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2013 DIGILAW 2481 (ALL)

SHIVRAJ SINGH v. STATE OF U. P.

2013-10-01

ANIL KUMAR SHARMA

body2013
Anil Kumar Sharma, J.:- I have heard the learned counsel for the applicants and the learned counsel for the respondents and perused the papers filed along with the application. 2. This application seeks to quash the proceedings of Complaint case no. 449/07 Khyali Ram Vs. Shivraj Singh and another u/s 452, 392, 504 and 506 IPC pending in the Court of Judicial Magistrate-II, Bareilly. 3 Facts germane to the instant application are that the opposite party no. 2 filed a criminal complaint on 17.7.1998 in the Court of Chief Judicial Magistrate, Bareilly against the applicant and one another for commission of offences punishable u/s 452, 392, 500, 504 and 506 IPC alleging that on 7.4.1996 the applicant being Station Officer of P. S. Bithri Chainpur along with sub-inspector Badkau Singh and other police force raided his house at about 7 p.m. in the absence of the complainant. He enquired about Jagdish from his wife and when she declined, he abused her and started damaging the house-hold goods. He threatened her to get Jagdish arrested else he would kill her husband in encounter. The police also raided the house of her daughter's in-laws in village Khai Kheda P. S. Bhuta, beat her family members and challaned u/s 151 Cr. P. C. Thereafter the police party went to the in-laws of the complainant ( opposite party no. 2) and assaulted his cousin brother-in-law Shiv Kumar. The complaint further stated that due to the highhandedness of the police he has been defamed and could not pursue his agriculture. He sent complaints to District Magistrate, Bareilly, Senior Superintendent of Police and DIG of Bareilly, but no action was taken. In enquiry under Chapter XV Cr. P. C., the opposite party no. 2 examined himself u/s 200 Cr. P. C. and produced his wife Smt. Maya Devi and close relative Ved Pal u/s 202 Cr. P. C. After perusal of complaint and evidence led by the opposite party no. 2, the Magistrate summoned the applicant and his associate sub-inspector to face trial for the offences punishable u/s 452, 392, 500, 504 and 506 IPC vide order dated 17.10.1998. 4. Learned counsel for the applicant has contended that the applicant has conducted raid on 7.4.1996 at the house of the respondent no. 2, the Magistrate summoned the applicant and his associate sub-inspector to face trial for the offences punishable u/s 452, 392, 500, 504 and 506 IPC vide order dated 17.10.1998. 4. Learned counsel for the applicant has contended that the applicant has conducted raid on 7.4.1996 at the house of the respondent no. 2 to nab his nephew Jagdish and Onkar who were named in the FIR pertaining to case u/s 302 IPC and for this purpose he has made entry in the general diary of the police station; that the instant complaint is the counter blast to action taken by the applicant in his official capacity and as such no cognizance can be taken by the Court without sanction of the competent authority u/s 197 Cr. P. C.; that the complaint had been filed more than two years after the aforesaid raid and no details of the damage caused to the property of the complainant or the articles allegedly looted by the police party had been given; that the learned Magistrate has mechanically taken cognizance in the case without perusing the evidence led by the complainant u/s 200 or 202 Cr. P. C. Per contra learned counsel for the respondent no. 2 has supported the impugned order as also the criminal proceedings pending against the applicant before the learned Magistrate. He further submitted that the applicant had full knowledge of the order passed by learned Magistrate on 17.10.1998 and this Court vide order dated 22.11.2006 had issued direction to the S. P., Bareilly to ensure compliance of the order passed by the Chief Judicial Magistrate, Bareilly regarding appearance of the accused persons. 5. On perusal of the material on record it transpires that Jagdish and Onkar, nephews of the respondent no. 2 were named in a criminal case u/s 307, 324, 323, 504 IPC, which was later on converted into Section 302 IPC. The incident took place on 6.4.1996 at 6.30 p.m., and the report with police station Bithri Chainpur was lodged at 9.45 p.m., i. e. about three hours after the incident. The applicant at the relevant time was Station Officer of the Police Station. The G. D. report no. 2, 0045 hours of the Police Station shows that the applicant along with other police force left for village Saidupur Kurmiyan in search of accused Jagdish and others. The case set up by the respondent no. The applicant at the relevant time was Station Officer of the Police Station. The G. D. report no. 2, 0045 hours of the Police Station shows that the applicant along with other police force left for village Saidupur Kurmiyan in search of accused Jagdish and others. The case set up by the respondent no. 2 in his complainant is also that the applicant and his associated reached at his house and enquired about the whereabouts of Jagdish and when his wife pleaded ignorance about him, she was abused and started damaging the house-hold goods. There is nothing in the complaint to show that any articles were looted by the police personnel from the house of the respondent no. 2. Contrary to these averments of the complaint, in enquiry under Chapter XV Cr. P. C. the respondent no. 2 has considerably improved his story by stating that the applicant and his associates have looted jewelery from his house. Admittedly at the time of raid by the police, the complainant was not present in his house. Except the wife of the respondent no. 2, no other witness had been examined to prove the factum of robbery. The other witness examined u/s 202 Cr. P. C. is Ved Pal, who is father-in-law of the daughter of respondent no. 2 and resides in village Khai Kheda P. S. Bhuta District Bareilly. He had spoken about the incident that took place on 8.4.1996. He had given hearsay evidence about the incident dated 7.4.1996 that allegedly took place at the house of the respondent no. 2. No reason could be assigned as to why the complaint was not filed at the earliest, when no action was allegedly taken against the applicant. The complaint had been filed more than two years after the incident, for which no satisfactory explanation had been given either by the respondent no. 2 in his complaint or by his learned counsel in this Court during the course of arguments. Thus, there was no satisfactory evidence what to say prima facie case to make out any case against the applicant. 