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2022 DIGILAW 327 (UTT)

Raghvendra Tiwari v. State of Uttarakhand

2022-09-28

SHARAD KUMAR SHARMA

body2022
JUDGMENT : When this C482 Application was initially argued, the co-ordinate Bench of this Court had formulated the following issues, on which the learned government advocate was called upon to answer, as to how the offence under Section 500, which happens to be in the shape of a private complaint, could at all be registered as a State case. The question, as formulated by the co-ordinate Bench of this Court on 10.05.2022, is extracted hereunder:- “The Court wanted to know from the learned counsel for the State and learned counsel for the private respondent that, as to how, on an FIR, charge-sheet may be filed for the offence punishable under Section 500 IPC?” 2. There are various rival contentions, which have been raised by the learned counsel for the parties qua their respective cases, about the sustainability of the proceedings, as a State case. In case, had it been an isolated case for conducting trial for the offence under Section 500 of IPC, which as per the IPC, it's a non cognizable and bailable offence, which is triable by the Magistrate, and there cannot be any iota of doubt as such, that had it been a case exclusively under the domain of Section 500, it should have been registered as a complaint case only. But there would be an exception to the instant case owing to the FIR, which was got registered, being FIR No. 10 dated 5th January 2020, where the offences, which was complained of by the complainant was under Section 500, 504 and 506 of the IPC, which has to be compositively read with for the purposes of taking cognizance and for the conduct of trial too. 3. So far as the offence contained in the FIR under Section 504 of the IPC is concerned, under the IPC, it is too a non cognizable and bailable offence, which is triable by a Magistrate. 3. So far as the offence contained in the FIR under Section 504 of the IPC is concerned, under the IPC, it is too a non cognizable and bailable offence, which is triable by a Magistrate. But only owing to the fact that in the FIR, which was got registered on 05.01.2020, the offence under Section 506 was incorporated, which as per an unamended law applicable prior to the carving out of Uttarakhand State, the amendment made by the UP State by a Notification dated 31st July 1989, it too would have been both non cognizable, bailable and tribal by the Magistrate, but since the U.P. State had carried an amendment under Section 506 of IPC, so far its applicability in the State of U.P. is concerned and by virtue of a Notification No. 777/VIII 9-4(2)/87 dated 31st July 1989, as it was got published in the Official Gazette, the offence which was contained under Section 506 of the IPC, was made as cognizable and non-bailable offence. However, the sentence which was contemplated to be imposed therein, so far it relates to the State of UP as a consequence of 1989 amendment, it was seven years imprisonment and a fine and both. 4. At the time when the State of Uttarakhand was created i.e. on 9th November 2000, with the enforcement of the provisions of the U.P. Re-organization Act, the adoption of law was contemplated under Section 87 of the U.P. Reorganization Act, which is extracted hereunder:- “87. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Explanation.- In this section, the expression" appropriate Government" means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government. 5. Explanation.- In this section, the expression" appropriate Government" means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government. 5. The provisions contained, under Section 87 of the U.P. Re-organisation Act, had provided, for an adoption of law, it provided, that all law in relation to the State of Uttar Pradesh or Uttaranchal or any law made or which was prevalent before the appointed date, the appropriate government may before expiry of two years from the date of the appointed date i.e. 09.11.2000, by order make an adoption of law. In that eventuality, as per the opinion of this Court, the amendment, which was carried by the said Notification dated 31st July, 1989, issued by the State of U.P., since it stood already incorporated by virtue of UP amendment and was a law, and it was in existence in the eyes of law, at the time when the State was created i.e. 09.11.2000, the U.P. Amendment would continue to apply in the State of Uttarakhand, so far, it related to the amendment carried under Section 506 of the IPC, which constituted as to be one of the offences, which was included in the FIR, which was registered against the applicant. 6. The learned counsel for the applicant has submitted, that ultimately, the validity of the said Notification dated 31st July 1989, was put to challenge and was under judicial considered by the Division Bench of Allahabad High Court in the case of Virendra Singh and others Vs. State of UP and others, as decided on 1st August 2002, and the Division Bench of the Allahabad High Court, in the judgement reported in 2002 Cri LJ 4265, in para 7 and 8, it had held that the Gazette Notification of 1989 is to be illegal and the amendment, which was made under Section 506 of the IPC, will not be sustainable in the eyes of law, because no amendment could be carried by virtue of issuance of a Notification. 