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2019 DIGILAW 2348 (ALL)

Malti Singh v. State Of U. P.

2019-10-17

VIKAS KUNVAR SRIVASTAV

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JUDGMENT : Vikas Kunvar Srivastav, J. The application in hand is moved under section 482 of Criminal procedure code,1973 by learned counsel on behalf of applicant-accused involved in case crime no.1147 registered under Sections 147, 149, 341, 332, 352, 336, 506 of IPC and Section 7 of Criminal Law Amendment Act in Police Station Gazipur, District Lucknow. The applicant seeks following reliefs- "To quash/set aside the chargesheet submitted by police after investigation and the order dated 22.07.2011 summoning the accused in the case." 2. Heard the learned counsel for the applicant and the Learned AGA appearing on behalf of the state opposite parties. Perused the materials available on record. 3. Learned counsel has moved this application with grounds for the relief of quashing the chargesheet no.125 of 2011, submitted by police after investigation of case crime no.1147 of 2008 under Sections 147, 149, 341, 332, 352, 336, 506 of IPC and Section 7 of Criminal Law Amendment Act. The grounds as pleased are:- "First information report was lodged by the Station Officer of Police Station Gazipur, District Lucknow dated 01.10.2008 reporting the incident that an Ex-MLA, 'Rajendra Singh Yadav' alongwith corporator, 'Smt. Malti Singh' and companions, more than two hundred in number, blocked the national highway near Surendra Nagar turning and thus obstructed the traffic. They were raising slogans using inflammatory and filthy words against government and the administration, they were delivering inflammatory speeches. When they were requested to remove the blockade from the road for the sake of public convenience, irritated thereby they jointly assaulted and made the police party, threatened and began to pelt the bricks and stones." 4. Learned counsel in the above context submits that the MLA and the corporator are members of well reputed family and elected representative of public. They individually have not used any filthy or derogatory word. Since at the time of incident the applicant was in power being leader of ruling party, in her connivance the police falsely implicated her. 5. Learned counsel further submits that none of the offence under Sections 147, 149, 341, 334, 352, 336, 506 of IPC and Section 7 of Criminal Law Amendment Act is made out from the allegations in F.I.R. then also the Investigating Officer, under the pressure of leaders of the ruling party, submitted the chargesheet without any materials to support the constitution of offence thereunder. 6. 6. Before entering into merit of the present application under Section 482 Cr.P.C., it would be relevant to keep into mind the scope and ambit of the said section and circumstances under which the extra ordinary power of the court inherent therein can be exercised. It is explained in a plethora of judgments of the Honorable the Apex Court. One of those judgments is, Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 , para 23 is quoted here under: "This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice." 7. In the light of materials placed on record as well as ingredients of the concerned Sections of IPC and Criminal Law Amendment Act wherein the applicant is charged, Sections 147 and 149 from the offence falling under Chapter VIII of the IPC relate to, "offence against the tranquility", Section 146 of the IPC defines the 'rioting', ingredients to constitute offence are given under Section 146 IPC. It is constituted, when force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the criminal object of such assembly, every member of such assembly is guilty of the offence of rioting. 8. Section 147 of the IPC provides punishment of imprisonment of description for a term which may extend to two years or with fine or with both, the offence is cognizable and bailable. 9. Section 149 of the IPC is relating to common object wherein every member of unlawful assembly is guilty of offence committed in prosecution of common object. 10. Section 147 of the IPC provides punishment of imprisonment of description for a term which may extend to two years or with fine or with both, the offence is cognizable and bailable. 9. Section 149 of the IPC is relating to common object wherein every member of unlawful assembly is guilty of offence committed in prosecution of common object. 10. "Unlawful Assembly" is defined in Chapter VIII of IPC in Section 141 as an assembly of five or more persons and is designated "Unlawful Assembly." If the common object of the persons comprising the assembly is: "(First) -- To overawe by criminal force, or show of criminal force, 1[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second) -- To resist the execution of any law, or of any legal process; or (Third) -- To commit any mischief or criminal trespass, or other offence; or (Fourth) -- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth) -- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.--An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." 