RAM SHANKER PANDEY v. U P POLICE — 1994 DIGILAW 312 (ALL)

M. KATJU, J. This is an application under Section 482, Cr. P. C. praying for quashing of the first information report dated 23-3-1994 under Section 143, 504 and 506, I. P. C. in case crime No. 142-A of 1994 of P. S. Kotwali, district Ghazipur. It has also been prayed that the arrest of the applicants be stayed in the said case. 2. I have heard Shri M. L. Rai, learned counsel for the applicants and the learned Government counsel and I am disposing of this case finally. 3. Applicant No. 1 Shri Rama Shanker Pandey is the Principal in Government City Inter College, Ghazipur and is a Class II officer of the U. P. Government. The other applicants are teachers and clerk in the same college. The aforesaid first information report dated 23-3-1994 was lodged against the applicants by another teacher of the same college Shri Bal Mukund Maurya at 5. 10p. m. A true copy of the said first information report is Annexure-1 to the affidavit filed in support of this application. An earlier first information report was lodged by Shri Rama Shanker Pandey, the Principal of the college (applicant No. 1 in this petition) at 1. 15 p. m. the same day under Sections 186/ 504/506, I. P. C. true copy of which is Annexure-2 to the affidavit filed in support ot this application. In this first information report lodged by Rama Shanker Pandey it is alleged that on 23-3-1994 when the annual home examina tion was going on Bal Mukund Maurya caught the hand of the Principal and told him that today he will not be able to leave the room and he will say why he has fixed the duty of Bal Mukund Maurya there. By chance the members of the flying squad reached the spot and hence nothing untoward happened. It is also alleged in the said FIR that Bal Mukund Maurya abused the applicant No. 1 and threatenend to kill him and interferred with his official duties. 4. The first information report lodged by Bal Mukund Maurya on 23-3-1994 against the applicants is reproduced below: 5. It is alleged in paragraph 3 of the affidavit in support of this applica tion that the first information lodged by Bal Mukund Maurya is false with mala fide intention filed after the first information report of the Principal Rama Shanker Pandeyand it is malicious. It is alleged in paragraph 3 of the affidavit in support of this applica tion that the first information lodged by Bal Mukund Maurya is false with mala fide intention filed after the first information report of the Principal Rama Shanker Pandeyand it is malicious. It is alleged that the withesses mentioned in the first information report of Bal Mukund Maurya have denied the incident and they informed the police accordingly. It is further alleged para 5 of the affidavit that Bal Mukund Maurya became angry with the applicant No. 1 as he (the applicant No. 1) had sent a D. O. letter against Bal Mukund Maurya to the Additional Director of Education vide letter dated 21/23-3-1994. A true copy of the said letter is Annexure 5. In paragraph 6 it also alleged that Bal Mukund Maurya was doing the duty of invigilation in the examination of correspondence students since several years. 6. Learned counsel for the applicants states that a perusal of the first information report show that no offence is made out against the applicants and hence it deserves to be quashed. A perusal of the first information report filed by Bal Mukund Maurya shows that the only allegation therein is that the applicants abuse Bal Mukund Maurya and said that they will see him outside. In my opinion, even if the allegation in the first informa tion report is assumed to be correct, no criminal offence is made out against the applicant. A mere abuse by itself is not a criminal offence though it may be an improper act. In this case the allegation is vagueand even the exact abuse is not mentioned. Moreover, Section 95 of the Indian Penal Code states "nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. " The allegations in the first information report in my opinion caused only slight harm to Bal Mukund Maurya even if they are assumed to be correctand hence in view of Section 95, I. P. C. no offence is made out against the appli cants. It seems that Bal Mukund Maurya filed the FIR only as a counter blast when he learnt of the earliear FIR against him. It seems that Bal Mukund Maurya filed the FIR only as a counter blast when he learnt of the earliear FIR against him. 7. Learned Government counsel has invited my attention to the decision of the Full Bench of this court in Ramlalyadava v. State of U. P. , 1989 ACC 181: 1989 JIC 177 (A11) (FB) where it had been hell that prior to the submission of the charge-sheet the High Court cannot interfere with an investigation under Section 482, Cr. P. C. In my opinion this decision is no longer good law in view of the subsequent decision of the Supreme Court in the case of State of Haryana v. Bhajan lal, 1992 Or LJ 527: (1990) 2 JIC 997 (SC) which has been followed in the case of Union of India v. Bajai, 1994 ACC 157 In Bhajan lals case (supra) it has been held (in paragraph 108) that both under Article 226 of the Constitution of India as well as under Section 482 Cr. P. C. the High Court can interfere in certain exceptional circumstances. Some of these circumstances mentioned in Bhajan lals case are as