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2010 DIGILAW 2907 (ALL)

Harmendra Singh v. State of U. P.

2010-09-21

VINOD PRASAD

body2010
JUDGMENT: Vinod Prasad, J. The applicant Harmendra Singh,through the present Application has invoked inherent jurisdiction of this, U/S 482 of the Code, with the prayers that proceedings of Complaint Case No.130 of 1991, Smt. Jamuna Devi Vs. Jagdish Singh @ Jagjeet Singh, pending in the court of Chief Judicial Magistrate, Jhansi for offences under Sections 420, 467, 120B, 406 IPC, P.S. Nawabad, District Jhansi against him be quashed. Subsequent payer is for stay of further proceedings of trial court pending disposal of this 482 Application. 2. In nutshell background facts are that one Jamuna Devi widow of Bansi Lal Sahu lodged a complaint (Annexure No.1) against applicant Harmendra Singh, his father Jagdish Singh @ Jagjeet Singh, Uma Shankar and Preetam Singh son of Hari Singh for committing offences U/Ss 420, 406, 120-B, 467 IPC, which was registered as Complaint Case No.2053 of 1982 in the court of C.J.M., Jhansi. Following procedure of complaint case statement of complainant under Section 200 Cr.P.C. (Annexure No.2) and that of her witness Ayodhya Prasad under section 202 of the Code (Annexure No.3) were recorded on 30.1.1982 and 11.2.1982 respectively. Finding prima facie offences being disclosed,accused persons were summoned under Sections 420, 406, 120B, 467 IPC by the trial Magistrate on 11.2.1982 . 3. Against summoning order, accused Jagdish Singh @ Jagjeet Singh and others approached this Court in 482 Cr.P.C. Application Number 1583 of 1982 (Jagjeet Singh and others Vs. Smt. Jamuna Devi) in which this Court on 17.3.1982 had granted a stay order, staying further proceedings of the trial court. Meanwhile, a compromise was accorded between complainant and accused persons and the same was filed before C.J.M., Jhansi on 20.4.1990 Vide Annexure No.5. The said compromise was signed by complainant Jamuna Devi and accused Jagdish Singh @ Jagjeet Singh, Preetam Singh and applicant Harmendra Singh. Along with the compromise an affidavit of complainant Jamuna Devi was also annexed, which was sweared on 19.4.1990. Since accord was reached between the contesting sides, accused applicant in this Court prayed that their 482 Cr.P.C. application 1583 of 1982 be dismissed as become infructous. In view of aforesaid statement, vide Annexure No.6, the aforesaid Criminal Miscellaneous Application was dismissed and interim order dated 17.3.1982 was vacated on 4.12.1990. Meanwhile, the trial vacillated from one Court to another Court without above compromise application filed by the complainant and the accused be decided. In view of aforesaid statement, vide Annexure No.6, the aforesaid Criminal Miscellaneous Application was dismissed and interim order dated 17.3.1982 was vacated on 4.12.1990. Meanwhile, the trial vacillated from one Court to another Court without above compromise application filed by the complainant and the accused be decided. Pendente lite trial sole witness of complainant Ayodhya Prasad expired in the year 1994 and complainant Jamuna Devi also expired on 2.5.2002. In respect of demise of complainant, a police report was submitted by police station Sipri Bazar, vide Annexure No.7. Another interesting feature of the case occurred meanwhile was that out of five accused but for applicant, all other four accused Jagjeet Singh, Preetam Singh son of Kishan Singh, Uma Shanker and Preetam Singh son of Hari Singh also expired in between the years 1992 to 2000. The present applicant, therefore, was left all alone to contest the case from both the sides. Since stay oder was vacated by this Hon'ble Court in 482 Cr.P.C. application filed by the applicant, therefore, non-bailable warrant has been issued against the applicant, which is clear from copy of the order-sheet of the trial court Annexure No.8 to this Application. Hence, present Application under Section 482 Cr.P.C. with the prayer that aforesaid prosecution of the applicant be quashed. I have heard Sri Akhilesh Srivastava, learned counsel for the applicant and learned AGA in opposition. 