11. To determine the existence of common object, the Court is required to see the circumstances in which the incident had taken place and conduct of the members of unlawful assembly including the weapon of offence though carried or used on the spot. This can be find out from circumstances and facts proved in trial on the basis of legally adduced evidence. 12. Further, in the case of Ramchandran Vs. State of Kerala, (2011) AIR SC 3581, it is alleged that common object may be formed in spur of the moment. This can be find out from circumstances and facts proved in trial on the basis of legally adduced evidence. 12. Further, in the case of Ramchandran Vs. State of Kerala, (2011) AIR SC 3581, it is alleged that common object may be formed in spur of the moment. "Prior concern in the sense of meeting of unlawful assembly of members is not necessary" whether or not the common object of the unlawful assembly was possessed by him or her at the time of incident is immaterial. The question whether the accused-applicant was present in the assembly or not is of evidence which can be seen only in the trial. 13. Further, Section 341 of the IPC falls in Chapter XVI, "offence effecting the human body". One of such offence is 'wrongful restraint', defined under Section 339 of IPC, when a person voluntarily obstructs another person so as to prevent that person from proceeding in any direction in which that person has have a right to proceed, is said to wrongfully restrain that person. Section 341 is punishment for wrongful restraint. 14. In the present matter, it is alleged in the FIR that national highway was blocked by the accused-applicant alongwith the accused MLA and their companions more than two hundred in person. The public at large were stood obstructed on the highway, restrained to move on the road in the direction where they were proceeding and had right to proceed. As such these allegations even if their face value taken in their entirety, they constitute fulfilling their ingredients. 15. Section 332 and Section 336 of IPC are also the offence "affecting the human body" and relate with the offence of hurt. Both the above offences are related to voluntarily causing hurt to detect public servant from his duty and at endangering life or personal safety of others respectively. 16. In the present case, the allegation is to the effect that the police officials when forbidden and requested the unlawful assembly to remove the blockade and let the public free to move on the road, they became irritated and began to attack the police party throwing bricks and stones upon them. They were making slogans in absurd and derogatory words thus offence of Section 506 of IPC is slapped thereon. 17. So far as Section 352 of IPC is concerned, it falls within Chapter XVI, "offence affecting the life". They were making slogans in absurd and derogatory words thus offence of Section 506 of IPC is slapped thereon. 17. So far as Section 352 of IPC is concerned, it falls within Chapter XVI, "offence affecting the life". Criminal force is defined in Section 350 of the IPC. It is constituted when a person intentionally uses force without that person's consent in order to commit any offence or intending by the use of such force to cause, or nothing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to others. Further, assault is defined under Section 351 of IPC and this offence is constituted when a person makes any gesture, or any preparation intending or nothing it to be likely the such gesture or preparation will cause any person to apprehend that he who makes gesture or makes the preparation is about to use criminal force to that person. Section 352 of IPC is the punishment for assault or criminal force otherwise on grave provocation. 18. In the present case when accused are alleged, blocking the national highway obstructing the movement of passengers on the road by using criminal force making inflammatory, derogatory and abusing speeches, causing apprehension in the mind of people, are undoubtedly fulfilling the ingredients of such offence with which the accused persons are slapped. Further, on being forbidden by the police personnel having been requested to remove the blockade, the unlawful assembly led by the applicant attacked the police party, began stone pelting and throwing bricks on the police party are reported in unambiguous explicit words in the first information report. 19. Hon'ble the Supreme Court in Mahesh Chaudhary Vs. State of Rajasthan and Another, (2009) 4 SCC 439 in para 11, 12, 14 and 17 has held as under: "11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the Complaint Petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence. 12. The court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the Complaint Petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence. 12. It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused. 14. While saying so, we are not unmindful of the limitations of the court's power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole. In Kamaladevi Agarwal vs. State of W.B. & ors., (2002) 1 SCC 555 , this Court opined: "7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction." It was furthermore observed that the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there would always be some element of civil nature. 