Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1928 (ALL)

SANJAY KUMAR SINGH v. STATE

2017-08-21

ATTAU RAHMAN MASOODI

body2017
JUDGMENT : ATTAU RAHMAN MASOODI, J. 1. Heard Sri Satyendra Kumar Singh, learned counsel for the petitioner and Sri Ashok Kumar Srivastava, who has put in appearance on behalf of opposite party no. 2. Sri Anurag Verma, learned AGA has appeared on behalf of the State. 2. This petition filed under Section 482 Cr.P.C., 1973 raises an interesting and pertinent question of law that has a bearing upon the settlements arrived at through Lok Adalats held under Section 19 of the Legal Services Authority Act, 1987 (hereinafter referred to as the Act of 1987). Cognizance of cases by Lok Adalats is provided for under Section 20 of the Legal Service Authority Act, 1987 which for ready reference is reproduced hereunder: "20. Cognizance of cases by Lok Adalats. - (1) Where in any case referred to in clause (i) of sub-section (5) of section 19- (i) (a) the parties thereof agree; or (b) one of the parties thereof makes an application to the court, for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement; or (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties. (2) Notwithstanding anything contained in any other law for the time being in force, the Authority or Committee organising the Lok Adalat under sub-section (1) of section 19 may, on receipt of an application from any one of the parties to any matter referred to in clause (ii) of sub-section (5) of section 19 that such matter needs to be determined by a Lok Adalat, refer such matter to the Lok Adalat, for determination: Provided that no matter shall be referred to the Lok Adalat except after giving a reasonable opportunity of being heard to the other party. (3) Where any case is referred to a Lok Adalat under subsection (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (3) Where any case is referred to a Lok Adalat under subsection (1) or where a reference has been made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. (4) Every Lok Adalat shall, while determining any reference before it under this Act, act with utmost expedition to arrive at a compromise or settlement between the parties and shall be guided by the principles of justice, equity, fair play and other legal principles. (5) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in sub-section (2), that Lok Adalat shall advice the parties to seek remedy in a court. (7) Where the record of the case is returned under subsection (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1). 3. A perusal of Section 20 sub-section (1) makes it clear that the cases referred to in clause (i) of sub-section (5) of Section 19 are cognizable by Lok Adalats. Clause (i) of sub-section (5) of Section 19 of the Act of 1987 is also extracted hereunder: "19. Organisation of Lok Adalats. - (1) ........ (2) ........ (3) ........ (4) ........ (5) A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of- (i) any case pending before; or (ii) ........ any court for which the Lok Adalat is organised Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law." 4. The above provision inclusively envisages settlement through Lok Adalats of the cases pending before any court for which Lok Adalat is organised. 5. In the present case an F.I.R. was lodged by opposite party no. 2 registered as case crime no. The above provision inclusively envisages settlement through Lok Adalats of the cases pending before any court for which Lok Adalat is organised. 5. In the present case an F.I.R. was lodged by opposite party no. 2 registered as case crime no. 436/2013 under Section 406, 420, 467, 471 IPC, P.S. Kotwali Nagar, District Pratapgarh which was duly investigated by the police authorities. Final report no. 173/2013 dated 3.9.2013 was filed before the court of Chief Judicial Magistrate, Pratapgarh whereafter it appears that notice of final report was sent to the complainant but he failed to appear. Notice is also stated to have been issued to the complainant for appearance before the Lok Adalat but it is gathered from the revisional order impugned herein, that the complainant refused to receive the notice. The date before the Lok Adalat for settlement/disposal of the case was fixed on 23.11.2013 and on the said date the Chief Judicial Magistrate referring to the proceedings of Lok Adalat accepted the final report and accordingly culminated the proceedings by order dated 23.11.2013 contained in Annexure-4 to this petition. The file was consigned to record. 6. It appears that opposite party no. 2 after coming to know about the order dated 23.11.2013 passed by Chief Judicial Magistrate, filed a recall application but the same was rejected on 30.4.2014 by the court concerned for want of jurisdiction. It was rather observed that opposite party no. 2 may avail the remedy of revision/appeal. 