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Naib Tahsil Sadar Sri Vyas Narain Umrao v. State Of U.P. Thru' Home Secy. Lucknow And Others - CRIMINAL MISC. WRIT PETITION No. 3176 of 2003  RD-AH 175 (20 June 2003)
COURT NO. 34
CRIMINAL MISC. WRIT PETITION NO. 3176 Of 2003
Naib Tahsil Sadar Sri Vyas Narain Umrao,
Tahsil Sadar, District Allahabad ----- Petitioner
State of U.P. & Ors. ----- Respondents
CRIMINAL MISC. WRIT PETITION NO. 3187 OF 2003
Dinesh Dubey, Collection Amin,
Tahsil Sadar, District Allahabad ----- Petitioner
State of U.P. & ors. ----- Respondents.
CRIMINAL MISC. WRIT PETITION NO. 3188 OF 2003
Shashi Bhushan, Collection Amin,
Tahsil Sadar, District Allahabad ----- Petitioner.
State of U.P. & ors. ----- Respondents.
Hon'ble Rajes Kumar, J.
(By Hon'ble Dr. B.S.Chauhan, J.)
All these three writ petitions are for quashing the F.I.R. dated 6.6.2003 (Annexure ''8' to the writ petition), and at the request of the learned counsel for the parties these petitions were tagged and heard together considering the Criminal Misc. Writ Petition No.3176 of 2003 as the main case.
The facts and circumstances giving rise to this case are that while making the recovery under the provisions of U.P.(Public Money) Recovery of Debt Act, 1972 read with U.P.Zamindari Abolition & Land Reforms Act, 1950 and the Rules framed thereunder, as Rules of 1952, one Mahmood Husain, the younger brother of the complainant Mirza Mahmood Husain, who was running a Medical Store, styled as Hayat Pharmacist, was taken by all the present petitioners for the purpose of making the recovery of certain amounts outstanding towards him. He was detained in a lock-up who died after some time and the complainant lodged the said F.I.R. Hence all these petitions for quashing the same have been filed.
Shri A.P.N.Giri, learned counsel appearing for all the petitioners has vehemently submitted that the F.I.R. does not make out any offence being very vague and premature as it could not have been lodged without preliminary enquiry conducted by the administration. The F.I.R. has been lodged because of mala fides and with malicious intentions. The petitioners after arresting Shri Mahmood Husain produced him before the Tahsildar, the authority, who had issued the warrant of recovery under the said Rules of 1952, and once he had been produced before the competent authority under the Act and the Rules, the duty of the petitioners was completely over and they cannot be held responsible for the death in lock-up. More so, the post-mortem report does not show that death could be caused by the injuries shown in the post-mortem report, nor the cause of death shown in the post-mortem report is trustworthy. The State has issued the Government Order dated 8th March, 2001 (Annex. S.A.2) to lodge the F.I.R. in case of custodial death only after holding a proper enquiry. Therefore, the F.I.R. is liable to be quashed.
Shri A.K.Tripathi, learned A.G.A. has vehemently opposed the submissions made by Shri A.P.N. Giri contending that the cause of death or the post-mortem report cannot be considered at this stage. There is nothing on record to show that the petitioners after arresting the deceased detenue, had ever produced him before any statutory authority and handed over his custody to him, or the said authority had passed any order to detain him in lock-up. Therefore, whatever may be the procedure prescribed in the statute, in absence of any document to show that the deceased-detenue had ever been produced before any authority and the said authority had passed any order of detention in lock-up, petitioners cannot escape their liability, and thus, the petitions are liable to be dismissed.
