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Madhya Pradesh High Court · body

2013 DIGILAW 1540 (MP)

R. P. Singh v. State of Madhya Pradesh

2013-12-10

SUJOY PAUL

body2013
ORDER By filing this petition under Section 482 of Cr. P. C. the petitioners have prayed for quashing the FIR in Crime No.09/2013 registered in Police Station GRP, Gwalior for offence punishable under Sections 420 and 468 of IPC. 2. Brief facts necessary for adjudication of this matter are as under: The petitioners are members of North Central Railway Employee's Union, which is registered with Registrar of Trade Union, Kanpur. The copy of the registration certificate is filed as Annexure-A. It is contended that the said Union has large following. In the recent voting conducted for the purpose of recognition, the petitioners Union secured No.1 position whereas the Union of respondent No.2 was trailing behind at No.3. Attention of this Court is drawn on the document filed at Page 18 which shows the percentage of votes received by the petitioners Union and by other Unions for the purpose of recognition. It is contended that the petitioners Union is NCRES whereas the Union of the respondent No.2 is NCRKS. The petitioners Union secured 56.82% votes whereas respondent No.2's Union secured only 1.53% votes. The case of the petitioners is that the registration of the petitioners Union is still prevailing and subsisting. As per bye-laws of their Union, the petitioners are free to take membership subscription and other funds from their members. In continuation with the legitimate Trade Union activities, the petitioners had collected funds from their members. 3. Shri Prashant Sharma, learned counsel for the petitioners submits that none of the members or the persons from whom subscription or collection was obtained, had lodged any complaint with the police. The respondent No.2 who is office bearer of a rival Trade Union, Allahabad has lodged the FIR, which is called in question. By taking this Court to the averments of the FIR, it is contended that the police has erred in lodging the FIR. It is further contended that earlier the registration of the petitioners Union was cancelled by the Registrar of Trade Union. Against that, the Union filed the case before the Labour Court and the Industrial Court. The said Courts at Allahabad set aside the cancellation of registration order passed by the Registrar of Trade Union. In absence of challenge to the said orders passed by the Labour and Industrial Court at Allahabad (Annexure-C), the said orders have attained finality. Against that, the Union filed the case before the Labour Court and the Industrial Court. The said Courts at Allahabad set aside the cancellation of registration order passed by the Registrar of Trade Union. In absence of challenge to the said orders passed by the Labour and Industrial Court at Allahabad (Annexure-C), the said orders have attained finality. The police authorities have erred in registering the FIR by treating that the petitioners Union does not exist or survive. It is submitted that the registration of FIR is contrary to law. The police authorities cannot examine and opine about the registration process and validity of the registration. For this purpose, under the Trade Unions Act, 1926 there exists statutory registration authority. If the registration authority cancels the registration, it can be called in question before the Court. In the petitioners case, as projected, the Industrial Court in Civil Appeal Nos. 02/2007 and 03/2007, set aside/taken back the order of Registrar, Trade Union, whereby the registration of the petitioners Union was cancelled. 4. Per contra, Smt. Pachauri, learned Deputy Government Advocate for respondent No.1-State supported the FIR and submits that at this stage, no interference is warranted. 5. Shri Vijay Dutt Sharma, learned counsel for the respondent No.2-complainant had taken pains to submit that the police has not committed any error in lodging the FIR. By taking this Court to various documents obtained under RTI (Right to Information Act, 2005) and otherwise, it is contended that the Industrial Court, Allahabad had no authority, jurisdiction and competence to decide the validity of cancellation of registration order passed by the Registrar, Trade Union. It is contended that the said order has to be treated as nullity because it was obtained by the Union by approaching an incompetent Court. The attention is drawn to the notification dated 2nd February, 1944 (Annexure R10). By relying on this notification and the judgment of Allahabad High Court in Annexure R11, it is contended that the Industrial Court did not have jurisdiction to examine the validity of cancellation of registration of the petitioners Union. In addition, it is contended that the petitioners have not taken any steps for restoration of their registration. Attention is drawn on Annexure R14 dated 25/02/2009 and Annexure R15, dated 30/03/2009 in this regard. In addition, it is contended that the petitioners have not taken any steps for restoration of their registration. Attention is drawn on Annexure R14 dated 25/02/2009 and