7. Be that as it may. 7. Be that as it may. In response to it, the learned counsel for the respondent, as well as the learned Deputy Advocate General for the State, submitted that the effect of the judgment, rendered by the Division Bench of the Allahabad High Court, since being subsequent to the creation of the State of Uttarakhand i.e. on 1st August 2002, its effect would not apply so far it relates to the amendment, which already stood incorporated in relation to the provisions contained under Section 506 of the IPC, by virtue of the Gazette Notification of 31st July 1989, since it was a valid existing law prevalent and in vogue at the time when the State was created on 09.11.2000, its amendment would still continue to apply in the State of Uttarakhand, irrespective of the same having being later on declared, as to be ultra vires by the Division Bench of Allahabad High Court, subsequently in by the judgment, which was rendered on 1st August 2002. Because in the absence of there being any corresponding judgment, rendered by the High Court of Uttarakhand, dealing with the propriety of the Notification dated 31st July 1989, by virtue of which Section 506 IPC stood amended the judgement of 1st August 2002, will have no applicability as far as the State of Uttarakhand is concerned, for the reason being, that as per Section 87 of the U.P. Re-organization Act, it will not be an existing law, as a consequence of the effect of judgement dated 1st August 2002, which could at all be treated as to be a law prevalent as on 09.11.2000, or which stood adopted under Section 87 of the U.P. Re-organization Act. 8. 8. In that eventuality, the arguments as extended by the learned counsel for the respondent would be, that the law as provided under Article 13 of the Constitution of India, it would be the law, as it was prevailing as on 9th November 2000, or even prior to 1st August 2002, would continue to apply in the State of Uttarakhand and as a result thereto, the amendment made under Section 506, of the IPC by virtue of the U.P. State Amendment by the Notification No. 777/VIII 9-4(2)87 dated 31st July 1989, will not be clouded at all by the judgement of Allahabad High Court dated 1st August 2002, because the existing law, as applicable in the State of Uttarakhand under Section 87, would be an unamended law, which was prevalent and in vogue which it stood adopted under Section 87 of the U.P. Re-organization Act. 9. In view of the aforesaid logic, the learned counsel for the respondent, as well as the Government Advocate, had submitted, that though there might not have been any corresponding amendment under Section 500 of the IPC, bringing the offence to be cognizable or non bailable, even then too, when the FIR has been registered on 05.01.2020, which is inclusive of the offences under Section 500, 504 and 506, it will have to be read in conjunction and in correlation to the offences under Section 506 of the IPC also, which as per the State amendment by virtue of an adoption, which stood applicable as on 9th November 2000, since it would continue to apply, for the aforesaid reason, it would be a cognizable offence and non bailable, for which only State case could have been registered, which has been done in the instant case. The provisions of Section 500 and 506 of IPC are extracted hereunder:- “500. Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 506. The provisions of Section 500 and 506 of IPC are extracted hereunder:- “500. Punishment for defamation.—Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. 506. Punishment for criminal intimidation.—Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” 10. In that eventuality, the question as observed by the co-ordinate Bench of this Court, vide its order dated 10th May 2022, this Court is o the opinion that had it been exclusively in the light of the consideration of the offence under Section 500 of IPC, it could have been sustained, but not when the FIR also relates to the provisions contained under Section 506 of the IPC; which is independent to the provision contained under Section 500 of the IPC, as both the provisions have a different implication and legislative intent and different term of sentence and different purpose in the legislature, the registration of the State case, in an FIR which is inclusive of the offence under Section 506 of the IPC, cannot be faulted of , merely because of an addition of an offence, under Section 500, which otherwise, as per the existing law as referred to above is both bailable and non cognizable offence. 11. The FIR for the purposes of answering the question, which was formulated by the coordinate Bench of this Court on 10th May 2022, will have to be read conjointly along with the offence under Section 506 of IPC, which pertains to the criminal intimidation, which is absolutely a distinct provisions to the offence is contemplated under Section 500 of the IPC, which is in relation to the punishment for defamation. 12. 