Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 522 (ALL)

RAM SUNDER SINGH v. STATE OF U. P.

2018-02-28

CHANDRA DHARI SINGH

body2018
JUDGMENT : 01. Heard Sri Mukul Rakesh, learned counsel for the applicant, learned counsel for the respondent no.2 and learned A.G.A. for the State and perused the record. 02. The instant application under Section 482 Cr.P.C. has been filed for quashing the charge-sheet dated 24.5.2009 and consequential summoning order dated 23.12.2009 passed by the Chief Judicial Magistrate, Lucknow in Criminal Case no.13167 of 2009, State vs. Gurdeep Singh and others arising out of case crime no.33 of 2008, under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Hazratganj, District Lucknow. 03. Briefly stated the facts of the case are that the applicant was working as Senior Assistant in the office of Directorate of Training and Employment. Out of number of instances and cases shown in the F.I.R., only three cases were having concerned with the applicant. These cases are of (1) R.K.Gupta (2) Sunil Kumar Gupta and (3) Mahesh Kumar Verma as they were related to office of the applicant. So far as other cases are concerned, the applicant is directly or indirectly or remotely is not concerned with them. During investigation, the statements were recorded under Section 161 Cr.P.C. The F.I.R. was lodged by one Ajay Kumar Puhiya under Sections 419, 420, 467, 468, 471 I.P.C. and after completion of the investigation, the Investigating Officer submitted a charge-sheet against the applicant. Summoning order was issued by the C.J.M., Lucknow vide order 23.12.2009. 04. Learned counsel for the applicant submitted that a bare perusal of the statements recorded under Section 161 Cr.P.C. reveals that there is nothing to infer or conclude that any overt act was committed by the applicant in the alleged transfer, posting or related episode. The office/section of the applicant was consists of six person, there is no specification on the part of the applicant as to in what manner and in what capacity the alleged act of commission or omission was performed. He further submitted that so far as the applicant is concerned, there is not a whisper that any money either demanded or received as alleged against the applicant. It was not with the domain of the applicant to transfer any person or any employee being a Senior Assistant. The job of applicant was limited in clerical nature. He further submitted that so far as the applicant is concerned, there is not a whisper that any money either demanded or received as alleged against the applicant. It was not with the domain of the applicant to transfer any person or any employee being a Senior Assistant. The job of applicant was limited in clerical nature. The F.I.R. and the statements recorded under Section 161 Cr.P.C. also fails to indicate anything exceeding the nature of clerical job performed by the applicant, so, the charge-sheet submitted against the applicant for the offences as alleged do not fulfill the required ingredients. Learned counsel for the applicant contended that a perusal of the order dated 23.12.2009, summoning the applicant as accused without any material on record. He further contended that the Magistrate concerned on the face of it, acted mechanically and without application of judicious mind. The order summoning is a cyclostyle proforma with fill up blanks. It may amount abuse of process of court as law settled by the Hon'ble Apex Court. The impugned order does not indicate application of judicial mind. In such circumstances, the impugned order is liable to be quashed. Learned counsel for the applicant has relied upon several judgments of the Hon'ble Supreme Court as well as of this Court. 05. On the other hand learned counsel for the respondents vehemently opposed the submission of the learned counsel for the applicant and submitted that after completion of the entire investigation the I.O. has submitted the charge-sheet against the applicant and summoning order has been issued by the concerned Magistrate after considering the material on record. Therefore, the present application is liable to be dismissed. In the summoning order, however, it has been stated that offence has been committed, therefore, cognizance of the offence has been taken. 06. I have considered the rival submissions made by learned counsel for the parties and perused the material on record. Before I proceed to examine the impugned orders of court below and the facts of the case, it may be desirable refer to settle legal proposition which has to be appeared in the instant case. 07. The expression 'cognizance' has not been defined in the Code. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. 07. The expression 'cognizance' has not been defined in the Code. The word 'cognizance' indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It indicates the point when a Court or a Magistrate takes judicial notice of an offene with a view to initiate proceedings in respect of such offence said to have been committed by someone. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. 08. A 'summons' is a process issued by a court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against the person and the date and time on which the person must appear in the court. 09. The Hon'ble Supreme Court in the case of Kanti Bhadra Shah and another vs. State of West Bengal (2000) 1 SCC 722 has held in para-12 as under:- "If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order had been passed for culminating the proceedings before them. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order had been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stage in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentions raised, except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985." 10. In the case of Nupur Talwar vs. C.B.I. Reported in 2013 AIR SCW 369, the Hon'ble Supreme Court has held as under :- "9. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court. 10. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. 11. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. 11. Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith." It is therefore apparent, that an order issuing process, cannot be vitiated merely because of absence of reasons. 