7. Taking shelter of the order dated 30.4.2014 passed on the application for recall of the order dated 23.11.2013, the opposite party no. 2 filed criminal revision no. 85/2014 before the revisional court below which was decided on 3.6.2014. Significantly, the revision filed before the court below assailed the order dated 30.4.2014 alone but had left the order passed by the Chief Judicial Magistrate on 23.11.2013 unquestioned. Moreover, the accused persons were not impleaded as a party in the revision. 8. 2 filed criminal revision no. 85/2014 before the revisional court below which was decided on 3.6.2014. Significantly, the revision filed before the court below assailed the order dated 30.4.2014 alone but had left the order passed by the Chief Judicial Magistrate on 23.11.2013 unquestioned. Moreover, the accused persons were not impleaded as a party in the revision. 8. Notwithstanding the fact that the order passed by Chief Judicial Magistrate was not questioned in the revision, yet while deciding the revision by the court below, the order dated 23.11.2013 passed by the Chief Judicial Magistrate was set aside and it is in this background that the order passed by the revisional court below has come to be challenged before this Court by an accused person in the present petition under Section 482 Cr.P.C., 1973 who was not impleaded a party in the revision. 9. The precise argument advanced by learned counsel for the petitioner rests on the premise of Section 21 sub-section (2) which reads as under: "21. Award of Lok Adalat. - (1) ............ (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award." 10. It is argued that once the forum of appeal is not available to a party against a compromise or settlement arrived in Lok Adalat proceedings disposing of a case, there is no reason as to why a revision under Section 397/401 Cr.P.C. by the court below to which the petitioner was not impleaded as a party could be entertained and decided ex-parte. 11. 11. In the background stated above, the following questions arise for consideration: (i) Whether a case referred to the Lok Adalat on account of refusal to accept the notice would be a valid reference within the meanings of Section 20 of the Legal Services Authority Act, 1987; Further, as to whether an order passed by the Chief Judicial Magistrate while holding the proceedings of Lok Adalat without any participation of one of the parties is a valid order/settlement; (ii) Whether a revision of the order passed by Lok Adalat is maintainable particularly when the Special Act where-under proceedings are disposed of, bars an appeal against the same; and (iii) Whether in absence of any challenge to the order dated 23.11.2013 and that too without impleading the petitioner as a party in criminal revision no. 84/2014, the order passed by the revisional court is valid in the eye of law. 12. The first issue as mentioned above would certainly require this Court to have a re-look at the statutory source of power where-under the reference is stipulated to be made of a pending case to the Lok Adalat. 13. Admittedly, final report dated 3.9.2013 was submitted before the court of Chief Judicial Magistrate vide no. 173/13 and as such the case falls in the category of a pending case to which the complainant is a necessary party and the other party is the State. In the present case, the two parties mentioned above had not agreed at all to refer the final report for any settlement before the Rashtriya Mega Lok Adalat, thus, the alternative course open to the court was by virtue of Section 20(1)(i)(b) which clearly postulates an application to be made before the court by one of the parties. On a careful perusal of the record, no such application is mentioned to have been made by any of the parties and in this manner, the compliance of Section 20(1)(i) (a&b) is completely absent and no case is made out under the above provisions. 14. Section 20(1)(ii) postulates as under: "20. Cognizance of cases by Lok Adalats. - (1) Where in any case referred to in clause (i) of sub-section (5) of section 19-" (i) ................ 14. Section 20(1)(ii) postulates as under: "20. Cognizance of cases by Lok Adalats. - (1) Where in any case referred to in clause (i) of sub-section (5) of section 19-" (i) ................ (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat: Provided that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties." 15. The above provision confers the power on the competent court to refer a pending case to the Lok Adalat subject to the satisfaction of it being an appropriate case to be taken cognizance of by the Lok Adalat, but such a reference is to be made only after giving a reasonable opportunity of being heard to the parties. It is very often noticed that the criminal courts in this state, where the final reports are filed in State cases and the complainants do not turn up in response to the notice of final report, such matters are identified to be dealt with in Lok Adalat. In the present case, the notice of final report was sent to the complainant through police officer but in the endorsement on the envelop containing the notice, it was mentioned that the complainant had refused to receive the said notice. Thus, looking to the refusal to receive notice, the reference seems to have been made but the question that crops up is as to whether such a reference satisfies the criteria of parties being heard. The observance of this rule is equally relevant if a reference is made under Section 20(2) of the Act. 16. Reference of cases to Mega Lok Adalats is a regular feature and publicity is also made that the identified cases may be uploaded on the National judicial data grid but procedure in relation to reference is not a mere formality and the publicity alone would not justify the reference. The principle of right to be heard, even if it is understood to be a mere notice, cannot be said to be complied unless the notice is served, which is a condition precedent for a person being heard. 17. The principle of right to be heard, even if it is understood to be a mere notice, cannot be said to be complied unless the notice is served, which is a condition precedent for a person being heard. 17. In the instant case, failure to accept the notice seems to be the basis of satisfaction for referring the case to Lok Adalat but the complainant has raised a serious dispute in relation to the very service of notice. The revisional court in the impugned order has recorded that refusal to accept notice is not witnessed by any independent proof and thus, the very service of notice of the final report in the case at hand is termed doubtful. 18. The procedure of hearing for the purposes of making reference under Section 20 (1) or Section 20 (2) clearly stipulates a reasonable opportunity of hearing. As a matter of common practice, the right to reasonable opportunity of being heard commences with the issuance of notice and in the instant case where the matters are to be dealt with under Code of Criminal Procedure, issuance of summons to the witnesses is contemplated under section 62 of Code of Criminal Procedure, 1973. The status of a complainant is akin to that of a witness, therefore, for the purposes of service of notice of a final report filed by the police authorities in relation to an FIR, the said notice is to be issued in the form of summon taking aid of section 62 Code of Criminal Procedure, 1973 which reads as under: "62. Summons how served. (1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant. (2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate." 19. Framing of any rule under Section 62 has not been brought to the notice of this Court and thus, the summons are normally served through police authorities. (3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate." 19. Framing of any rule under Section 62 has not been brought to the notice of this Court and thus, the summons are normally served through police authorities. The procedure of service of summons contemplated under Section 62 does not provide for a presumption to be drawn in a situation where complainant refuses to accept notice and the endorsement of refusal is made by the police officer who tenders the summon personally. To overcome this difficulty Cr.P.C. concurrently provides for service through registered post and for this purpose Section 69 may be referred to and the same is extracted below: "69. Service of summons on witness by post. (1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain. (2) When an acknowledgement purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served." 20. The purpose of section 69 of Cr.P.C., 1973 for issuance of summons through the additional mode i.e. registered post is none else but to draw a presumption against addressee once an endorsement of refusal is received back. This presumption, however, is not envisaged to be drawn when the summons are issued through police officer under Section 62 and the notice comes back with the remark of refusal. 