follows: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cogniz able offence, justifying an investigation by police officers under Section 156 (1) of 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 com plaint 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 alegations in the FIR do not constitute only a cogni zable 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. (4) Where the alegations in the FIR do not constitute only a cogni zable 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 provi sions of the court 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 efficatious 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. " 8. Bhajan lals case (supra) thus makes it clear that basically the same principles apply whether it is a petition under Article 226 of the Constitution of India or an application under Section 482, Cr. P. C. and the said decision does not make a distinction between the cases where charge-sheet has been filed and where the charge-sheet has not been filed. In fact, the second ground in the seven illustrative grounds mentioned in paragraph 108 of Bhajan lals case (quoted above) states that the High Court under Section 482, Cr. P. C. (or under Article 226 of the Constitution) can interfere "where the allegations in the first information report and other material, if any, accompanying the first informa tion do not disclose a cognizable offence justifying an invetigation by the police officer under Section 156 (1) of the Code. "thus it is clear that the Supreme Court in Bhajan lals case has held that even under Section 482, Cr. P. C. an investigation by the police can be interfered with by the High Court if the first information report does not disclose a cognizable offence, 9. Ground No. 7 mentioned in paragraph 108 of Bhajan lals case also makes it clear that the High Court can also interfere under Section 482, Cr. P. C. an investigation by the police can be interfered with by the High Court if the first information report does not disclose a cognizable offence, 9. Ground No. 7 mentioned in paragraph 108 of Bhajan lals case also makes it clear that the High Court can also interfere under Section 482, Cr. P. C. if it is satisfied that the criminal proceeding is mala fide or has been instituted for vengeance. Thus, from Bhajan lals case it is evident that the High Court under Section 482, Cr. P. C. can interfere with the police investiga tion in certain exceptional circumstances. 10. In paragraph 56 of Bhajan lals case (supra) the Supreme Court has observed as follows: "the above questions have been examined by the Courts on several occasions and they have by judicial pronouncements carved out an area, limited though it be, within which the legality of the exercise of powers by police officers in the realm of investigation can yet be subjected to judicial reviewability and scrutinyand the immunity enjoyed by the police officers is only a conditional immunity. The Privy Council in Nazir Ahmads case, 1945 (46) Cr. LJ 413 (albeit) though has ruled that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province has provided an excep tion to that above observation to the effect that if no cognizable offence or no case of any kind is disclosed the police would have no authority to undertake the investigation. " 11. The Supreme Court has no doubt observed in paragraph 109 of the said decision that such interference by the High Court should be done sparingly and that too in the rarest of rare case but this itself indicates that the Supreme Court was of the view that the High Court can interfere under Section 482, Cr. P. C. with the police investigation or for quashing the first information report in such rarest of rare case. 12. P. C. with the police investigation or for quashing the first information report in such rarest of rare case. 12. In State of Andhra Pradesh v. P. V. Pavithran, AIR 1990 SC 1266 : (1990) 1 JIC 467 (SC) the Supreme Court has observed as under:- "there is no denying the fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emptional and mental stress and strain and to remain always under fear psychosis. Therefore, it is imperative that if investigation of 9 criminal proceeding staggers on with tardy pace due to the indolence or inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will stap in and resort to the drastic remedy of quashing further proceedings in such investigation. " 13. The above decision of the Supreme Court was given in a case arising out of proceedings under Section 482, Cr. P. C. and the Supreme Court held that in the circumstances of the case the High Court can interfere even before filing of the charge-sheet and can quash the police investigation. 14. Thus, it is evident from the above observation of the Supreme Court that in exceptional circumstances the High Court under Section 482, Cr. P. C. can quash the investigation. 