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2010 DIGILAW 635 (ALL)

RUPWATI v. STATE OF U. P.

2010-02-18

RAJESH CHANDRA

body2010
JUDGMENT Hon’ble Rajesh Chandra, J.—This application under Section 482, Cr.P.C. has been moved with a prayer that the Charge Sheet dated 4.1.2007 numbered as 2/07, under Sections 147, 148, 323, 307, 324, 325, 326, 504, 506, 336, I.P.C. may be quashed and till the disposal of the present application the proceedings of Criminal Case No. 2811/07 pending in the Court of Judicial Magistrate, District G.B. Nagar. 2. From the perusal of the papers filed with the application it appears that the complainant Satpal moved an application under Section 156 (3), Cr.P.C. against Jagmal and 9 others including the present applicant Smt. Rupwati. In that application, interalia, it was alleged that on 6.5.2006 the complainant Satpal received an information that the wife of Naresh had died in village Govilla, P.S. Jahagirpur, District G.B. Nagar. The complainant Satpal and others then went to village Govilla and when they were sitting at the house of Naresh, the accused assaulted them. Accused Yaspal also opened fire, from the country made pistol with an intent to commit murder. Complainants companion Jatan was caused injuries with “Palkati” and “Khatpawari”. In this incident the complainant Madan Singh also sustained injuries. 3. On this application the Magistrate ordered that the case be registered and investigated. The police then registered a case against the accused persons. The accused then moved an application for surrender before the Magistrate, whereupon a report was called for from the Police Station. It was reported that the accused are wanted for the offences under Sections 147, 148, 323, 324, 506, 504, I.P.C. The applicant and other accused were then granted bail. However when the charge sheet was filed by the investigating officer he added Sections 307, 324, 326, 506, I.P.C. as well. 4. The learned counsel for the applicant at the time of arguments made a single submission that the co-accused Jagmal, Sukkhu, Kallu, Vishnu, Dinesh, Yaspal and Malkher had filed Criminal Misc. Application No. 28302/2007 in the High Court in which the following order was passed on 4.12.2007. “Heard Sri A.B.L. Gour learned Senior Advocate assisted by Sri Saurabh Gour advocate for the applicants and the learned and also perused the materials on record. Application No. 28302/2007 in the High Court in which the following order was passed on 4.12.2007. “Heard Sri A.B.L. Gour learned Senior Advocate assisted by Sri Saurabh Gour advocate for the applicants and the learned and also perused the materials on record. It is said that the accused applicants were already on bail for the offence under Sections 147, 148, 323, 336, 325, 504, I.P.C. But on the basis of medical report then collected by the Investigation officer police has now submitted charge sheet and added the offence under Sections 324, 326, 504, 307, I.P.C. Let the accused applicants be re-admitted on bail for the added offence under Sections 324, 326, 504, 307, I.P.C. subject to their furnishing personal bonds with two sureties each of the like amount to the satisfaction of the Court concerned. Application is disposed of accordingly.” 5. The learned counsel requested that similar orders may be passed in the present case so that the applicant Smt. Rupwati may also file her bail bonds in the added Sections. 6. I considered over the said argument and I feel that the said prayer cannot be allowed in view of the judgment of Hon’ble Supreme Court in Hamida v. Rashid @ Rasheed and others, 2007(58) ACC 577. 7. In Hamida’s case (supra) the accused persons were on bail for offences under Sections 324, 352, 506, IPC. The case was later on converted to one under Section 304, IPC. The accused persons then approached the Allahabad High Court by filing a petition under Section 482, Cr.P.C. which was disposed of by making the following order : “In view of the facts and circumstances of the case and the submissions made by the learned counsel for the applicants, it is directed that if the applicants appear before the Court concerned and furnish their personal bonds and two sureties each in the like amount to the satisfaction of the Court concerned the same shall be accepted under Section 304, IPC. With these observations, the application is disposed of finally.” 8. With these observations, the application is disposed of finally.” 8. The complainant of that case then filed a criminal appeal before Hon’ble the Apex Court and the Apex Court considering the powers of the High Court under Section 482, Cr.P.C. laid down as under : “It is well established principle that inherent power conferred on the High Court under Section 482, Cr.P.C has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482, Cr.P.C. were examined in considerable detail in Madhu Limaye v. State of Maharashtra, 1978 (15) ACC 184 (S.C.) and it was held as under : “The following principles may be stated in relation to the exercise of the inherent power of the High Court- (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.” 9. Hon’ble the Apex Court also referred to the another judgment of the Apex Court in State v. Navjot Sandhu, (2003) 6 SCC 641 and held as under : “.......The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment” 10. The Apex Court again referred another judgment of the Apex Court in Arun Shanker Shukla v. State of U.P., 1999 (39) ACC 423 (SC) and observed as under : “The High Court had entertained a petition under Section 482, Cr.P.C. after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal, this Court set aside the order of the High Court after reiterating the principle that is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482, Cr.P.C could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482, Cr.P.C. cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.” 11. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482, Cr.P.C. cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.” 11. The Hon’ble Apex Court then considered the effect of the order of the High Court by which the accused persons were allowed to furnish their personal bond and surety bonds for the offence under Section 304, IPC and observed as under : “In the case in hand, the accused respondents could apply for bail afresh after the offence had been converted into one under Section 304, IPC. They deliberately did not do so and filed a petition under Section 482, Cr.P.C.in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the accused respondents had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition under Section 482, Cr.P.C and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304, IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506, IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304, IPC without any Court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail under Section 439, Cr.P.C., though available to the accused respondents, having not been availed of, the exercise of power by the High Court under Section 482, Cr.P.C is clearly illegal and the impugned order by it has to be set aside.” 12. In view of the entire above discussions, it is clear that the relief prayed for by the learned counsel for the applicant cannot be granted. 13. In view of the entire above discussions, it is clear that the relief prayed for by the learned counsel for the applicant cannot be granted. 13. Learned counsel further argued that the similarly placed accused persons may be treated equally and since the other accused were allowed by the High Court vide order dated 4.12.07 to file bail bonds in added Sections, the present applicant may also be given the same relief. 14. I considered over the matter and I feel that in view of the above judgment of the Hon’ble Apex Court, the relief cannot be granted. Even otherwise if any relief has been given by the High Court going beyond the powers given under Section 482, Cr.P.C.,the same mistake cannot be repeated by granting the same relief. 15. In view of the entire above discussions, the present petition is dismissed. However, regard being had to the order of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437 in which the Apex Court had approved the Full Bench decision of this Court in Amarwati v. State of U.P., 2005 Cr LJ 755 (All), it is directed that if any application is preferred by the applicant before the court, the same shall be considered on its own merits in accordance with the law laid down by the Apex Court as above. ————