Surendra Singh Bagga @ Raja Sardar v. State of U. P. Thru. Secy. Home
2017-02-08
ANIL KUMAR SRIVASTAVA-II
body2017
DigiLaw.ai
JUDGMENT Anil Kumar Srivastava-II,J. 1. Heard Ms. Navita Sharma, learned counsel for the petitioner, learned Additional Government Advocate and perused the record. 2. This petition under Section 482 Cr.P.C. has been filed with a prayer to set aside the impugned order dated 16.03.2010 passed by Chief Judicial Magistrate, Court No.9, Raebareli in Case No.1507/09 as well as to quash charge-sheet no.395/09 dated 06.12.2009 bearing case crime no.2987/2009 under Sections 7, 10, 12, 22, 23(1) U.P. Regulation of Money Lending Act, 1976 (hereinafter referred to as the Act), P.S.Kotwali, District Raebareli. 3. It appears that a first information report under Sections 7, 10, 12, 22, 23(1) of the Act was registered, which was investigated upon and the charge sheet was submitted against the petitioner. Cognizance was taken by the learned Magistrate. 4. Learned counsel for the petitioner submits that in view of the provisions of Sections 22(3) of the Act, taking cognizance itself is bad in law as there is no previous sanction of the Registrar. It is further submitted that Section 23(1) of the Act is concerned there is no allegation of molestation which could attract Section 23(1) of the Act. 5. Learned Additional Government Advocate supported the impugned order and submits that the points raised by learned counsel for the petitioner could have been seen by learned trial court during trial. 6. Section 22(3) of the Act reads as under: "22. Penalties. - (1) Whoever, willfully contravenes any of the provisions of Section 10 or Section 11, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five thousand rupees or with both. (2) ............ (3) No Court shall take cognizance of an offence punishable under sub-section (1) except with the previous sanction of the Registrar." 7. So far as Sections 7 and 12 of the Act are concerned they are not penal provisions. No charge sheet could be submitted under these Sections. Hence, charge sheet under Sections 7 and 12 of the Act itself becomes bad in law. 8.
So far as Sections 7 and 12 of the Act are concerned they are not penal provisions. No charge sheet could be submitted under these Sections. Hence, charge sheet under Sections 7 and 12 of the Act itself becomes bad in law. 8. Further, so far Sections 10 and 22 of the Act are concerned under Section 22 of the Act wherein, in view of the provisions contained in Section 22(3) of the Act, previous sanction of the Registrar is mandatory before taking cognizance of an offence but no sanction of the Registrar has been obtained by the prosecution prior to filing of the charge sheet and taking of cognizance. 9. Section 23(1) of the Act also did not attract in this case, as the only allegation in the first information report is that the complainant is a poor lady who could not pay the amount which could not be said to be covered under Section 23(1) of the Act. 10. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preempt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly.
If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. I need not go into various aspects in detail but it would be suffice to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296 , Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474 , Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781 , M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682 , State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588, Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74 and Manoj Kumar Sharma and Ors. vs. State of Chhattisgarh and Another (2016) 9 SCC 1 . 11. In Manoj Kumar Sharma and Others (Supra) Hon'ble the Apex Court has relied upon the law laid down in State of Haryana v. Bhajan Lal (Supra) wherein it was held that though it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the court may be justified in exercising such jurisdiction.
These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and 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. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice." 12. In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, Hon'ble the Apex Court has further laid down, the guidelines for exercise of the power by the High Court under Section 482 Cr.P.C. It has been held that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest.
Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. 13. Since first information report could not be lodged under Sections 7 and 12 of the Act, no charge sheet could be submitted and cognizance could not be taken without prior sanction of the Registrar. Hence, charge-sheet so far as these Sections are concerned is bad in law for want of previous sanction of the Registrar as envisaged in Section 22(3) of the Act. There is no allegation to attract Section 23(1) of the Act. Accordingly, the charge sheet itself is a misuse of the process of law, which is liable to be quashed. 14. In view of the discussions made above, this petition deserves to be allowed and is hereby allowed. The charge-sheet no.395/09 dated 06.12.2009 bearing case crime no.2987/2009 under Sections 7, 10, 12, 22, 23(1) U.P. Regulation of Money Lending Act, 1976 is hereby quashed and the impugned order dated 16.03.2010 passed by Chief Judicial Magistrate, Court No.9, Raebareli in Case No.1507/09 is hereby set aside.