17. The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. 17. The charge-sheet, in our opinion, prima facie discloses commission of offences. A fair investigation was carried out by the Investigating Officer. The charge-sheet is a detailed one. If an order of cognizance has been passed relying on or on the basis thereof by the learned Magistrate, in our opinion, no exception thereto can be taken. We, therefore, do not find any legal infirmity in the impugned orders. We, however, must place on record that before us Mr. Dhankar stated that the appellant is ready and willing to get the disputes and differences between the parties settled. 20. As such power under Section 482 Cr.P.C. is to be exercised to prevent abuse of process of Court or to secure ends of justice as repeatedly have been held and guided by the Hon'ble the Apex Court in present case where the relief of chargesheet on the basis of facts and materials placed before the Court and discussed hereinabove, relief of quashing the chargesheet is sought. 21. Here the allegations in the FIR under Sections 147, 149, 341, 332, 352, 336, 506 of IPC and Section 7 of Criminal Law Amendment Act in Police Station Gazipur, District Lucknow are disclosing the commission of offence as the allegations made therein on being taken on their face value as correct, in their entity the allegations do not seem impossible or improbable. Further, Hon'ble the Apex Court held that while considering the materials placed before the Court for quashing the chargesheet should not to embark upon the appreciation of evidence, and should consider only materials on record as a whole. 22. In the present case, the allegations in the FIR and materials placed before the Court as collected by the Investigating Officer in chargesheet submitted before the Magistrate are fulfilling the ingredients of the offence alleged against the accused. So far as the defences as to the malafide of leaders of ruling party, connivance with the police of such leaders for false implication or to be gathered from the evidence legally adduced before the Court during trial. Such defences can not be looked into at this stage and the Court has to see into the FIR allegations and the materials placed before the Court in the chargesheet only. 23. Such defences can not be looked into at this stage and the Court has to see into the FIR allegations and the materials placed before the Court in the chargesheet only. 23. Making prima facie findings by this Court as to the correctness, falsity of allegations in the FIR or the materials included in the chargesheet would be premature, at this stage. It is sufficient to see that whether the FIR allegations alongwith with the materials placed on record are fulfilling the ingredients of the offence alleged against the accused. 24. In the case of State of Haryana and Ors. Vs. Bhajan Lal and Ors., MANU/SC/0012/1992, the following seven guidelines are given: "(1) 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. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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. (3) 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. (4) 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. (5) 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. (6) 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. (6) 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. (7) 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." 25. In view of the aforesaid guidelines of Hon'be Supreme Court, it is clear from the materials placed before the Court in the application that there is no prima facie case to interfere in the lower court's proceeding or to quash the chargesheet after such long lapse of time of eight years or to set aside the non-bailable warrant running against the accused-applicant. The purpose of Section 482 Cr.P.C. and the power given therein is not to exercise the same for stifling the bonafide proceeding of the Court unless some abuse of process is sufficiently shown. The power is to be used sparingly. 26. There is no prima facie case as to the quashing of FIR found in the application, therefore, it deserves to be rejected. 27. Since in criminal proceeding submission of charge sheet by the Investigating Officer, the Court takes cognizance of offence on the basis of material placed in chargesheet. Thereafter it issues summon. In the present case, admittedly it is issued. If the summons are avoided then issuance of bailable warrant and ultimately when that is too avoided, non-bailable warrant is issued. If non-bailable warrant is also defied then the procedure under Sections 82 and 83 Cr.P.C is to be started. From the allegation made in the application, it is clear that after chargesheet, summoning was made first by the Court and ultimately after the lapse of eight years, presently non-bailable warrant is running against the accused-applicant. Therefore, there is no skip in the procedure and no abuse of process on the part of complainant or the Court reflecting from the application. 