6. As regards absence of previous sanction before taking cognizance against the applicant u/s 197 Cr. P. C., learned counsel for the applicant has placed reliance on the cases of Anjani Kumar Vs. State of Bihar and another ( 2008) 2 SCC ( Cri) 582 and Rakesh Kumar Mishra Vs. 6. As regards absence of previous sanction before taking cognizance against the applicant u/s 197 Cr. P. C., learned counsel for the applicant has placed reliance on the cases of Anjani Kumar Vs. State of Bihar and another ( 2008) 2 SCC ( Cri) 582 and Rakesh Kumar Mishra Vs. State of Bihar and others ( 2006) 1 SCC ( Cri) 432. Both these cases pertain to searches made by government official/police. In the case of Anajani Kumar ( supra) it was observed that the complaint was filed against government official as a counterblast to action taken by him in his official capacity. It was also found that the complaint was an afterthought to rope in the appellant on account of action taken by him against the complaint. The Hon'ble Court found that the case of the nature mentioned at Category ( g) of Bhajan Lal's case 1992 Supp ( 1) SCC 335 ( noted hereinafter) and continuance of such proceedings against the appellant would amount to abuse of process of law and consequently they were quashed. In the case of Rakesh Kumar Mishra ( supra), the appellant, a police officer conducted search without warrant ( though other procedure followed) at the residential premises of the respondent, whose son was implicated in a case of dacoity. It was alleged by the complainant that the search was motivated and was for purpose of humiliating and harassing the complainant and his son and after enquiry in the complaint, the Magistrate took cognizance of the offences punishable u/s 342, 389, 469, 471 and 120-B IPC against appellant without sanction u/s 197 Cr. P. C. The High Court upheld the order of the Magistrate, which was set aside by the Apex Court observing that prima facie it is found that the act or omisson for which the accused was charged had reasonable connection with discharge of his duty and then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed. The facts of the instant case are quite similar to the aforesaid cases, and thus no cognizance on the complaint of respondent no. 2 shall be taken except with the previous sanction for his prosecution. the applicant cannot be prosecuted without previous sanction. 7. It is trite that the exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Cr. 2 shall be taken except with the previous sanction for his prosecution. the applicant cannot be prosecuted without previous sanction. 7. It is trite that the exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Cr. P. C. to have the complaint or the charge sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. The First information report sets the ball to roll and then the law takes its own course and the investigation ensues in accordance with the provisions of the Code. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. However, if on perusal of the complaint or the charge sheet the Court is able to conclude that the allegations contained therein on the face of it does not constitute or disclose any offence, there ought not to be any hesitation to deal with the situation as is required under the law. Generally criminal proceedings in the normal course of event ought not to be scuttled at the initial stage unless the same amount to an abuse of the process of law 8. In Madhavrao Jiwajirao Scinida & Ors. Vs. Sambhajirao Chandrojirao Angre & ors. ,1988 SCR ( 2) 930, the Apex Court has observed as under: "The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court while taking into considering the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 9. In the case of State of Haryana and others Vs. Ch. In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others 1991 ( 28) ACC 111, the Supreme Court after analysing the law and the various case-laws has laid down certain guidelines for exercise of jurisdiction u/s 482 Cr. In the case of State of Haryana and others Vs. Ch. Bhajan Lal and others 1991 ( 28) ACC 111, the Supreme Court after analysing the law and the various case-laws has laid down certain guidelines for exercise of jurisdiction u/s 482 Cr. P. C. by the High Courts, which are as under "In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: ( a) 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; ( b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 ( 1) of the Code except under an order of a Magistrate within the purview of Section 155( 2) of the Code; ( c) where the uncontroverted allegations made in the FIR or 'complaint 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; ( d) where the allegations in the FIR do not constitute a cognizable 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; ( e) 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; ( f) where there is an express legal bar engrafted in any of the provisions of the Code 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 efficacious redress for the grievance of the aggrieved party; ( g) 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." 10. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court under Section 482 of the Code of Criminal Procedure ( hereinafter referred to as "the Cr.P.C.") has also been recently dealt with by the Hon'ble Supreme Court in the case of Rajiv Thapar & Ors. vs. Madan Lal Kapoor ( Criminal Appeal No. 174 of 2013, arising out of SLP ( Crl.) no.4883 of 2008, decided on 23.1.2013) wherein the Hon'ble Court inter alia has held as under: 22. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section-482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:- ( i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? ( ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. ( iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? ( iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial ( as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." 11. In view of what has been said and done above, lead us to this irresistible conclusion that the complaint filed by the respondent no. 2 is the counter blast of the action taken by the applicant in discharge of his official duties and thus no cognizance against him can be taken by the learned Magistrate without previous sanction u/s 197 Cr. P. C., therefore, the continuation of the criminal proceedings against him on the complaint of respondent is abuse of process of the Court. Thus, the instant application is allowed and the proceedings of Complaint case no. 449/07 Khyali Ram Vs. Shivraj Singh and another u/s 452, 392, 504 and 506 IPC pending in the Court of Judicial Magistrate-II, Bareilly are hereby quashed. Let copy of the order be sent to the court concerned immediately.