Praveen Kumar and Another Vs State of U.P and Others

Citation	APPLICATION U/S 482 No. – 9184 of 2002, Allahabad High Court (Citation of Private reporters not available)
Date of Judgement	13 November 2019
Court	Court no. 64 of Allahabad High Court
Case type	APPLICATION U/S 482 No. – 9184 of 2002
Applicants	Praveen Kumar And Another
Opposite party	State of U.P. and Others
Bench	Hon’ble Karuna Nand Bajpayee,J.
Acts referred	Criminal Procedure Code, 1973
Cases referred	Hinch Lal Tiwari vs. Kamla DeviState of Haryana and Others vs. Bhajan LalAnil Kumar vs. M.K.AiyappaL. Narayana Swamy vs. State of KarnatakaFather Thomas vs. State of U.PManharibhai Muljibhai Kakadia & Anr vs. Shaileshbhai Mohanbhai Patel & OrsPriyanka Srivastava and another vs State of U.P. and othersCricket Association of Bengal vs. State of West BengalNadir Khan v. State (The Delhi Administration)Eknath Shankarrao Mukkawar vs. State of MaharashtraMunicipal Corporation of Delhi Vs. Girdharilal SapuruJanata Dal vs. H.S. Chowdhary and ors.Bhima Naik And Ors. Vs State

Praveen Kumar and Another Vs State of U.P and Others

Facts of the case

The present case is an application filed under S. 482 of the Code of Criminal Procedure, 1973 by applicants Praveen Kumar and Vijay Shankar Mishra, to get the order dated 25.9.2002 passed by the Court of Additional Chief Judicial Magistrate(hereinafter ACJM), Court No.9, Allahabad whereby the hon’ble ACJM has allowed the Misc. Application No.172/XII/2002 filed under s. 156(3) of the CrPC by the opposite party no. 2 of the present case and ordered the police to register an FIR and invest and submit a report to the court, quashed.

Misc. Application No.172/XII/2002

The above application is filed by the opposite party no.2 in the present case, whereby opposite no.2, an employee of Dhara Singh, Advocate alleged that Praveen Kumar and Vijay Shankar Mishra came to the spot where he was raising a construction on behalf of Dhara Singh, Advocate and Munna Pandey, Advocate, with 7-8 others and started beating the labourers and abused them verbally and snatched 5,000 rupees from them.

ACJM has ordered the police to submit the report on the issue. But the police failed to submit the report on time, showing Gujarat riots as a reason and prayed time of two more days. Rejecting the plea, the ACJM ordered as aforesaid.

Further facts and background of the case

Applicant no.1 was working as S.D.M. (Sadar), Allahabad and applicant no.2 was working as Nayab Tehsildar (North), in the S.D.M. office, at the relevant time. There was a land of 10 bighas in the plot no. 408 with a market value of 16 crores in 2002. The said land was a nazul land and not to be sold as such without the sanction of the state government. The said land was transferred to the state government from Maharaja Sewai Ram Singh of Jaipur and the same was transferred to the municipal board from the state government. Following certain attempts to encroach the land by some private person, the district magistrate called a report regarding the status of the land from Additional District Government Counsel (Civil), Allahabad  in 1999 and he recommended the transfer of the said land to the state  government in the interest of justice. 

Following the judgement of the hon’ble Supreme Court in Hinch Lal Tiwari vs. Kamla Devi and others reported in 2001 (92) RD 689 (SC),  the state government has circulated an order to ensure the compliance of the judgement and having observation about removal of illegal possessions from such lands of public utility as well as land of ponds. In Case No.138 of 2002 u/s 33/39 of Land Revenue Act, the applicant no.1 ordered to enter the land in plot no. 401 in the name of state government. In continuation, applicant no.2 submitted a report to lodge fir against several persons including lekpals and revenue inspectors. 

It was pleaded in the petition that Mr. Subhash Chandra Bose (opposite party no.3 in the present petition) who was posted as Additional District and Session Judge, Allahabad had purchased land in the plot of 401 by the name of his wife. It was also alleged that with that interest he got the case filed before the ACJM by conspiring with Dhara Singh, Advocate in his court. It was also brought before the court that the said Dhara Singh was an accused in the charge sheet filed by the CBI by the order of the high court in appeal of the case that was lodged by the applicant no.2 regarding illegal trespass into the land in the plot no. 401.

Most of the above facts for being official conversations and public documents are undisputed. The applicants pleaded for the quashing of the order of the ACJM, as it is the abuse of law. 

Contentions of the applicants

The contentions of the applicants were as follows:

1. In the view of State of Haryana and others vs. Bhajan Lal 1992 (Supp.1) SCC 335, the FIR is liable to be quashed for being filed with malafide intent.
2. In view of Anil Kumar vs. M.K.Aiyappa, (2013) 10 SCC 705 and L. Narayana Swamy vs. State of Karnataka, (2016) 9 SCC 598, the order of the ACJM is without jurisdiction for want of sanction under S. 197.

These are the two major contentions of  the applicants. Further contentions mentioned in rejoinder will be dealt at an appropriate stage.