10. The matter can be examined from another perspective. The Code of Criminal Procedure expressly delineates irregularities in procedure which would vitiate proceedings. Section 461 thereof, lists irregularities which would lead to annulment of proceedings. Section 461 aforesaid is being extracted hereunder:- "461. Irregularities which vitiate proceedings- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:- (a) attaches and sells property under section 83; (b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good behaviour; (f) cancels a bond to keep the peace; (g) makes an order for maintenance; (h) makes an order under section 133 as to a local nuisance; (i) prohibits, under section 143, the repetition or continuance of a public nuisance; (j) makes an order under Part C or Part D of Chapter X; (k) takes cognizance of an offence under clause (c) of sub- section (1) of section 190; (l) tries an offender; (m) tries an offender summarily; (n) passes a sentence, under section 325, on proceedings recorded by another Magistrate; (o) decides an appeal; (p) calls, under section 397, for proceedings; or (q) revises an order passed under section 446, his proceedings shall be void." In the list of irregularities indicated in Section 461 of the Code of Criminal Procedure, orders passed under Section 204 thereof, do not find a mention. In a situation, as the one in hand, Section 465(1) of the Code of Criminal Procedure, protects orders from errors omissions or irregularities, unless "a failure of justice" has been occasioned thereby. Most certainly, an order delineating reasons cannot be faulted on the ground that it has occasioned failure of justice. Therefore, even without examining the matter any further, it would have been sufficient to conclude the issue. The present situation, however, requires a little further elaboration. Keeping in mind the peculiarity of the present matter and the special circumstances arising in this case, some observations need to be recorded. Accordingly, to determine whether reasons ought to have been recorded by the Magistrate, in this case, is being dealt with in the succeeding paragraphs. 11. In the matter of Aquil Ahmad and others vs. State of U.P. Principal Secretary Home Lucknow and another reported in 2015 Law suit (All.) 2344 this Court after having found that the order of cognizance was taken on the chargesheet which was hand written and on a separate sheet which was computer typed sheet although some blanks had been filled, observed that the main order is on the chargesheet itself and hand written, therefore the main order has to be seen. The Court further observed that in these days of computerization, the computer typed orders cannot be said to be bad nor the inference can be drawn that the mind has not been applied. 12. In view of the above, the order passed on the face of chargehseet, at page no.76, is a hand written order duly signed by the Magistrate and therefore, looking to the aforesaid law that no detailed order is required at the time of cognizance and the observations made by the Hon'ble Supreme Court in the matter of Kanti Bhadra Shah (supra) followed in Nupur Talwar's case (supra) that "why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all road blocks causing avoidable delays." 13. Section 482 Cr.P.C. saving of Inherent Power of High Court. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all road blocks causing avoidable delays." 13. Section 482 Cr.P.C. saving of Inherent Power of High Court. "Nothing in this Code shall be deemed to limit or effect the inherent power of the High Court to make such order as may be necessary to give effect to any order under this Court, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 14. Section 482 of the Cr.P.C. starts with the words "nothing in this Code". Thus, the inherent jurisdiction of the High Court under Section 482 of the Cr.P.C. can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. The inherent power is to be used only in the cases where there is an abuse of the process of the Court or where inference is absolutely necessary for securing the ends of justice. The most common cases where inherent jurisdiction is generally exercised is fair criminal proceedings are required to be quashed because they are initiated illegally, vexatious or without jurisdiction. 15. In the State of Bihar vs. JAC Saldanha, 1980 1 SCC 544, the Hon'ble Supreme Court held as under: "The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. The High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete, we say no more." 16. In R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866 , the Hon'ble Supreme Court summarized some of the categories of cases where inherent power should be exercised to quash the criminal proceeding against the accused stating: "(i) Where it manifestly appears that there is a legal bar against the institution or continuance that is want of sanction. (ii) Where the allegations in the first information report or complaint taken at its effects value and accepted in their entirety do not constitute the offence alleged. (ii) Where the allegations in the first information report or complaint taken at its effects value and accepted in their entirety do not constitute the offence alleged. (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly failed to prove the charge. Gajendragadkar, J., who spoke for the Court in Kapur's case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 Cr.P.C. ought not to be encased within the strait-jacket of a rigid formula." 17. The category of "doctrine of abuse" is more exceptional that those describe above. It arises from the duty of the High Court (in the case of Bennett vs. Horseferry Magistrate Court) to over see executive action 80 as to prevent the sale taking advantage of acts that threaten either basic human rights or the rule of law. In Bennett vs. Horeferry Road Magistrate's Court, there was a challenge to proceedings where the defendants had been brought to U.K. from South Africa. It was held that it was an abuse of process for a person to be forcibly brought the jurisdiction of the Court is disregard of extradition proceeding. 18. The principles which led to a finding of an "abuse of process" in the U.K. were stated in Johnson V. Gore Wood & Co. by Lord Bingham. "............that is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not .......properly applied, and whatever the legitimacy of its descent the rule has in my view a valuable part to play in protecting the interest of justice." 19. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case. 20. The submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. 21. In view of the above discussions, I do not find any merit in the case, therefore, the prayers for quashing chargesheet dated 24.05.2009 and summoning order dated 23.12.2009 passed by the Chief Judicial Magistrate, Lucknow in Criminal Case no.13167 of 2009, State vs. Gurdeep Singh and others arising out of case crime no.33 of 2008, under Sections 419, 420, 467, 468, 471 I.P.C. are hereby refused. 22. Accordingly, the present application is dismissed.