21. This Court would notice that the alternative course of service was not adopted after the final report was filed before the court of magistrate on 3.9.2013 and thereafter when the notice was refused to be accepted by the complainant, as such, the presumption of service of notice for the purposes of referring the case to Lok Adalat or otherwise for compliance of right to be heard could not be drawn. It may be noted that the reasonable opportunity of being heard is contemplated in the statute, thus there is no reason as to rule of opportunity may not be construed to be a mandatory requirement of law. The purpose of Legal Services Authority Act is to arrive at a settlement or compromise between the parties. This object of the Act cannot be achieved unless the parties are put to a notice both at the stage of reference and settlement/compromise. The matter may also be referred to Lok Adalat if the court is satisfied that a case is an appropriate case to be taken cognizance of by the Lok Adalat but notice to the parties before a reference is made mandatory. Even thereafter when the matter is fixed for disposal before the Lok Adalat, the parties must have notice. The requirement is no less even a matter is referred to Lok Adalat under Section 20(2) of the Act. 22. The only category of pending cases which cannot be dealt with by Lok Adalat are the matters relating to an offence not compoundable under any law. In the instant case, final report was submitted in an F.I.R. registered under Section 406, 420, 467, 471 IPC which are not compoundable offences under law. Therefore, even if the parties would agree or an opportunity of being heard is complied with, the nature of case essentially falls beyond the jurisdiction of Lok Adalat. 23. Once the complainant had disputed the very receipt of notice and had not participated in the Lok Adalat before the court of Chief judicial magistrate, in my considered opinion, the matter firstly was not open to be referred to the Lok Adalat for want of jurisdiction. Secondly, the very manner of making reference contrary to the procedure envisaged under Section 20 (1) (i) & (ii) of the Legal Services Authority Act, the reference as well as the order passed by the Magistrate are invalid. This position finds support of the apex court judgment reported in (2007) 10 SCC 748 (Union of India v. Ananto (dead) and another). 24. It is worthy to note that parties before the Lok Adalat settle the dispute through compromise or settlement. This position finds support of the apex court judgment reported in (2007) 10 SCC 748 (Union of India v. Ananto (dead) and another). 24. It is worthy to note that parties before the Lok Adalat settle the dispute through compromise or settlement. The settlement or compromise has to be signed by both the parties and anything agreed between the parties is an enforceable award like a decree which is binding upon the parties and becomes unquestionable by any party. 25. Thus, ingredients of a valid reference and procedure not having been satisfied, would not only render the reference of the matter to the Lok Adalat as unjustified but the proceedings before the Lok Adalat also suffer from lack of jurisdiction in the present case. 26. In view of above, question no. 1 and 3 stand answered against the petitioner and thus prayer for quashing the proceedings of complaint case no. 1138/15 is not made out and the petition deserves to be dismissed. 27. Insofar as maintainability of the revision against the order of settlement/compromise entered into before the Lok Adalat is concerned, it is noteworthy that if the appeal is specifically barred under Section 21(2) of the Legal Services Authority Act, it would not leave any scope for revisional jurisdiction to remain open. A compromise or settlement is not open to be questioned under the Act and the remedy under procedural laws is of no avail against a valid compromise/settlement arrived at before the Lok Adalat. Thus, question no. 2 on principle is answered in affirmative and to this extent the submissions made by the counsel for the petitioner are upheld. However, this Court having found that the order passed by Lok Adalat is without jurisdiction, thus nothing turns on questions no. 2 being answered in affirmative. The proper course in such a situation is contemplated under Section 20(5) which provides that the record of the case shall be returned by Lok Adalat to the Court. The magistrate ought to have returned the case to the court and not disposed of the same by exercising his jurisdiction while discharging his function in the Lok Adalat. 28. Since questions no. 1 and 3 have been answered against the petitioner, this petition under Section 482 Cr.P.C., 1973 virtually fails and the same is hereby dismissed. The magistrate ought to have returned the case to the court and not disposed of the same by exercising his jurisdiction while discharging his function in the Lok Adalat. 28. Since questions no. 1 and 3 have been answered against the petitioner, this petition under Section 482 Cr.P.C., 1973 virtually fails and the same is hereby dismissed. It is, however, open to the petitioner to appear before the magistrate and apply for bail within a period of four weeks and in case any such application is filed, the same shall be considered expeditiously in accordance with law. The benefit of interim order dated 26.7.2017 shall remain available for a period of four weeks subject to the appearance of the petitioner within the aforesaid period. 29. Let a copy of this judgment be sent to the State Legal Services Authority for necessary guidelines.