get crystallized only after evidence is led and issue of sanction can be agitated at a later stage as well. Court said that without there being evidence and issue having been considered by Trial Court, at the stage of summoning such an issue cannot be examined by superior Court on a Criminal Revision or on an application under Section 482 Cr.P.C. Thus the judgment, in my view, rather goes against applicant instead of helping him.
28. In the present case, admittedly, on the date of incident and also on the date of cognizance taken by Court concerned, applicant was holding post of Excise Inspector in U. P. Excise Department. Service conditions of Excise Inspector (Group 'C') in U. P. Excise Department are governed by U.P. Subordinate Excise Service Rules, 1992 (hereinafter referred to as "Rules, 1992") wherein appointing authority of Excise Inspector is U.P. Excise Commissioner and neither State Government has any power of appointment nor any sanction of appointment is required from State Government. Moreover, Section 197 CrPC would be attracted only when offence is alleged to have been committed, when he was acting or purporting to act in discharge of official duties.
29. In view of above discussions, contention of application of Section 197 CrPC is thoroughly misconceived and rejected.
30. Now I come to question of lack of competence with regard to investigation. In support of this contention learned counsel for applicant relied on Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as "Rules, 1995"), which came into force on 31.03.1995. When aforesaid Rules came into force, investigation in present matter had already undergone. There is no provision shown as contained in Rules, 1995 requiring that pending enquiry, if any, or where any enquiry has completed and submission of charge sheet is under process before Police Authorities, shall also stand transferred to police officer not below the rank of Deputy Superintendent of Police for re-enquiry. Rules are prospective.
31. Be that as it may. In fact, when questioned learned counsel for applicant could not dispute that no such issue was ever raised by applicant before Court below at any stage. FIR was lodged on 06.09.1990 and enquiry was transferred to CBCID in 1990 itself. No such issue has been raised even in the present application but only in the course of argument this aspect has been pointed out, which requires detailed investigation of facts, therefore, it is open to applicant to raise this issue before Court below but in absence of any pleadings and material, I do not find that charge sheet is vitiated in law and is in violation of Rules, 1995, since it has also to be seen, whether investigation was already complete before enactment of Rules, 1995 and charge sheet has been filed subsequently after approval by senior competent authorities. And all these aspects will require to be examined on relevant material which is not available to this Court.
32. Now third contention of petitioner is that there is no credible evidence and entire proceedings are counter blast. In other words, what petitioner has argued is that material which has been placed for the first time before this Court to claim that FIR in question was a counter blast should be examined at this stage itself like trial. I find myself unable to accept this argument as it is not possible for this Court to look into defence evidence at this stage.
33. The principles which justify interference under Section 482 Cr.P.C. by Court have been laid down in various authorities in which Supreme Court's judgment in State of Haryana vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 was a leading precedent and thereafter matter has also been examined by even Larger Benches.
34. In State of Haryana vs. Bhajan Lal and others (supra) issue of jurisdiction of this Court under Section 482 Cr.P.C. has been considered and what has been laid down therein in paragraph 102, has been repeatedly followed and reiterated consistently. In a very recent judgment in Google India Private Limited Vs. Visakha Industries and Ors., passed by Supreme Court in Criminal Appeal No.1987 of 2014 on 10.12.2019, guidelines laid down in paragraph 102 in Bhajal Lal's case (supra) have been reproduced as under :
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the 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 FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the Accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the Accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the 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."
(emphasis added)
35. Court has also reproduced note of caution given in paragraph 103 in Bhajan Lal's case (supra) which reads as under :
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR 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."
(emphasis added)
36. What would be the scope of expression "rarest of rare cases" referred to in para 103 in State of Haryana vs. Bhajan Lal (supra) has been considered in Jeffrey J. Diermeier and Ors. Vs. State of West Bengal and Ors. , 2010 (6) SCC 243, Court has said that words "rarest of rare cases" are used after the words 'sparingly and with circumspection' while describing scope of Section 482 CrPC. Those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash FIR or criminal proceedings should be used sparingly and with circumspection.
37. Supreme Court in Jeffrey J. Diermeier (supra) infact referred to an earlier Three Judges' Bench judgment in Som Mittal Vs. State of Karnataka, 2008 (3) SCC 753, to explain phrase "rarest of rare cases". In Som Mittal (supra), Court also said that exercise of inherent power under Section 482 CrPC is not a rule but exception. Exception is applied only when it is brought to notice of Court that grave miscarriage of justice would be added if trial is allowed to proceed where accused would be harassed unnecessarily or if trial is allowed to linger when prima facie it appears to Court that trial would likely to be ended in acquittal. Whenever question of fact is raised which requires evidence, Courts always said that at pre trial stage i.e. at the stage of cognizance taken by Magistrate power under Section 482 CrPC would not be appropriate to be utilized, since, question of fact has to be decided in the light of evidence which are yet to be adduced by parties.
