Devi Sahai and Others vs State of U.P. and Others

Khem Karan, J.—This appli-cation u/s 482 of Cr.P.C. has been filed for quashing the F.I.R. (Annexure-1), lodged by one Sri Vipin Bihari on 22.6.2000 at 3.45 with police station Ramkot of district Sitapur, against the applicants in which it has been alleged that on 17.6.2000 at 5.30 p.m. while the informant was near a polling station established for purpose of holding Panchayat Election ; that these accused came and started abusing him and when the informant moved to his house, the accused started pelting stones at the house. Vipin Bihari and the accused Devi Sahai fired country made pistol, with a view to kill him. It was also said in this F.I.R. that the informant ran to his rescue inside his house and in the meantime many villagers such as Prem Nath, Patari and Dadheej reached the spot and thereupon, the accused fled away, abusing and threatening the informant. The averments made in the petition are that F.I.R. is totally false and concocted and this has been lodged to wreck vengeance on account of election enmity.

The learned Counsel for the State has raised a preliminary objection as against the maintainability of this application u/s 482 of Cr.P.C. His objection is based on a Division Bench judgment of this Court in Puttan Singh v. State of U.P. (XXIV) 1987 ACC 268, which was subsequently endorsed by seven Judges Bench of this Court in Ram Lal Yadav v. State of U.P. (26) 1989 ACC 181, and dictum in Ram Lal Yadav''s case was followed in Dalbeer Singh and Ors. v. S.H.O. Bhozpur, District Ghaziabad 1999 (1) JIC 883 (All); Merinal Kant Mallik and Ors. v. State of U.P. and Anr. 1993 JIC 151 , Ashok Kumar Singh and Others Vs. The State of U.P. and Others, , Bhopal and Ors. v. State of U.P. and Ors. (XXXIV) 1997 ACC 371. His contention is that petition u/s 482 of Cr.P.C. for quashing the F.I.R. during the course of the investigation is not maintainable. The contention of Sri Abid Ali, the learned Counsel for the Petitioners is that the law laid down in Ram Lal Yadav''s case (supra) is no longer a good law in view of the subsequent decisions of the Apex Court in State of Haryana and Ors. v. Bhajan Lal and Ors. (28) 1991 ACC 111 (SC); Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (XXXVI)1998 ACC 20 (SC); Mary Angel and Ors. v. State of Tamil Nadu (39)1999 ACC 184 (SC) ;G. Sagar Suri and Anr. v. State of U.P. and Ors. (XL) 2000 ACC 501 (SC) ; Sunil Kumar v. Escorts Yamaha Motors Ltd. and Ors. (40) 2000 ACC 137 (SC). The learned Counsel for the Petitioners has also referred to a decision, dated 11.5.2000, given by a single learned Judge of this Court, in Criminal Misc. Case No. 450 of 2000 Ram Kumari and Ors. v. State of U.P.According to him, the learned Judge has ruled that since seven Judges decision in Ram Lal Yadav''s case has been referred to a larger Bench of nine Judges and since Hon''ble the Apex Court has categorically said in various decisions that the High Court can in exercise of its inherent powers u/s 482 of the Code of Criminal Procedure quash F.I.R. or stay the arrest pending the investigation. So it cannot be said that such a petition for quashing an F.I.R. is not maintainable u/s 482 of the Code.

I have heard Sri Abid Ali, the learned Counsel for the Petitioners and Sri Janardan Singh the learned Counsel for the State, on this preliminary point and have also heard them on merits of this petition.

I do not propose to go at length. The only point that crops up for consideration is whether the law laid down in Ram Lal Yadav''s case, on the point that a petition for quashing the F.I.R. or for staying the arrest during the investigation is not maintainable u/s 482 of the Code, still holds the field or stands superseded by any decision of the Apex Court.

Earlier to the decision in Ram Lal Yadav''s case, there was a Division Bench decision of this Court in Puttan Singh v. State of U.P. 1987 (24) ACC 268, where the view taken was that the police had unfettered power of investigation and the Court had no powers u/s 482 of Cr.P.C. to interfere with the same and the functions of the Courts would start only after submissions of the result of the investigation. A Full Bench of this Court however took slightly a different view in Prashant Gaur v. State of U.P. (25) 1988 ACC 276, and ruled:

(1) Investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government. It is only in the rarest of rare cases, and that too, when it is found by the Court that the F.I.R. and the investigation over a reasonable length of time, do not disclose the commission of a cognizable offence, or any offence of any kind, that the High Court may u/s 482 of the Code may interfere with the investigation.

