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Madhya Pradesh High Court · body

2012 DIGILAW 849 (MP)

Gopal Ji Singh; Narendra Singh v. State of M. P.

2012-09-03

R.C.MISHRA

body2012
Judgment This common order shall govern disposal of all the four cases, as, arising out of the same proceedings, pending as Special Case No. 22/2010, before the Special Judge [under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act')] at Satna, they are interlinked. 2. M.Cr.C. Nos. 407/11 and 1296/11 are the petitions, under Section 482 of the Code of Criminal Procedure (for brevity 'the Code'), for quashing of the order dated 23-11-2010, taking cognizance of the offence punishable under Section 20 (b) of the Act against the petitioners namely, Gopal Ji Singh and Narendra Singh, who are also the revisionists in Criminal Revision Nos. 65/11 and 194/11 and the consequent proceedings whereas the revisions are directed against the order dated 6-12-2010, framing charge of the offence punishable under Section 20 (a) (i) of the Act against them as well as Shyam Ji Singh, who is none other than the elder brother of Narendra Singh and younger brother of Gopal Ji Singh. 3. As per the prosecution version,- In the early morning of 21-10-2010, upon a credible information to the effect that all the three brothers, viz., Shyam Ji Singh, Narendra Singh and Gopal Ji Singh, residing jointly in the house located in Chhota Tola, Hiloundha, had grown some Ganja plants in the Aangan (Kolia) thereof, M.A. Khan", posted as Sub-Inspector at Police Station, Nagod after observing the statutory formalities, proceeded to the house along with members of the Police Force and Panch witnesses Dinesh and Rajju. After obtaining consent of all the three, he entered into the house and found as many as 10 plants of Ganja 5-10 ft. in length and 1-8 inches in breadth standing in the Aangan located in the backside of the house. The plants were duly seized and the sample thereof was forwarded to FSL, Sagar. Corresponding report indicated that the article referred to for examination was Ganja. 4. However, the SHO R.S. Upadhyay, while explaining that the complicity of Gopal Ji Singh and Narendra Singh could not be established from the evidence collected during investigation, submitted a charge-sheet before the Special Court on 22-11-2010 as against co-accused Shyam Ji Singh. 5. Corresponding report indicated that the article referred to for examination was Ganja. 4. However, the SHO R.S. Upadhyay, while explaining that the complicity of Gopal Ji Singh and Narendra Singh could not be established from the evidence collected during investigation, submitted a charge-sheet before the Special Court on 22-11-2010 as against co-accused Shyam Ji Singh. 5. Learned Special Judge, instead of taking cognizance of the offence against Shyam Ji Singh, decided to grant opportunity, of being heard to the first informant, viz., M.A. Khan before acting upon the police report to the effect that no case was made out against Narendra Singh or Gopal Ji Singh and, accordingly, examined him on the same day. On the following day, i.e., 23-11-2010, learned Special Judge, for the reasons assigned in the order forming subject matter of the petitions, disagreed with the police report, so far as it related to Narendra Singh or Gopal Ji Singh, who were produced before him in custody and took cognizance of the offence against them also. Thereafter, as indicated already, by way of the order dated 6-12-2010, all the three accused named in the FIR were charged with the offence punishable under Section 20 (a) (i) of the Act. 6. Learned Counsel for the petitioners have strenuously contended that continuation of the proceedings against them for the offence is an abuse of the process of the Court in view of the following considerations :- (i) In taking cognizance of the offence against the petitioners, learned Special Judge acted without jurisdiction as well as contrary to law. (ii) The conclusions suggesting that none of them was involved in cultivation of the prohibited plants and that part of Aangan, where the plants were found, was in an exclusive cultivating possession of their brother Shyam Ji Singh, were based on an intensive investigation conducted by the SHO. (iii) There was absolutely no justification for framing of the charge against any one of them in absence of any additional material on record to indicate his concern with cultivation of the cannabis plants. 7. In reply, learned Government Advocate, while supporting the orders in question, has submitted that learned Special Judge was competent to proceed against the petitioners, though not sent up for trial by the police. 8. 7. In reply, learned Government Advocate, while supporting the orders in question, has submitted that learned Special Judge was competent to proceed against the petitioners, though not sent up for trial by the police. 8. Elaborating argument on aspect (i) (above), learned Counsel for the petitioners have stated that the Special Court, being a Court of Session, could not straightway take cognizance of the offence directly by circumventing the interdict imposed by Section 193 of the Code. Even otherwise, according to them, the power, under Section 319(1) of the Code, could be exercised against persons other than one arraigned in the charge-sheet in the light of the fresh evidence brought on record during trial. 9. As rightly pointed out by learned Senior Counsel, the view taken by a two-Judge Bench of the Apex Court in Kishun Singh Vs. State of Bihar, (1993) 2 SCC 16 , that on committal of a case to the Sessions Court, the bar created by Section 193 is lifted and, therefore, it can summon any person whose complicity in the commission of the crime can prima facie be gathered from the material on record was not followed by a co-equal Bench in Raj Kishore Prasad Vs. State of Bihar, (1996) 4 SCC 495 , and a three Judge Bench in Ranjit Singh Vs. State of Punjab, 7. This appeal has been filed against the impugned order dated 28-12-2011 passed by the Family Court, Raigarh (C.G.) in Cr.MJC No. 17/2011. 8. The appellant had moved an application under Section 125 of Cr.PC, for obtaining an order for maintenance. The same has been dismissed, against which, the instant appeal has been filed. 9. This appeal has been filed under Section 19 (1) of the Family Courts Act. Before proceedings further, it is necessary to peruse the provisions of Sections 19 (1), (2) and (4) of the Family Courts Act, which are reproduced below :- "19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding, in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding." As in sub-section (1), it has been mentioned at the very outset that "Save as provided in sub-section (2)". The provisions of sub-section (2) shall be applicable in every appeal. Sub-section (2) provides that No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973." Chapter IX of Cr.PC relates to the order for maintenance of wives, children and parents. Sections 125 to 128 are in Chapter IX of Cr.PC. Therefore, any order passed under Sections 125 to 128, would come under Chapter IX of Cr.PC. Therefore, there is bar of filing an appeal against the order passed under Chapter IX of Cr.PC. Sub-section (4) provides for a revision, in case, an order has been passed under Chapter IX of Cr.PC, but not being an interlocutory order. Therefore, in view of the specific bar of appeal and the fact that the order under challenge in this appeal has been passed under Chapter IX of Cr.PC, this appeal is not maintainable and the objection raised by the learned Counsel for the respondent is sustainable in the eye of law. 10. In view of the above, the appeal is dismissed as not maintainable. However, this will not debar the appellant to file revision under sub-section (4) of Section 19 of the Family Courts Act, 1984, if the same is permissible under law. 10. In view of the above, the appeal is dismissed as not maintainable. However, this will not debar the appellant to file revision under sub-section (4) of Section 19 of the Family Courts Act, 1984, if the same is permissible under law. 11. The registry is directed to note the above order and raise objections regarding maintainability of the appeal in case the same is filed against the order passed under Chapter IX of Cr.PC. 12. Learned Counsel for the appellant at this stage submits that certified copy of the impugned order be returned back to him. Therefore, the registry shall return the certified copy after substituting xerox copy of the same on record.