15. In view of the above decisions of the Supreme Court which were pronounced subsequent to the judgment of this Court in Ram lal Yadavas case (supra) it is evidence that the decision in Ram lal Yadavs case is in consistent with the aforesaid decisions of the Supreme Court to the extent that Ram lal Yadavas decision has held that the High Court can never interfere under Section 482, Cr. P. C. prior to the submission of the charge-sheet None of the aforesaid decisions of the Supreme Court make any distinction between the power of the High Court under Sec. 482, Cr. P. C. to interfere prior to the submission of the charge-sheet or subsequent to the submission of the charge sheet. In my opinion the Supreme Court has clearly laid down that in rarest of rare cases the High Court under Section 482, Cr. P. C. to interfere prior to the submission of the charge-sheet or subsequent to the submission of the charge sheet. In my opinion the Supreme Court has clearly laid down that in rarest of rare cases the High Court under Section 482, Cr. P. C. can interfer even prior to the charge sheet (as is evident from ground No. 2 in para 108 of Bhajan lals decision) if the first information discloses no cognizable offence, or if the other conditions mentioned in para 108 of Bhajan lals case exist. In my opinion if the first information report discloses no cognizable offence, there is no question of police investigation as that will amount to harassment to citizens of this country which will be violative of Articles 14 and 21 of the Constitution of India whose scope has been vastly expanded by the Supreme Court in Maneka Gandhi v. Union of India, AIR 1978 SC 597 and subsequent decisions of the Supreme Court. 16. Section 482, Cr. P. C. states that the High Court can pass suitable orders not only to prevent abuse of the process of the court, but also "other wise to secure the ends of justice. " Hence even if the matter has not reached the Magistrate or the Court the High Court can still interfere to secure the ends of justice mentioned in Section 482, Cr. P. C. itself. It is true that the High Court should not ordinarily interefere with the police investigation but there is no absolute bar for the High Court doing so in exceptional circumstances (men tioned in Bhajan lals case ). The investigation of a case by a police officer even though no cognizable offence is disclosed in the first information report would be sheer harassment to a citizen and hence the High Court should inter fere in such cases to secure the ends of justice. 17. A question may be raised whether a single Judge of this Court can hold a Full Bench decision on this Court to be no longer good law. In my opinion though ordinarily a Single Judge is bound to follow a Full Bench deci sion of the same court, he should not follow the said decision if it is contrary to a Supreme Court decision. In my opinion though ordinarily a Single Judge is bound to follow a Full Bench deci sion of the same court, he should not follow the said decision if it is contrary to a Supreme Court decision. In this connection I may refer to Article 141 of the Constitution which says "the law declared by the Supreme Court shall be binding on all "courts within the territory of India". It may be noticed that there is no corresponding provision in the Constitution making decisions of the High Court binding on lower courts or on smaller benches of the High Court, though by the theory of precedents they are binding. 18. The fact there is no corresponding provision for High Courts like Article 141 shows that the intent of the Constitution-makers was to make Supreme Court decisions more authoritative, peremptory and binding than High Court decision. Even the obiter of a Supreme Court decision is binding, though not of the High Court. Thus, is my opinion, it is the undoubted duty of a Single Judge to follow the Supreme Court decision and not to follow the Full Bench decision of the High Court if there is inconsistency between the two. In my opinion there is inconsistency between Bhajan lals and Pavithrans decisions on the one handand Ram lal Yadavs decision on the other hand because while the former do not make any distinction between pre charge-sheet and post charge-sheet stages for the purpose of interference under Section 482, Cr. P. C. , the latter has made such a distinction. The former decisions, being of the Supreme Court, will therefore prevail. 19. In the circumstances, I hold that the judgment of the Full Bench of this Court in Ram lal Yadavas case (supra) is no longer good law in view of the subsequent decisions of the Supreme Court. The correct legal position is that the High Court in exceptional circumstances has power under Section 482, Cr. P. C. to quash the police investigation and/or quash the first information report and/or stay the arrest of the applicant. The correct legal position is that the High Court in exceptional circumstances has power under Section 482, Cr. P. C. to quash the police investigation and/or quash the first information report and/or stay the arrest of the applicant. These circumstances are men tioned in paragraph 108 of Bhajan lals case and there may be also some other exceptional circumstances (since the 7 grounds mentioned in paragraph 108 of Bhajan lals case are only illustrative and not exhaustive) and the High Court can interfere in these exceptional circumstances even prior to the submission of the charge-sheet. 20. With these observations this application is allowed. The first information report filed by Bal Mukund Maurya dated 23-3-1994, copy of which is Annexure-5 to the affidavit in support of this application and the police investigation in the proceeding in Criminal Case No. 142-A of 1994 under Sections 143, 504, 506,1- P. C. , P. S. Kotwali, district Ghazipur are quashed. No order as to costs. Application allowed. .