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SURYA BHAN KARWARIA & ANOTHER versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Surya Bhan Karwaria & Another v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 1966 of 2006 [2006] RD-AH 4523 (24 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

  AFR

Reserved

Criminal Misc. Writ Petition No. 1966 of 2006.

Surya Bhan Karawaria and another. .... .... ...Petitioners.

Versus

State of Uttar Pradesh and others. .... .... ...Respondents.

   -------

 Present:

    (Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Shiv Shanker)

Appearance:

For the Petitioners : S/Sri U.N. Sharma, Sr. Advocate,

Anil Kumar Bajpai & Chandan Sharma.

For the Respondents: A.G.A.

-----------

Amitava Lala, J.-- The complainant lodged the first information report on 07th February, 2006. He said that his wife Smt. Bachchi Devi is an elected Member of Kshetra Panchayat. On 24th January, 2006, when he had gone out of home for some essential work, the petitioner no. 1, a candidate of Pramukh Kshetra Panchayat, and petitioner no. 2, the village Pradhan, came to his house at about 6.00 O'clock in the evening along with rifle and gun and threatened his wife to cast vote in his favour. In turn, she said that she will not take any decision without any consultation with her husband. Thereafter, the petitioners abducted his wife by force with a threat of life and property. With the hope of return of her, he waited for few days. But ultimately when she did not return, he  lodged this first information report.

The Court has to take into account the prima facie case in the first information report to come to a conclusion. Upon going through the Section 364 I.P.C. we are of the view that ingredients of making a prima facie case of abduction are available in the first information report. Section 506 I.P.C. relates to criminal intimidation to which this Court found ingredients of prima facie case. So far as the S.C./S.T. Act is concerned, no specific case has been made out. The abductee belongs to SC/ST class. However, all the sections under both the Acts have cumulative effect. Therefore, the Court has no need to consider any other factum to come to an appropriate conclusion.

The petitioners wanted to establish a case on the basis of the supplementary affidavit with annexures in the nature of statements of the abductee and two others under Section 200 Cr.P.C. and 202 Cr.P.C. respectively. It is stated therein that she was not abducted at all. She had gone to Vindhyachal and subsequently to the place of 'Mela' at Allahabad along with her husband and father in-law. Her husband left the place earlier on 05th February, 2006. It has been contended that with the influence of a political party for the Chairmanship of one Kshetra Panchayat, Manjhanpur,  pressure has been made upon the abductee. In fact, on 09th February, 2006 one Sri Hari Mohan and one Sri Karan Singh along with two policemen started abusing her when she was coming to a bus stand and forced her to accompany them. To avoid untoward incident she started crying and after hearing her hue and cry she was surrounded by a group of people and upon seeing that, they have fled away. Hence, such complaint was lodged.

It is to be remembered that there is a legal bar in connection with proceedings of anticipatory bail in this State. As as result whereof, the special jurisdiction i.e. criminal writ jurisdiction has been formed. Although it is a Court of criminal writ jurisdiction but this Court can not behave like an appellate court, revisional court or the fact finding court. We are aware that wide power of the High Court is there under Article 226 of the Constitution of India. But when the power is more, caution is much more. It is well settled by now that in the rarest of the rare case Court will interfere with the F.I.R. to quash the same. It is also well settled that this Court should not proceed only on probabilities. We are not aware what would be the ultimate fate of the controversy. Therefore, our duty is limited in connection with arrest or no arrest only on the prima facie case of the F.I.R.. We have to evaluate the face value. Therefore, the Court has nothing to do in respect of counter complaint, if any, which is not impugned hereunder. If any face value subsists in such complaint, the same can be subject matter of the different proceedings, if advised to proceed with.

However, at the time of making arguments Mr. U.N. Sharma, learned Senior Counsel appearing for the petitioners, has brought our notice to a very important question of the day i.e. criminalisation in the politics. He contended that the days are such that both the crime and the politics can not be separated. He said, abduction of a candidate or a voter before election and releasing after election appears to be regular feature. No one is free to cast his vote or express his mind as per his own choice. It is such a serious matter, we can not refrain ourselves from taking judicial notice. A candidate, who has already been elected in Kshetra Panchayat, has no independent say where she will cast her vote. It is an independent right of a citizen. Nobody can force such person in casting vote to one group or other. If she is member of a political party, obviously that political party will hope about casting of vote in its favour. In case there is any difference of opinion, discipline has to be maintained by whip. Otherwise, she is free to cast vote in favour of anybody. Normally in the lower level i.e. in the case of Kshetra Panchayat etc. direct involvement of  political parties may or may not be available in choosing their candidates. Sometimes they are polarised in favour of one group or the other. Therefore, there is every possibility of changing side and there the danger lies. However, we should not restrict our outlook to the Kshetra Panchayat alone but expand on the broader spectrum in respect of criminalisation in the politics. Article 21 of the Constitution of India prescribes protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to the procedure established by law. Free franchise is the essential part of personal liberty of a citizen. If it is not protected, the democracy will be in danger. Policy of equality before law or equal protection of laws within the territory of India is touch stone of such right. Can it be said that freedom of speech and expression, which has been protected under Article 19 (1)(a) of the Constitution, will not be allowed? Our answer is 'No'. Free and fair franchise is essential part of freedom of expression. By amendment of the Constitution with effect from 24th April, 1993 the Panchayats are incorporated in the part IX of the same. State Election Commission is vested with a power of election under Article 243-K of the Constitution of India. Such power is not an illusory power. Power is to be utilized with its proper prospective on the appropriate necessity by utilizing mechanism available for it. Police and executives are supposed to render all assistance to the Election Commission to create an atmosphere so that there should be free and fair franchise without any interference of any body. Hooligans should be treated with strong hands to protect the democracy. No person having criminal background, before or after election, should be tolerated. Visualise the situation that a lady is either abducted or avoiding abduction only for her independent franchise. Thousands of modernisation will not improve the country unless we understand the basic. This is high time to stop the frankenstein. Question of democratic reforms is not unknown to the Court. Reference can be made in connection with Union of India Vs. Association for Democratic Reforms [(2002) 5 SCC 294] and PUCL Vs. Union of India [(2003) 4 SCC 399]. Our observation will be futile if the same is not taken notice by the Election Commission or the State machinery. Therefore, within the limited scope of present jurisdiction we have send the message about our anxious thought.

So far as the relief is concerned, as we have already held that we can not proceed beyond the scope of prima facie case in the first information report. We are of the view that we should not interfere with it only on the probabilities but to proceed on the guidelines of the Supreme Court as under AIR 1992 SC 604 (State of Haryana and others Vs. Ch. Bhajan Lal and others) and 2004 SCC (Cri) 353 (State of M.P. Vs. Awadh Kishore Gupta and others).

Hence, the writ petition stands dismissed.

No order is passed as to costs.      

However, in case petitioners appear  or produced before the Court concerned and apply for bail in connection with Case Crime No. 16 of 2006, under Sections   364, 506 I.P.C. read with Section 3 (1)(vii) and 3(2)(v) of S.C./S.T. Act, Police Station Manjhanpur, District Kaushambi, the same shall be decided in accordance with law.  

(Justice Amitava Lala)

     I agree.

(Justice Shiv Shanker)

Dated: 24th February, 2006.

SKT/1966-06.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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