28. Therefore, there is no skip in the procedure and no abuse of process on the part of complainant or the Court reflecting from the application. 28. In view of the procedure provisioned in Criminal Procedure Code, 1973 to procure the attendance of accused before the Court in proceeding of trial the issuance of process like summons then bailable warrant or non-bailable warrant as and when required under the alternating circumstances before the court is not punitive. The case on the part of court is not to skip the proceeding prescribed for issuing them. In the present case such skipping of proceeding is neither pleaded nor shown by the materials on record. 29. However, hearing the learned counsel for the parties, it becomes apparently clear that the applicant is afraid of process against her however the purpose of the process is only to ensure the presence before the Court for the participation in the trial. 30. Learned counsel conceded that the accused-applicant would like to participate if her personal liberty is secured. If it is so then it is bonafide on the part of accused-applicant to have intent of participating in the proceeding. It is just and proper to secure the liberty of the accused-applicant keeping in view her bonafide intention. In Kamaladevi Agarwal vs. State of W.B. & ors., (2002) 1 SCC 555 , this Court opined: 18. In that view of the matter and keeping in view the peculiar facts and circumstances of this case and with a view to do complete justice to the parties, we, in exercise of our jurisdiction under Article 142 of the Constitution of India, direct that in the event the appellant appears before the learned Magistrate within a period of four weeks from date and files an application for grant of bail, he shall be released on bail on such terms and conditions as the learned Magistrate may seem fit and proper. In the event, the appellant files an application for exemption from his personal appearance, the same may also be considered on its own merits. It would be open to the complainant to consider the offer of the appellant." 31. Further, this is important to refer here that in case of Joginder Kumar Vs. State of UP, (1994) 4 SCC 260 , it is held that arrest is not a must when FIR is lodged in a cognizable offence. It would be open to the complainant to consider the offer of the appellant." 31. Further, this is important to refer here that in case of Joginder Kumar Vs. State of UP, (1994) 4 SCC 260 , it is held that arrest is not a must when FIR is lodged in a cognizable offence. Further, Hon'ble the Apex Court held that arrest of person can cause irreparable loss to the person's reputation. 32. In the application, the applicant has averred the status of applicant as 68 years old lady of political carrier, therefore, simply by reason of defaulting the process of the Court issued to procure her appearance in the trial her arrest can cause irreparable loss to her present reputation. 33. Keeping in view in the full bench decision of Hon'ble High Court, Allahabad in Amravati Vs. State of UP, (2005) CriLJ 755 (Allahabad) approved by Hon'ble Supreme Court (Supra) in Joginder Kumar Vs. State of UP and Anothers, (1994) AIR SC 1349 held that the Court if it deems fit in the facts and circumstances of the case, may grant interim bail pending final decision of the bail applications though in the present case, Section 438 Cr.P.C. is made applicable in the State of UP also but so far as the principles propounded in the case of Amravati (Supra) by the full Bench of our own High Court as approved by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P and Anothers, (2009) 3 ADJ 322 are fully applicable in the circumstances and facts of the case in hand where the non-bailable warrant for the reason of skipping the process issued to procure the presence of applicant in trial running against her. 34. This would be in the interest of justice to make balance between the apprehension of the feared applicant from the non-bailable warrant running against her with regard to irreparable loss of her reputation and in convenience of her presence being lady of 68 years old age and the proceeding of a legitimate trial running against her by issuing certain directions in exercise of power under Section 482 Cr.P.C. as follows. 35. 35. In view of the aforesaid observation, the accused-applicant if appears within three weeks from the date of order and applies for bail, the Court concerned is directed to entertain the same promptly as soon as practicable, if possible, on the same date keeping in mind that the accused-applicant is a 68 years old lady and she is willing to participate in proceeding, moreover, the purpose of issuance of process is only to ensure the participation in the trial, the same be disposed of. 36. Till the aforesaid three weeks or till the applicant appears/surrenders and applies for bail on non-bailable warrant running against the accused-applicant, no coercive action shall be taken pursuant to the non-bailable warrant. 37. Accordingly the application under Section 482 Cr.P.C. is disposed of.