Shri S.S.Rathore, Advocate, appearing for the complainant has submitted that the post-mortem report if examined, makes it clear that the death was caused by injury no. 1 received by the detenue-deceased in his fore-head, and as petitioners did not produce the deceased-detenue before any statutory authority, they are responsible for causing his death. And in case of custodial death, this Court should not give any indulgence at this preliminary stage for quashing the F.I.R. when the investigation is yet to be carried out.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
Legal maxim "Quando Aliquid Mandatur, Mandatur Et Omne Per Quod Per Venitur Ad Illud"- means if anything is commanded, every thing by which it can be accomplished is also commanded. But the inherent power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R. or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. The same can be resorted to for correcting some grave errors that might be committed by the subordinate courts or where the complainant, at the instance of somebody else wants to settle his score with other party and uses deliberately the machinery of the Court for oblique purpose and the party is likely to be subjected to unnecessary harassment for facing criminal proceedings or where the Court is satisfied that in case the proceedings are not quashed, there will be gross miscarriage of justice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ''soft-pedal the course of justice" at a crucial stage of investigation/ proceedings. (Vide Emperor Vs. Khwaja Nazir Ahmed, AIR 1945 PC 18; Kurukshetra University Vs.State of Haryana, AIR 1977 SC 2229; State of West Bengal Vs. Swapan Kumar Guha, AIR 1982 949; Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao
Angre & ors., AIR 1988 SC 709; Janta Dal Vs. H.S. Chowdhary & ors. , AIR 1993 SC 892; Union of India Vs. W.N. Chadha, AIR 1993 SC 1082; Rupan Deol Bajaj & Anr. Vs. Kanwar Pal Singh Gill & Anr. , (1995) 6 SCC 194; Musthaq Ahmad Vs. Mohammed Habibur Rahman Faizi & ors., (1996) 7 SCC 440; State of Bihar Vs. Rajendra Agrawal, JT 1996 (1) SC 601; Ashim Kumar Roy Vs. Bipinbhai Vadilal Mehta, (1998) 1 SCC 133; M/s. Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & ors. , (1998) 5 SCC 749; M. Krishna Vs. State of Karnataka, JT 1999 (1) SC 540; Rakesh Ranjan Gupta Vs. State of U.P. & ors., (1999) 1 SCC 188; State of Kerala Vs. O.C. Kuttan, AIR 1999 SC 1044; Arun Shanker Shukla Vs. State of U.P. & ors, (1999) 6 SCC 146; Satvinder Kaur Vs. State (Govt. of N.C.T. of Delhi ) & Anr., (1999) 8 SCC 728; Kanti Bhadra Shah & Anr. Vs. State of West Bengal, (2000) 1 SCC 722 and G. Sagar Suri & Anr. Vs. State of U.P. & ors., (2000) 2 SCC 636).
In State of U.P. Vs. O.P. Sharma, (1996) 7 SCC 705, the Hon'ble Supreme Court has indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 of the Code or under article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course. Similar view had been taken in Pratibha Rani Vs. Suraj kumar & Anr., AIR 1985 SC 628.
State of Karnataka Vs. L.Muniswami AIR 1977 SC 1489 the Apex Court held that " for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible".
In Smt. Nagawwa Vs.Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947, the Hon'ble Supreme Court held as under:-
"(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2)Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3)Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guide-lines to indicate contingencies where the High Court can quash proceedings."
In L.V. Jadhav Vs. Shankarao Abasaheb Pawar, AIR 1983 SC 1219, the Apex Court held that Court's power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the high Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceeding against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations.
Similar view has been reiterated in The Nagpur Steel and Alloys Pvt. Ltd. Vs. P. Radhakrishna, (1997) SCC (Crl.) 1073.
In Trisuns Chemical Industry Vs. Rajesh Agarwal & ors., ( 1999) 8 SCC 686, the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj Vs. State N.C.T. of Delhi, AIR 1999 SC 1216 and observed that the inherent power of the High Court should be limited to very extreme exceptions.
In M/s. Medchl Chemicals & Pharma Pvt. Ltd. Vs. M/s Biological E. Ltd. & ors. , JT 2000 (2) SC 426, the Apex Court placed reliance upon its earlier judgments, including
Dr. Sharma's Nursing Home vs. Delhi Administration, (1998) 8 SCC 745, and held that a criminal prosecution can be short-circuited in rarest of rare cases, and even in a case of breach of contract, not only civil remedy is attracted but a person can be held responsible for criminal prosecution and under no circumstance ''civic profile' can out-way the ''criminal out fit.'
In State of Haryana & ors. Vs. Ch. Bhajan Lal & ors., AIR 1992 SC 604, the Hon'ble Supreme Court laid down the guide-lines for exercising the inherent power as under:-
(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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S. 156(1) of the Code except under an order of a Magistrate within the purview of S.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 as case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by as police officer without an order of a Magistrate ass contemplated under S. 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 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 malafide 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."
The issue of mala fides decided by the Hon'ble Apex Court in clause (7) referred to above has to be read with the observations made in the same judgment further where it has been held as under:-
"At this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides."
In Sheonandan Paswan Vs. state of Bihar, AIR 1987 SC 877, the Hon'ble Apex Court while dealing with the issue of mala fides in criminal law observed as under:-
"It is well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant."
Similarly, in State of Bihar Vs. J.A.C. Saldanna, AIR 1980 SC 329, the Apex Court has held as under:-
"It must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produced unimpeachable evidence disclosing he offence."
In Sarjudas & anr. Vs. State of Gujarat, 1999 (8) SCC 508 the Hon'ble Supreme Court held that there must be cogent evidence of mala fides or malicious intention of the informant or the complainant for taking note of the allegations of mala fide. The bald statement in this respect is not sufficient.
Similar points have been formulated by the Aex Court in State of West Bengal Vs. Mohammed Khalid, AIR 1995 SC 785.