Contentions of the opposite parties

In a short affidavit filed on the date of judgement the opposite party no.2 said that the application filed before ACJM was with certain misconception and hearsay evidence and he supported the prosecution case and stated that he will not go for further litigation over this matter.

The government advocate, however, disputed the locus standi of the applicants  in the view of Father Thomas vs. State of U.P, (2000) 41 ACC 435.

Issues of the case

The High Court has framed the following three issues

1. whether the impugned order is vitiated by non compliance of section 197 of Cr.P.C. in view of Anil Kumar’s case and L. Narayana Swamy’s case and whether the impugned order passed under section 156 (3) of Cr.P.C. directing the registration of F.I.R. on the basis of the complainant’s application, falls within any of the categories illustrated in Bhajan Lal’s case.
2. In case the answer to 1st issue is in affirmative, whether this court can exercise its inherent or revisional jurisdiction at the instance of a proposed accused challenging an order passed under section 156(3) of Cr.P.C. for registration of criminal cases and for investigation thereof.
3. In case the answer to 1st issue is affirmative and the answer of 2nd issue in negative, whether this court can suo motu exercise its inherent or revisional jurisdiction to quash the impugned order in the light of peculiar factual history of the controversy.

Issue no.1 

Power under section 156(3)

The High Court has reiterated the holdings of the Supreme Court in the case of Priyanka Srivastava’s case. The Supreme Court in the case while dealing with the registering of FIR under 156(3) against accused who were protected for action taken in good faith under s. 32 of SARFAESIcAct, held as follows:

The Supreme Court held that order under s. 156(3) not to be made without any application of mind. The court further cited Anil Kumar v. M.K. Aiyappal whereby the supreme court held that mere statement that the magistrate had gone through the materials available on record is not enough but must apply judicial mind and the reason for such order must be reflected in the order itself though a detailed view is not necessary.  The order must contain what weighed the magistrate to give such an order. The Supreme Court then held that proceedings under s 156(3) are before court of law and are different from steps under S. 154 before the police. The magistrate must not allow the pervert litigation causing abuse of law. 

But the above judgement was delivered after the order was made. But the court felt it relevant to discuss the case in the light of the counter affidavit filed by OP 2.

Further regarding the sanction, the court was of the view that it’s aptly clear that the applicants reached the spot for the purpose of removing illegal constructions, which was undoubtfully in the discharge of their official duties. The High Court, also discussed Anil Kumar’s case whereby the Supreme Court rejected the argument that the requirement of sanction is only procedural and held that no order be made under s. 156(3) without prior sanction of the appropriate authority. The High Court has held that in the light of the above cases the magistrate should not have taken judicial note under 156(3) without sanction. 

So, for the first part of the issue 1 i.e. regarding the requirement of sanction, the court has answered in affirmative that the sanction was necessary and would have been obtained. Then the court has turned to the second limb of issue no. 1 that whether the FIR is liable to be quashed in view of the Bhajan lal’s case.

The Court has discussed the Bhajan lal’s case whereby the Supreme Court has given an inexhaustive list of categories upon falling on which the High Court may quash an fir under application under S.482 or A. 226 of the Constitution. The SC has given the following seven categories:

1. The allegations made in fir, even prima facie and taken in their entirety won’t constitute an offence or case against the accused.
2. Where the allegations in the FIR don’t constitute a cognisable offence, justifying investigation by the police under S. 156(1).
3. Where the uncontroverted allegations in the fir or complaint don’t disclose the commission of an offence.
4. Where the facts of the complaint does not constitute a cognisable offence but a non cognisable offence.
5. Where the allegations are so unjust and so improbable that no prudent person can reach to a conclusion that the offence could have been committed.
6. Where there is an express legal bar on instituting such proceedings.
7. Where the criminal proceedings are done with mala fide intention and ulterior motive.

Further the SC has made a notice of caution that quashing of criminal proceedings be done only in the rarest of the rare cases.

After discussing the above case the High Court has moved forward to determine whether the case in hand fits in any of the seven grounds and the court found the answer in affirmative. The Court found that except category no. 4 all the others are available in the present case. At the relevant point of time, when the offence is alleged to have been committed, the Chief minister of UP was Mayavati. So, it would be too absurd and unbelievable to say that an SDM and a Tahsildar had used abusive words, in the daylight, against their own chief minister, who is capable of ruining their entire career. The High Court was of the view that except by assuming that the applicants are lunatics, there is no sound reason as to believe that they had done so. So the case is squarely fit under category 5 i.e. no prudent person would have reached such a conclusion. Further, the absence of sanction is a legal bar to initiate such proceedings and hence falls under category 6. Also, the High Court was of the view that it was clear that the said FIR was the result of allegations made with provocation of Mr. Dhara Singh, who has an ulterior motive consequently the case also falls under category 7.

Hence the issue no. 1 was answered in affirmative in its entirety. The impugned order is vitiated for the non compliance of S. 197 and the FIR falls within the categories enumerated in Bhajan lal’s case.