12. In that eventuality, the registration of a State case cannot be said to be illegal, merely because Section 500 of IPC has been referred to in the FIR. Hence, the aforesaid question is answered accordingly, that registration of the State case for the conjoint offences under Sections 500, 504 and 506 of IPC cannot be faulted of in any manner whatsoever, nor it is legally prohibited, for the aforesaid reasons. 13. Subsequent to the answers of the aforesaid question, it has been argued by the learned counsel for the applicant, that if the contents of the FIR are taken into consideration, it is nothing but a misuse of judicial proceeding, which has been resorted to by the respondent and hence it will fall for consideration within the provisions contained under Section 482 of the Code of Criminal Procedure. 14. But, for the purpose of meeting the arguments, which had been extended by the learned counsel for the applicant with regard to the act of malicious prosecution, as per the averments made in the FIR or the dispute which has been raised therein, pertaining to the commission of the offences under Sections 500, 504 and 506 of IPC, an individual allegation levelled against one another, and its sustainability in the eyes of law, would always be a subject matter which has to be appreciated by way of adducing evidence by the respective parties, which doesn't fall to be within the scope of consideration of the Courts exercising Section 482 jurisdiction, because it is settled principle of law that the Courts, who are ceased with the jurisdiction under Section 482 of the CrPC, have to restrict, itself while exercising their powers and will not venture into any act of appreciation of the evidence, or record its substitutive evidence in order to arrived at a conclusion contrary to the set of allegations levelled in the FIR, because appreciation of evidence and its interse impact, between the two rival parties to the proceedings is not a scope which is covered or could be ventured at all under Section 482 of CrPC. 15. 15. This is what has been held by the Hon’ble Apex Court, and that the various High Courts, while exercising their powers under Section 482 of CrPC, has to be extremely cautious and will not act as a substitutive forum for conducting an enquiry into a set of allegation and will not ordinarily embarked upon to appreciate the evidence and its reliability and then come to a conclusion as to whether there happens to be a reasonable apprehension or not, for the purposes of the offences, which have been complained of in the FIR. 16. The reasonable apprehension or the set of acquisition, and its genuineness could only be tested by the trial Court, before whom the parties would be left open to lead their respective evidence and accordingly, the Hon’ble Apex Court, has deprecated that the Courts exercising the powers under the inherent jurisdiction should sparingly and very carefully be cautious, while scrutinizing the evidence or recording its substitutive findings, based upon the arguments extended by the counsels, while assailing an offence on the basis of a scrutinisation of an allegation which had been levelled in the FIR. 17. The Hon’ble Delhi High Court, in the judgement as reported in 2000 CRLJ, has observed that the remedy of Section 482 of the CrPC is not to be treated as to be an alternative remedy of an Appeal or a Revision, where evidence could be scrutinized, and this particular rationale has been based upon by the Delhi High Court on the basis of the judgement of the Hon’ble Apex Court, as reported in 2008 (1) SCC 474 , Hamida Vs. Rashid alias Rasheed and others, and also the judgement as reported in 2008 (8) SCC 781 , Monica Kumar (Dr.) and Another Vs. State of Uttar Pradesh and others, wherein the Court has defined as to what will be the scope of exercise of powers by the Courts, under Section 482 of CrPC. The remedy, which has been made available to the litigants, while invoking provisions contained under Section 482 of CrPC, is not a specific remedy, which is contemplated under the statute, but rather it is an exceptional and extraordinary remedy which is provided, where there is an apparent error on the face of the record, which could vitiate the proceedings from its inception. 18. 18. But where the aspect of vitiation of a proceeding from its inception, is to be considered after appreciation of evidence, that itself will oust the proceedings from the ambit of Section 482 of the CrPC. This is what has been laid down by the Hon’ble Apex Court in a judgment, reported in AIR 1990 SC 494 , Mrs. Dhanalakshi Vs. R. Prasanna Kumar and others. 19. Owing to the aforesaid, since Section 482 of the CrPC, the Courts have got limited jurisdiction to be exercised, since it cannot venture into an evidence, which has been attempted to be solicited by the learned counsel for the applicant, pertaining to the set of allegations levelled in the FIR, as to whether an offence under Sections 500, 504 and 506, is made out or not, that could have only been possible after a comparative scrutiny of the evidence, as it has been referred to by the learned counsel for the applicant. 20. Since this Court is of a considered view, that it will not be a scope which would be falling within the domain of exercise of its powers under Section 482 of the CrPC, the present C482 Application is, accordingly, dismissed.