4. Learned counsel for the applicant submitted that the dispute between the complainant and the accused persons was in the nature of a civil dispute regarding sale of immovable property of House No.204 with out any criminal contents and hence prosecution of the applicant is illegal. It was further submitted that complaint was lodged after an inordinate delay of fourteen years in the year 1982 whereas incident was alleged to have occurred on 27.1.1968 and because of such delay trial of the applicant deserves to be quashed. It was further submitted that since complainant Jamuna Devi and her sole witness Ayodhya Prasad both had expired and since heirs of complainant Jamuna Devi, namely, Ram Swaroop and Shyam Swaroop did not got their names impleaded and got them transposed as complainant under Section 302 of the Code, prosecution of complaint case cannot proceed further as there shall be nobody to prosecute the sole accused applicant. It was next submitted that in view of Section 249 of the code, accused persons should have been discharged, which has not been done therefore, prosecution of applicant is nothing but a fruitless exercise with result known and predetermined and therefore deserves to be quashed. It was additionally submitted that applicant had preferred a second 482 Cr.P.C. Application in this Court, in which this Court had directed compromise (Annexure No.9) to be considered in accordance with law vide its order dated 7.5.2010 passed in aforesaid 2nd Criminal Miscellaneous Application No.15898 of 2010, vide Annexure No.10, to the instant Application but the same has not been considered as yet and trial court is impressing upon presence of the applicant. Learned counsel further submits that the impugned order dated 18.6.2010 issuing non-bailable warrant and proclamation under Section 82 Cr.P.C. by C.J.M. Jhansi, on the peculiar facts of the case is wholly illegal, as securing presence of the applicant in the trial will not serve any purpose at all. It was submitted that neither complainant nor her witness are alive and therefore, there is nobody to prosecute the complainant and consequently there was no necessity for C.J.M., Jhansi to ensure presence of the applicant, who is the sole surviving party in the trial. It was, therefore, submitted that the prosecution of the applicant be quashed. Learned AGA also could not support the reasons why C.J.M, Jhansi wants to impress upon presence of the applicant when infact the fate of the case was pre-determined. 5. I have considered the contentions of both the sides. What is not in dispute is that the complainant of aforesaid complaint case and her sole witness both are dead. Out of five, four accused have also expired. It is only the applicant, who is the sole surviving party in the aforesaid complaint case from both the sides. Presence of the applicant in the trial is not going to serve any useful purpose. Prosecution of the complaint case lies with the complainant and since she has expired, there is nobody to prosecute the complaint. As recorded above, none of her two sons nor any other person came forward to get himself/themselves transposed as complainant and sought permission from the Court under Section 302 of the Code to prosecute the sole surviving applicant accused. Prosecution of the complaint case lies with the complainant and since she has expired, there is nobody to prosecute the complaint. As recorded above, none of her two sons nor any other person came forward to get himself/themselves transposed as complainant and sought permission from the Court under Section 302 of the Code to prosecute the sole surviving applicant accused. In such a view, the prosecution of the applicant is nothing but his harassment without any fruitful purpose. Neither the averments of the complaint nor statements recorded under Section 200 and 202 can be verified by the Court. Since there is no surviving person to prosecute the applicant, prosecution of the applicant will be an empty formality. Otherwise also I am of the view that it was a dispute regarding immovable property. Parties have already entered into a compromise more than two decades ago, which compromise was also filed before the trial Magistrate in the year 1990. It is a matter of concern that said compromise could not be decided by the trial court even after a gap of two decades. Occurrence had taken place in the year 1968, more than four decades ago and therefore, since parties had entered into a compromise, interest of justice would be served best by putting the compromise to life an execute it. 6. In the above scenario, I am of the view that prosecution of the applicant deserves to be quashed. In the above opinion, I draw support from the following decisions of the Apex Court. In Nikhil Merchant versus CBI: AIR 2009 428 it has been held as under :- "23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised? 24. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B. S. Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise. 25. We, therefore, set aside the order passed by the High Court dismissing the petitioner's revision application No.49 of 2003 in Special Case No.80 of 1998 and quash the proceedings against the appellant. The appeal is accordingly allowed." In Vakil Prasad Singh versus State of Bihar : AIR 2009 SC 1822 it has been held as under :- "15. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal prosecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time frame for conclusion of trial. 