In State of Delhi Vs. Gyan Devi & ors., AIR 2001 SC 40, the Hon'ble Supreme Court deprecated the practice of interference in exercise of the power under Sections 228 and 482, Cr. P.C. for quashing the charges in a matter where no strong reason could be found and held that in the interest of justice and in order to avoid the abuse of process of the court, the charges needed to be quashed. The Apex Court observed as under:-
"At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 Cr.P.C. seeking for the quashing of charge framed against them the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record should not be entertained sans exceptional cases."
In Minakshi Bala Vs. Sudhir Kumar, (1994) 4 SCC 142, the Hon'ble Apex Court held that once the charge had been framed Under Section 240 Cr.P.C., the high Court, in exercise of its revisional jurisdiction, is not justified in invoking its inherent power to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. Similar view has been reiterated by the Hon'ble Supreme Court in State of Madhya Pradesh Vs. S.B. Johan, (2000) 2 SCC 57.
In Ram Kumar Laharia Vs. State of Madhya Pradesh & Anr., AIR 2001 SC 556, the Supreme Court considered the scope of exercise of revisional powers and held that at this stage, the Court is not permitted to weight the evidence. Whatever is permissible in law is that the court can assess the improbability or absurdity of the statement of witnesses. In case the evidence so collected prima facie suggests direct contact with the accused, the court cannot interfere with the order of framing the charge.
In Smt. Om Wati & Anr. Vs. State through Delhi Admn. & Anr., AIR 2001 SC 1507, the Apex Court held that in exercise of the revisional jurisdiction, the High Court is not permitted to interfere at initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons. The Court observed as under:-
"We would again remind the High Courts of their statutory obligation not to interfere at initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which, in law, amounts to interdicting the trial against accused persons. Unscrupulous litigants should be discouraged from protracting the trial and prevent culmination of the criminal cases by having resort to uncalled for and unjustified litigation in the cloak of technicalities of law."
Thus, in view of the above, it is settled legal proposition that the High Court, in exercise of its powers under Article 226/227 of the Constitution or Section 482 Cr.P.C. is not permitted either to weigh the evidence or examine the adequacy of the evidence for framing of the charges and if it comes to the conclusion that there is some prima facie evidence connecting the accused with the crime, the charge cannot be quashed at this stage. However, the Court has to examine that in case the ingredients of the offence alleged against the accused are absent in the fact and circumstances of the case and the trial was nothing but an abuse of the process of the court, the court should not hesitate in quashing the charges.
In Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh & ors. , (2002) 5 SCC 371, the Hon'ble Apex Court quashed the charges for the reason that the appellant therein had been charged of the offence of abetment and after considering the evidence, the Apex Court recorded the finding that the ingredients of abetment were totally absent in the facts and circumstances of the case. Similarly, in Ram Ekbak Missir Vs.Ram Niwash Pandey & ors., (2002) 8 SCC 161, the Hon'ble Supreme Court quashed the criminal proceedings wherein the cognizance of the offence was taken after twenty-one years of lodging the first information report and the case had been dragged for more than two decades without any fault on the part of the accused. More so, the Apex Court also came to the conclusion that the cognizance had been taken in a mechanical manner. It has further been observed that neither the victim nor the accused should suffer by the mischief of the investigating agency or the staff of the court and such a delay was found to be a ground for quashing the charges.
Thus, if the case of the petitioners is examined in the light of the aforesaid settled legal propositions, we find it difficult to examine the evidence on record at this stage, and if the F.I.R. is taken to be true on its face value, it cannot be held that no offence is made out against the petitioners. It is not in dispute that the detenue had died in lock-up. There is nothing on record to show that the petitioners had handed over the deceased-detenue to any statutory authority, who had passed the order to keep him in the lock-up. Thus at this stage, it cannot held that once the petitioners handed over the custody of the detenue to the statutory authority, no prosecution can be initiated against them. The Government Order dated 8th March, 2001 does not have any statutory force; it is only for the understanding of the department and may be relevant only in a case where no F.I.R. has been lodged already. The report submitted by the learned Tahsildar to the Police Station Cantt dated 6.6.2003 (Annex. 5 to the writ petition) itself reveals that the deceased-detenue was arrested at 1.50 P.M. and died within the period of five minutes thereof.
Even otherwise, if the argument of Mr. Giri that F.I.R. could not be lodged till completion of the enquiry as provided by the G.O. dated 8.3.2001 is accepted, it will render the provisions of Section 154 Cr.P.C. nugatory and take away the statutory right of a person aggrieved of lodging and registering the F.I.R.
The object of lodging the F.I.R. is to put the police in motion in order to investigate into the crime. Its evidentiary value is not very much as it is not a substantive piece of evidence but its value depends on the circumstances of each case including the nature of the crime and the position of the informant etc. The receipt and recording of the information by the police, though may not be a condition precedent for setting in motion of a criminal proceeding but it is a statutory right of the complainant to lodge a report for the reason that an informant has a right to set the criminal law in motion and also from the point of view of the investigating authorities it is important for obtaining information about the alleged criminal activity so as to take appropriate and suitable steps for tracing and bringing at the book the guilty party.