Annexure R15, dated 30/03/2009 in this regard. The Registrar, Trade Union, Uttar Pradesh in certain correspondence has given the opinion that for the purpose of deciding the validity of cancellation of registration under the Trade Unions Act, 1926, different Courts have been given power. Reliance is placed on Annexure R12, dated 16th May, 2013 wherein, the Registrar, Trade Union opined that after the order dated 06/09/2007, the Registrar has not passed any order restoring the registration. Lastly, the reliance is placed by Shri Sharma, on the list of registered Trade Unions filed with Annexure R5. It is contended that these documents make it clear that the petitioners Union is not a valid Union. The petitioners Union is not a registered Trade Union. No other point is pressed by learned counsel for the parties. 6. I have bestowed my anxious consideration on the rival contentions of the parties and perused the record. 7. It is apt to quote relevant portion of FIR on which heavy reliance is placed by learned counsel for the respondents. (Vernacular matter omitted.........Ed.) 8. A simple reading of this FIR, makes it crystal clear that the allegation against the petitioners Union is that they furnished incorrect information before the registering authorities and got their Trade Union registered. The Union was registered prior to establishment of North Central Railway, which is impermissible. It is further alleged that the petitioners have submitted wrong declaration form and on the strength of it, got their Union registered. They are collecting illegal contribution from the employees and, therefore, offence under Sections 406, 409, 420, 467, 468 and 471 of IPC needs to be registered against them. By placing reliance on an order of the Registrar, Trade Union, dated 07/12/2004, it is mentioned in the complaint that the Registration of the petitioners Union was recommended to be cancelled. It is further mentioned that the Registrar, Trade Union by order dated 15-04-2005 cancelled registration of the petitioners Trade Union and said cancellation is not cancelled till date and therefore, collecting subscription from the employees amounts to an offence under aforesaid Sections of IPC. 9. It is further mentioned that the Registrar, Trade Union by order dated 15-04-2005 cancelled registration of the petitioners Trade Union and said cancellation is not cancelled till date and therefore, collecting subscription from the employees amounts to an offence under aforesaid Sections of IPC. 9. On the face of the allegation mentioned in the complaint which is reduced in writing in the shape of FIR, it is clear that the police proceeded on the basis of document dated 15-04-2005, whereby allegedly the petitioners Union's registration was cancelled. However, a bare perusal of the order of Industrial Court ( Annexure C Page 22) shows that the said order of the Registrar, Trade Union, cancelling the registration dated 15-04-2005 was set aside by the Labour Court, Allahabad on 15-06-2007. Other orders of the Registrar, Trade Union, Kanpur cancelling the registration of petitioners Union were put to test before the Industrial Court, Allahabad in Civil Appeal Nos. 02/2007 and 03/2007. The Industrial Court opined as under: (Vernacular matter omitted.........Ed.) 10. The contention of Shri Prashant Sharma, learned counsel for the petitioners was that the Industrial Court's order by which cancellation of registration was set aside, was not put to test by anybody and, therefore, in absence of challenge, it has attained finality. As per this order, the police has no authority to act on cancellation order dated 15-04-2005, which was set aside by the Labour Court. The main contention of Shri Vijay Dutt Sharma, learned counsel for the respondent No.2'' is that as per the notification Annexure R10, dated 2nd February, 1944 and the finding of Allahabad High Court in Annexure R11, Industrial Court had no jurisdiction/competence to decide the validity of cancellation of registration order. 11. In the considered opinion of this Court, the matter which was decided by the High Court of Allahabad was between different parties. The said order does not have the effect of automatic setting aside of the order of Labour Court and Industrial Court Annexure-C. Main question is whether in absence of challenge to the order of Industrial Court, the said order can be said to be void, non-existent and whether this can be so decided by the police authorities. 12. In the considered opinion of this Court, the law on this point is well settled. This is settled in law that an order remains enforceable unless necessary proceedings are taken to get it quashed. 12. In the considered opinion of this Court, the law on this point is well settled. This is settled in law that an order remains enforceable unless necessary proceedings are taken to get it quashed. An aggrieved person cannot presume and decide whether a Court or an authority had jurisdiction or not. If he is of the opinion that the said authority had no jurisdiction, he has to take proper steps to assail the said order. The order Annexure-C is passed by the Industrial Court. Nothing is brought to the notice of this Court that the said order was called in question before any higher forum. In absence thereof, the said order cannot be treated as void order. 