Issue No. 2

Following the judgement of the SC in the case of Father Thomas vs. State of U.P, where it was held that the order under S. 156(3) will not be subject to challenge in a criminal revision under S. 482 at the instance of proposed accused, Issue no. 2 was answered in negative. The single judge was of the view that according to the settled practices of the judiciary it is not good for a single judge of a HC to declare the judgement of a full bench of the SC per incuriam and hence the single judge left the issue unanswered and supposed it to be in negative.

Issue No. 3

Since issue no.2 was answered in negative, now the issue is whether the High Court can exercise its power under  S. 482 of criminal revision under S. 397 read with S. 401. 

The High Court has found that the power of the High Court to take  suo moto action is well established and cleared by a series of judgement of the Apex(Cricket Association of Bengal vs. State of West Bengal, Nadir Khan v. State (The Delhi Administration), Eknath Shankarrao Mukkawar vs. State of Maharashtra, Municipal Corporation of Delhi Vs. Girdharilal Sapuru and Janata Dal vs. H.S. Chowdhary and ors.). It is the duty of the High Court to interfere and take suo moto action when it finds an abuse of law. Also, legal bar under S. 401(4) is only for the parties and not for the High Court (Municipal Corporation of Delhi Vs. Girdharilal Sapuru).  Further the High Court, based on various judgements of the Apex court, summarised on the issue of suo moto exercise of power observed that:

1. The High Court has the power of general superintendence over its subordinate courts both on administrative and judicial counts. On the administrative side it is general superintendence and on the judicial side it is the revision power or the power of revision.
2. The High Court keeps a constant vigil on the actions of the subordinate courts and is bound to take suo moto action when it finds a flagrant  abuse of law.
3. S. 401 preserves, expressly, the power of the High Court to call records from the subordinate courts, without the need of intervention of any outside agency.
4. S. 401 confers a paternal or supervisory jurisdiction on superior criminal courts, in order to avoid miscarriage of law and injustice.
5. The High Court posses undoubtful jurisdiction to suo moto criminal revision in appropriate cases.

Further the High Court held that even an interlocutory order is a good subject matter of revision when such order is made without jurisdiction. The High Court discussed various cases decided by the Apex court supporting the above proposition(Bhima Naik and Ors. vs State). An order is no order when it is passed without jurisdiction. When an interlocutory order is challenged under revision for want of jurisdiction, it is the jurisdiction that is being challenged and the saving clause of interlocutory orders from revision can’t come to its rescue. The order of the ACJM in the absence of sanction is without jurisdiction.

At this junction the High Court took notice of the caution of the Supreme Court that power under S. 482 has to be used in the rarest of the rare cases. The High Court has found such circumstances in the present case. The High Court was of the view that in the present case it clearly appears that the complaint was filed at the instance Dhara Singh and S.C. Bose(Additional District and Sessions Judge, Allahabad) against the public servants who were acting bonafidely in furtherance of the order of the Supreme Court to safeguard ponds and other ecological places. If the public servants acting in a bona fide manner are not protected from abuse of law, it would give a very bad message to the society at large. And hence the High Court was pleased to exercise its suo moto jurisdiction under S. 397 read with S. 401 and under S. 482 and quashed the order passed by the ACJM under S. 156(3) to register FIR.

The High Court refrained itself from taking any administrative action against S.C. Bose for two reasons. Firstly because no notice was served to him on that behalf and secondly taking administrative action is a subject matter of civil miscellaneous writ petition.

Conclusion:

There is no doubt that the present judgement is a highly appreciable one. The Hon’ble single judge has taken note of both his powers and limitations in a balanced manner. It appears that the judge finds himself restricted in view of the supreme court’s judgement , in case of issue no. 2. It was a difficult situation where he was either to disobey the existing practice of adhering to the higher courts views or to leave the party who wants a remedy, without a remedy. But he found a third way that is finding the jurisdiction which permits him to give the remedy, making the maxim ‘Where there is a right there is a remedy,’ true again. But the issue of concern in this case is the time taken to deliver the judgement. The cause of action dates back to 2002 and the judgement delivered was in 2019. Cases like this where public authorities are involved, especially in criminal offences, have to be delivered in a speedy manner. It is true that everyone is equal before law but in the case of public authorities, it is not the person but the public at large who are involved. Let it be understood with an example. If an allegation is made against a public authority in discharge of its official functions and if the allegation is found true, the person will be dismissed from his office. And suppose the case went on for say 20 years, as it was in the present case and in many other cases, and finally the person is convicted. What needs to be noticed here is that dismissing a person signifies that the person is unfit for such office due to such an act. Here the act was committed 20 years ago and the person is dismissed now. That means a person who is unfit for an office has served for 20 years in that office. It sounds too bad. Also,  the public are always in touch with public authorities. It seems imaginary to assume a situation where a person approaches a public authority with a complaint, if a similar complaint is pending against such authority itself in the court. So this issue requires more attention.

So, the point of appreciation in the case is the order and the issue to be discussed at length is the time taken to give such an order.

References

https://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do

This Case Analysis is done by Avula Veerabhadra Reddy, a second year student of Central University of South Bihar and an intern at legal vidhiya