Section 154 of the Code has three-folded objects, i.e. (i) it keeps the police and the District Magistrate to inform; (ii) it makes available to the Judicial Officer the material on which the investigation commences; and (iii) it is a safe-guard against embellishment or forgetfulness. Moreso, it is not necessasry that there must be a complete or satisfactory proof of the offence at the time as the information may merely indicate that the offence has been committed. The F.I.R. must be recorded at-once and the police cannot wait until it is certain that the offence has been committed. The information can be lodged by any person and it is not necessary that the offender or the witnesses should be named therein.
The issue: whether F.I.R., when lodged, must be lodged or not, has been considered from time to time by the courts. In A.R. Antuley Vs. Ramdas Sriniwas Nayak, AIR 1984 SC 718, the Constitution Bench of the Hon'ble Supreme Court has held that "any one can set or put the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. The scheme of the Code of Criminal Procedure envisages two parallel and independent agencies for taking criminal offences to Court. Even for most serious offence of murder, it was not disputed that a private complaint cannot only be filed but can be entertained and proceeded with in accordance with law. Locus standi of the complainant is a concept foreign to the criminal jurisprudence.
In State of Haryana Vs. Bhajan Lal & ors., AIR 1992 SC 604, the Hon'ble Sujpreme Court observed as under:-
"At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154 (1) of the Code, the concerned police officer cannot embark upon an enqujiry as to whether the information lodged by the informant is reliable or genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible . On the other hand, the Officer Incharge of a Police Station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157...... Be it noted that Section 154 (1) of the Code, the Legislature in its wisdom has carefully and consciously used the expression 'information' without qualifying the same as in Section 41 (1) (1) or (g) of the Code wherein the expressions 'reasonable complaint' and 'credible information' are used. Evidently, the non-qualification of the word 'information' in Section 154 (1) unlike in Section 41 (1) (a) and (g) of the Code may be for the reason that the Police Officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information.In other words 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case."
From the above, it becomes apparent that the only condition precedent for recording the F.I.R., is that there must be an information disclosing commission of a cognizable offence and once such an information is furnished, it becomes sine-qua-non for lodging the report and in such a situation when information disclosing commission of a cognizable offence is conveyed to the Officer Incharge of a Police Station, he cannot refuse to register a case on the ground that the information is not reliable or credible, rather he is under legal obligation to register a case on the said information. Needless to say that he has an option under Section 157 of the Code subsequent thereto to make up his mind as to whether he would or would not enter on an investigation.
Even otherwise, under the Scheme of the Code, on registration of a case under Section 154 (1) of the Code, irrespective of whether the investigation is embarked upon or not, the matter is bound to be placed before an independent and impartial judicial forum and when it is so placed, various options are available to the judicial officer. Therefore, to accept the submissions made on behalf of the State would have the effect of the matter never coming to the guise of the judicial scrutiny. Such a situation has not been contemplated by the Code.
In Kuldeep Singh Vs. State, 1994 (2) AD (Delhi) 445, the Delhi High Court, in a similar case, held as under:-
"Confirment of absolute and uncanalised discretion to the police to register a cognizable offence or not, would be violative of equality clause enshrined in our Constitution. The Code vests power in judiciary to control the discretion of the police. The judiciary will remain unaware in absence of recording the F.I.R. Whenever the police officer, after recording of the F.I.R., has reasonable doubt about the commission of a cognizable offence, he has power not to proceed with investigation but that is subject to check by the judiciary...... on information being led before the police about the commission of cognizable offence, the police has no option but to register the case and then to proceed with investigation of the case under the provisions of Chapter XII of the Code..... The police has no right to refuse registgration of a case on the information being led before it about the commission of cognizable offence and instead proceed with an enquiry and refuse registration as a result of said enquiry."
In Mohindro Vs. State of Punjab & ors., 2001 Cr.L.R. (SC) 132, the Hon'ble Supreme Court rejected the submission of the investigating agency that F.I.R. under Section 154 (1) of the Code cannot be registered for the reason that enquiry in the matter had already been conducted and held that enquiry cannot be conducted without registering a case. The Hon'ble Supreme Court directed that a case be registered on the basis of the report at the Police Station having territorial jurisdiction and to duly investigate into the matter and to take appropriate action according to law.
It is settled legal position that no Government Order can take away the statutory rights. Therefore, we find no force in the submission of Shri Giri that the F.I.R. could not have been lodged prior to completion of the magisterial enquiry in the matter. In view of the above, petitions are liable to be dismissed and we see no ground to interfere at this stage.
Petitions are, accordingly, dismissed.
However, it is clarified that no observation made hereinabove shall adversely affect the rights of either of the parties.
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