13. The Apex Court in (1990)1 SCC 234 : ( AIR 1990 SC 325 ) (Shiv Chander Kapoor v. Amar Bose) in this aspect has opined as under: ' 'void' is meaningless in an absolute sense; and 'unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. In the words of Lord Diplock,' the order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue'. Further, the Apex Court In (1991) 4 SCC 1 ] : (AIR 1991 SC 2219) [State of Punjab v. Gurdev Singh] has opined as under: ' That a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC [(1956)1 All ER 855] wherein Lord Radcliffe observed: (AC pp. 769-70) ' ....An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Elloe RDC [(1956)1 All ER 855] wherein Lord Radcliffe observed: (AC pp. 769-70) ' ....An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' Similarly, the Apex Court in (2004) 2 SCC 377 : ( AIR 2004 SC 1377 ) [Sultan Sadik v. Sanjay Raj Subha] has opined as under:' 'This Court took a similar view observing that once an order is declared nonest by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/ competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.' The Apex Court in (2011) 3 SCC 363 : ( AIR 2011 SC 1140 ) (Krishnadevi Malchand Kamathia and others v. Bombay Environmental Action Group and others) has also held as under: 'It is settled legal proposition that even if an order is void, it requires to be so declared by a competent Forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil [ (1996) 1 SCC 435 ] : ( AIR 1996 SC 906 ); Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., [ (1997) 3 SCC 443 ] : ( AIR 1997 SC 1240 ); M. Meenakshi v. Metadin Agarwal [ (2006) 7 SCC 470 ]; and Sneh Gupta v. Devi Sarup [ (2009) 6 SCC 194 ], this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate Forum.' Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. For setting aside such an order, even if void, the party has to approach the appropriate Forum.' Thus, from the above, it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration.' 14. A simple reading of the aforesaid judgments make it clear that even if the order is void, it has to be declared by the competent forum that it is void or nullity. In absence of any such declaration or challenge to the said order/judgment, the police authorities cannot decide about the validity of the judgment of Labour Court and Industrial Court, Allahabad. 15. The FIR is lodged on the basis of complaint that registration of the petitioners Union was cancelled on 15-04-2005. The reproduced portion of the Industrial Court s judgment shows that the said order dated 15-04-2005 was set aside by the Labour Court. Another order of the Registrar cancelling the registration was also set aside by the Industrial Court. This is settled in law that if an order is set aside, it does not exist in the eyes of law. Thus, the police authorities intended to proceed against the petitioners Union on the basis of an order dated 15-04-2005 which does not exist in view of the finding of the Industrial Court i. e. set aside by the Labour Court. 16. Although Shri V.D. Sharma, relied on Annexure R5 to submit that this document contains list of registered Trade Unions and name of the petitioners Union is absent, a careful reading of the document shows that it was issued before the order of the Industrial Court (Annexure C). Naturally, at that point of time, the cancellation of registration of petitioners Union was under challenge and the matter was sub judice. Once the petitioners Union succeeded from the Industrial Court, the inevitable consequence is that upon setting aside the cancellation of registration order, the registration is automatically revived. No further order or declaration in this regard was required. 17. It is also noticed that the complaint was lodged by the respondent No.2, a leader of rival Trade Union. No member of the petitioners Union came forward with any complaint about any pressure, threat or extortion. No further order or declaration in this regard was required. 17. It is also noticed that the complaint was lodged by the respondent No.2, a leader of rival Trade Union. No member of the petitioners Union came forward with any complaint about any pressure, threat or extortion. It is canvassed by Shri Prashant Sharma, that the petitioners Union secured more votes in recognition election than respondent No.2-Union. In this factual backdrop, it is to be seen whether the aforesaid complaint can be permitted to become a reason for the petitioners prosecution. 