38. In Lakshman vs. State of Karnataka and others, 2019 (9) SCC 677 Court said that it is not permissible for High Court in application under Section 482 CrPC to record any finding wherever there are factual disputes. Court also held that even in dispute of civil nature where there is allegation of breach of contract, if there is any element of breach of trust with mens rea, it gives rise to criminal prosecution as well and merely on the ground that there was civil dispute, criminality involved in the matter cannot be ignored. Further whether there is any mens rea on part of accused or not, is a matter required to be considered having regard to facts and circumstances and contents of complaint and evidence etc, therefore, it cannot be said pre judged in a petition under Section 482 CrPC.
39. In Chilakamarthi Venkateswarlu and Ors. Vs. State of Andhra Pradesh and Ors., AIR 2019 SC 3913, Court reiterated that inherent jurisdiction though wide and expansive has to be exercised sparingly, carefully and with caution and only when such exercise would justify by tests specifically laid down in Section itself. In paragraph 14 of judgment, Court said :
"14. For interference Under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief."
(emphasis added)
40. Court also said that in exercise of jurisdiction under Section 482 CrPC it is not permissible for the Court to act as if it were Trial Court. Court has only to be prima facie satisfied about existence of sufficient ground for proceeding against accused. For that limited purpose, Court can evaluate material and documents on record but it cannot appreciate evidence to conclude whether materials produced are sufficient or not for convicting accused. High Court should not exercise jurisdiction under Section 482 CrPC embarking upon an enquiry into whether evidence is reliable or not or whether on reasonable apprehension of evidence, allegations are not sustainable, or decide function of Trial Judge. For the above proposition, Court relied on its earlier authority in Zandu Pharmaceuticals Works Limited and others vs Mohd. Sharaful Haque and others, 2005 (1) SCC 122.
41. Power under section 482 CrPC should not be exercised to stifle legitimate prosecution. At the same time, if basic ingredients of offfences alleged are altogether absent, criminal proceedings can be quashed under Section 482 CrPC. Relying on M.A.A. Annamalai Vs. State of Karnataka and Ors. , 2010 (8) SCC 524, Sharda Prasad Sinha Vs. State of Bihar, AIR 1977 SC 1754 and Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Ors., 1976 AIR 1976 SC 1947, Court in Chilakamarthi Venkateswarlu and Ors. (supra) said that where allegations set out in complaint or charge sheet do not constitute any offence, it is open to High Court exercising its inherent jurisdiction under Section 482 CrPC to quash order passed by Magistrate taking cognizance of offence. Inherent power under Section 482 CrPC is intended to prevent abuse of process of Court and to clear ends of justice. Such power cannot be exercised to do something which is expressly barred under CrPC. Magistrate also has to take cognizance applying judicial mind only to see whether prima facie case is made out for summoning accused persons or not. At this stage, Magistrate is neither required to consider FIR version nor he is required to evaluate value of materials or evidence of complainant find out at this stage whether evidence would lead to conviction or not.
42. It has also been so observed in Rakhi Mishra Vs. State of Bihar and Ors., 2017 (16) SCC 772 and Sonu Gupta Vs. Deepak Gupta and Ors. , 2015 (3) SC 424 and followed recently in Roshni Chopra and others vs. State of U.P. and others, 2019 (7) Scale 152. Here Court also referred to judgment in Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Ors., (2003) 4 SCC 139, wherein paragraph 9, Court said that in determining the question whether any process has to be issued or not, Magistrate has to be satisfied whether there is sufficient ground for proceeding or not and whether there is sufficient ground for conviction; whether the evidence is adequate for supporting conviction, can be determined only at the trial and not at the stage of inquiry.
43. However, it is also true that at the stage of issuing process to the accused, Magistrate is not required to record detailed reasons. In U. P. Pollution Control Board vs. Mohan Meaking Limited and others, 2000 (3) SCC 745, after referring to a decision in Kanti Bhadra Shah Vs State of West Bengal 2001 SCC 722, Court said :
"Legislature has stressed the need to record reasons in certain situations such as dismissal of complaint without issuing process. There is no such requirement imposed on a Magistrate for passed detailed order while issuing summons. Process issued to accused cannot be quashed merely on the ground that Magistrate had not passed a speaking order."
(emphasis added)
44. Same proposition was reiterated in Nupur Talwar Vs Central Bureau of Investigation and others, 2012 (11) SCC 465.
45. In a Three Judges' Bench in Parbatbhai Aahir and Ors. Vs State of Gujarat and Ors, 2017 (9) SCC 641, Court has observed that Section 482 CrPC is prefaced with an overriding provision. It saves inherent power of High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Paragraph 15 of the judgment Court summarized as under :
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
(emphasis added)
46. Above observations have been reiterated in Arun Singh and other Vs State of U.P. passed in Criminal Appeal no.250 of 2020 (arising out of Special Leave Petition (Crl.) No. 5224 of 2017), decided by Supreme Court on 10.02.2020.
47. In view of above discussions, I do not find any illegality or infirmity in impugned charge sheet and criminal proceedings assailed in this application. This application, thus lacks merit, and is accordingly dismissed.
48. Interim order, if any, stands vacated.
Order Date : 14.01.2020 Manish Himwan