16. Tested on the touchstone of the broad principles enumerated above, we are convinced that in the present case appellant's constitutional right recognised under Article 21 of the Constitution stands violated. It is manifest from the facts narrated above that in the first instance investigations were conducted by an officer, who had no jurisdiction to do so and the appellant cannot be accused of delaying the trial merely because he successfully exercised his right to challenge an illegal investigation. Be that as it may, admittedly the High Court vide its order dated 7th September, 1990 had directed the prosecution to complete the investigation within a period of three months from the date of the said order but nothing happened till 27th February, 2007 when, after receipt of notice in the second petition preferred by the appellant complaining about delay in investigation, the Superintendent of Police, Muzaffarpur directed the Deputy Superintendent of Police to complete the investigation. It was only thereafter that a fresh chargesheet is stated to have been filed on 1st May, 2007. It is also pertinent to note that even till date, learned counsel for the State is not sure whether a sanction for prosecuting the appellant is required and if so, whether it has been granted or not. We have no hesitation in holding that at least for the period from 7th December, 1990 till 28th February, 2007 there is no explanation whatsoever for the delay in investigation. We have no hesitation in holding that at least for the period from 7th December, 1990 till 28th February, 2007 there is no explanation whatsoever for the delay in investigation. Even the direction issued by the High Court seems to have had no effect on the prosecution and they slept over the matter for almost seventeen years. Nothing could be pointed out by the State, far from being established to show that the delay in investigation or trial was in any way attributable to the appellant. The prosecution has failed to show any exceptional circumstance which could possibly be taken into consideration for condoning a callous and inordinate delay of more than two decades in investigations and the trial. The said delay cannot, in any way, be said to be arising from any default on the part of the appellant. Thus, on facts in hand, in our opinion, the stated delay clearly violates the constitutional guarantee of a speedy investigation and trial under Article 21 of the Constitution. We feel that under these circumstances, further continuance of criminal proceedings, pending against the appellant in the court of Special Judge, Muzaffarpur, is unwarranted and despite the fact that allegations against him are quite serious, they deserve to be quashed. 17. Consequently, the appeal is allowed and the proceedings pending against the appellant in Special Case No. 29 of 1987 are hereby quashed." In S.Rama Krishna Versus S.Rami Reddy : AIR 2008 SC 2066 it has been observed by the apex court as follows:- "12. The High Court itself had come to the finding that the respondents were not interested in getting the matter prosecuted. Despite the same, it allowed their appeal, opining that any lis between the parties should be decided on merits rather than on technicalities. On what basis such a statement of law was made is not known. No precedent was cited; no reason has been assigned. The High Court failed to take into consideration the fact that it was dealing with an order of acquittal and, thus, the principle of law which was required to be applied was that, if two views are possible, a judgment of acquittal should not ordinarily be interfered with. There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. There exists a distinction between a civil case and a criminal case. Speedy trial is a fundamental right of an accused. The orders passed by the competent court of law as also the provisions of Code of Criminal Procedure must be construed having regard to the Constitutional scheme and the legal principles in mind. 13. The High Court, in our opinion, therefore, misdirected itself in passing the impugned judgment. It can therefore not be sustained. We set aside the order of the High Court accordingly. The Appeal is allowed." 7. From the above discussion it is perceptibly clear that trial of the applicant is nothing but an abuse of the process of the court requiring interference by this court to secure ends of justice. 8. Concludingly, this Criminal Miscellaneous Application is allowed. Prosecution of Complaint Case No.130 of 1991, Smt. Jamuna Devi Vs. Jagdish Singh @ Jagjeet Singh, pending in the court of Chief Judicial Magistrate, Jhansi for offences under Sections 420, 467, 120B, 406 IPC, P.S. Nawabad, District Jhansi is hereby quashed. This application is allowed.