18. At the cost of repetition, it is relevant to mention that the whole basis for the complaint is alleged cancellation of registration by order dated 15-04-2005. As discussed above, the said order was cancelled by the Labour Court. Thus, it is clear that respondent No.2 has based its complaint on a 'false' ground. The dictionary meaning of word 'false' means that, which is in essence incorrect, or purposefully untrue, deceitful, etc. Thus, the word 'false' is used to cover only unlawful falsehood. It means something that is dishonest, untrue and deceitful, and implies an intention to perpetrate some treachery or fraud. In jurisprudence, the word 'false' is used to characterize a wrongful or criminal act, done intentionally and knowingly, with knowledge, actual or constructive. [See: (2013) 9 SCC 245 : ( AIR 2013 SC 1048 ) Ravinder Singh v. Sukhbir Singh and others] The foundation of the complaint was a false information by the respondent No.2 about cancellation of registration. The whole story of prosecution is based on this false foundation. 19. This is settled in law that the inherent power of the court in dealing with an extraordinary situation is in the larger interest of administration of justice and for preventing manifest injustice being done. Thus, it is a judicial obligation on the court to undo a wrong in course of administration of justice and to prevent continuation of unnecessary judicial process. It may be so necessary to curb the menace of criminal prosecution as an instrument of operation of needless harassment. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is in built in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. A person cannot be permitted to unleash vendetta to harass any person needlessly. Ex debito justitiae is in built in the inherent power of the court and the whole idea is to do real, complete and substantial justice for which the courts exist. Thus, it becomes the paramount duty of the court to protect an apparently incorrect person, not to be subjected to prosecution on the basis of wholly untenable complaint. [See: (2013) 9 SCC 245 : ( AIR 2013 SC 1048 ) Ravinder Singh v. Sukhbir Singh and others] 20. In R. v. Horseferry Road Magistrates Court, ex p Bennett [(1994) 1 AC 42] it was held as under:' An abuse of process justifying the stay or quashment of prosecution could arise in the following circumstance: (i) where it would amount to misuse/ manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.' In R. Derby Crown Court, ex p Brooks (1984) 80 Cr App R 164 (DC), it was held as under: ' It may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality; or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable.' [See: (2013) 6 SCC 740 : (2013 Cri LJ 2938 (SC)), Chandran Ratnaswami v. K. C. Palanisamy and others.] As per these judgments, it is clear that when Court's sense of justice is offended, interference can be made. The Apex Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 : (2005 Cri LJ 92 (SC)), has observed as under: '8. .. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuation of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.' The Apex Court further in Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736 : ( AIR 2006 SC 2780 ) has observed as under:' 13..... Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.' The Apex Court in Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 : ( AIR 2008 SC 251 ) has also observed as under: '46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused.' 21. In view of the aforesaid judgments, it is clear that the criminal prosecution cannot be permitted to be used as a weapon of harassment or to settle the scores. In the present case, in the opinion of this Court, the complaint is lodged with an ulterior motive to pressurize the petitioners. This may be because of Trade Union's rivalry. The procedure for registration of Trade Union and cancellation of it is prescribed in the Trade Unions Act, 1926. Whether the registration is rightly given or not, can be examined only by the competent statutory authority established under the Trade Unions Act. The police authorities have no competence to give opinion on this aspect. Thus, the stand taken in the reply of the police/State that before formation of Railway Zone, registration of petitioners Union was improper, cannot be accepted. In the aforesaid backdrop, in my opinion, if the prosecution is permitted to be continued on the basis of aforesaid false complaint, it will be an abuse of process of law. Apart from this, Section 28L provides protection to the persons who are involved in legitimate Trade Union activities. In the aforesaid backdrop, in my opinion, if the prosecution is permitted to be continued on the basis of aforesaid false complaint, it will be an abuse of process of law. Apart from this, Section 28L provides protection to the persons who are involved in legitimate Trade Union activities. The said Section of the Trade Unions (Madhya Pradesh Amendment) Act, 1968 reads as under:' 28L. Protection of action under the Act. No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or purported to be done under this Act.' As per this provision, the petitioners are protected. They were collecting the subscription from their members, which is a routine Trade Union activity. For this, they cannot be prosecuted. 22. For the reasons stated above, the impugned FIR in Crime registered against the petitioners Union at Police Station GRP, Gwalior, for offence punishable under Sections 420 and 468 of IPC, is set aside. The petition is allowed. No cost. Petition allowed.