(2) u/s 482 of the Code, the High Court may not direct the stay of arrest, during the investigation, except for a limited period.

On a reference by a learned single Judge, a seven Judges Bench was constituted to resolve that controversy that arose on account of the aforesaid two decisions, one in Puttan Singh''s case and the other in Prashant Gaur''s case. This larger Bench of seven Judges, after referring to the law laid down by the Privy Council in the case of AIR 1945 18 (Privy Council) , and the Apex Court in State of West Bengal v. S. N. Basak AIR 1968 SC 447 ; S.N. Sharma Vs. Bipen Kumar Tiwari and Others, ; Iehan Singh v. Delhi Administration AIR 1974 SC 1116; Kurukshetra University v. State of Haryana, (XV)1978 ACC 72 (SC); State of Bihar v. J.A.C. Saidanna (17)1980 ACC 279 (SC); State of West Bengal v. Sampat Lal, (XXII) 1985 ACC 206 (SC) ; State of West Bengal and Others Vs. Swapan Kumar Guha and Others, and R.P. Kapur Vs. The State of Punjab, , ruled:

(1) The High Court has no inherent power u/s 482 of Cr.P.C. to interfere with the investigation by the police.

(2) The High Court has also no inherent power u/s 482 of Cr.P.C. to stay the arrest of an accused, during the investigation.

(3) The Full Bench in the case of Prashant Gaur''s case does not lay down the correct law and is overruled.

(4) If the F.I.R. does not disclose the commission of an offence the investigation on the basis of such a report is liable to be quashed under Article 226 of the Constitution and not in the exercise of the inherent power of the High Court u/s 482 of Cr. P.C.

(5) It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the inherent power.

Let us see whether the proposition of law as enunciated in Ram Lal Yadav''s case (supra), still holds the field or is no longer a good law, in view of the decision of the Apex Court, cited by Sri Abid Ali. The first case cited by Sri Abid Ali is State of Haryana and Ors. v. Bhajan Lal and Ors. (28) 1991 ACC 111 (SC). It appears that on the complaint presented by Dharam Pal, S.H.O. registered one F.I.R. against Bhajan Lal under Sections 161 and 165 of I.P.C. and u/s 5 (2) of the Prevention of Corruption Act and the investigation commenced. Bhajan Lal filed a petition under Articles 226 and 227 of the Constitution of India, seeking issuance of writ or certiorari quashing the F.I.R. and also for a writ of prohibition restraining the State of Haryana and Ors. from further proceeding with the investigation. The High Court of Punjab and Haryana granted ex-parte stay which was subsequently made absolute. Finally, the Hon''ble High Court of Punjab and Haryana came to the conclusion that the allegation did not constitute a cognizable offence of commencing lawful investigation and so granted relief. It was in these circumstances that the matter went to the Apex Court. The Apex Court said that the following were some of the illustrations where the High Court could, in exercise of its extraordinary powers under Article 226 or the inherent powers under Article 482 of Cr.P.C., quash the F.I.R. or pass suitable orders to prevent the abuse of the process of any Court or otherwise to secure the ends of justice:

(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 u/s 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 F.I.R. 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 F.I.R. do not constitute a cognizable offence but constituted only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the F.I.R. 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.

(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.

It is clear from the facts of the case that the point, whether an F.I.R. could be quashed or arrest could be stayed u/s 482 of the Code, was neither raised nor decided. Moreover from the illustrations noted above, it is again clear that their Lordships were dealing with the F.I.R. and criminal proceedings pending in a Court, and so were referring to extra-ordinary powers under Article 226 and inherent powers u/s 482 of the Code.

In Pepsi Foods Ltd. (supra), a criminal complaint alleging commission of offence u/s 7/16 of Food Adulteration Act, 1954, was filed before a Magistrate. After recording preliminary evidence, the Magistrate passed orders, summoning Pepsi Foods Ltd. and Ors. and thereupon they filed a writ petition under Article 226 of the Constitution before this Court, seeking writ of prohibition or a writ, order or direction in the nature of prohibition, prohibiting the Special Judicial Magistrate to proceed with Criminal Case No. 699 of 1994 and for a writ for quashing the proceedings of the criminal case. This Court refused to entertain the writ petition on the ground that the Petitioners accused could move the learned Magistrate for their discharge u/s 245 of Cr.P.C. It was also said by this Court that it was not possible at that stage to say that the allegations in the complaint were so absurd and inherently improbable on the basis of which no prudent man could ever reach a just conclusion that there existed no sufficient ground for proceeding against the accused. It was in these circumstances that the matter reached the Apex Court. After referring to State of Haryana v. Bhajan Lal, the Apex Court said:

Under Article 227 of the Constitution of India the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers wide powers on the High Court to prevent the abuse of the process of law, by the inferior courts and to see that the administration of justice remains clean and pure. The powers conferred on the High Court under Articles 226 and 227 of the Constitution and u/s 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226.............

Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the Appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227, or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code for revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts..............

It was also said in para 29:

The Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court u/s 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.........

It is clear that the questions whether F.I.R. of cognizable offence could be quashed or investigation could be interfered with or arrest of an accused pending investigation could be stayed, in exercise of the powers u/s 482 of the Code were neither raised nor decided in Pepsi Foods Ltd. That case arose out of a criminal proceedings instituted on the basis of a criminal complaint.

In Mary Angel''s case (supra) after a preliminary investigation, the police had submitted a charge-sheet in the Court against Appellants A-1 to A-6 under Sections 498A, 406, 420, 315 of I.P.C. and u/s 3/4 of Dowry Prohibition Act, 1961. The case was committed to the Court of Sessions. It was at that stage that some of the accused filed an application u/s 227 of Cr.P.C. for their discharge and the same was allowed. Against that order complainant filed a Criminal Revision No. 442 of 1999 before the High Court of Madras and the High Court allowed the same vide its order dated 9.7.1993 and set aside the order of discharge. The learned Session Judge framed charges against accused Nos. 3 to 6. The accused filed a criminal revision before the High Court against framing of the charges, the High Court of Madras dismissed the same and imposed costs of Rs. 10,000 against each of the Appellants, to be paid to the informant (complainant). It was this order of the High Court which was challenged before the Apex Court in the said case. The Apex Court held:

Section 482, Cr.P.C. stands independently from the other provisions of the Code and it expressly saves the inherent powers of the High Court. Therefore, to prevent abuse of the process of the Court or otherwise to secure the ends of justice, the High Court is empowered to pass ''such order'' which may include order to pay costs to the informant (complainant) and the language of the section does not, in terms, place any fetter. This power is not conditioned or controlled by any other section nor is curtailed by any provisions which empower the Court to award costs.

The appeal was dismissed by the Apex Court holding that the High Court had power to impose costs in appropriate cases under Article 482 of the Code. The question like one before me was not before the Apex Court in the said case. The main discussion was confined to the question whether the High Court could in exercise of its power u/s 482 of the Code impose a cost on applicant, Ram Lal Yadav''s case was not referred to nor war necessary in the facts and circumstances of the case.

In Sunil Kumar''s case (supra), the order of Delhi High Court, quashing the F.I.R. was under challenge before the Apex Court. Relying on Bhajan Lal''s case (supra), the learned Counsel for the Appellants contended that since the assertions made in the F.I.R. constituted a cognizable offence and so the High Court should not have quashed the same u/s 482 of the Code. The Apex Court refused to interfere with the order of the High Court on the facts and circumstances of the case and especially in view of the fact that F.I.R. had been lodged to pre-empt the filing of the criminal complaint, against the informant u/s 138 of the Negotiable Instruments Act. This much is clear that it was not the question before the Apex Court whether F.I.R. could be quashed in exercise of the powers u/s 482 of the Code. No doubt, on the facts and circumstances of the case, the Apex Court refused to interfere with the order of the High Court by which it quashed the F.I.R. in exercise of its inherent power.

G. Sagar Suri''s case (supra) had the following facts: The accused had filed an application u/s 482 of the Code before the High Court for quashing the pending criminal proceedings. After investigation the police had submitted a charge-sheet in the Court of Chief Judicial Magistrate. The High Court rejected the application u/s 482 of Cr.P.C. and against that order the accused had filed the said appeal before the Apex Court. It has been held that the jurisdiction u/s 482 of the Code has to be exercised with a great care and the High Court has to see whether the criminal proceedings pending in a subordinate court amount to abuse of the process of the Court and if it finds that the same are nothing but the abuse of the process of the Court it can quash the proceedings u/s 482 of Cr.P.C. Whether investigation could be interfered with u/s 482 of Cr.P.C. was not under discussion before the Apex Court in the said case.

But then the contention of Sri Abid Ali is that the observations of the Apex Court in Bhajan Lal''s and Pepsi Foods Limited''s case to the effect that the inherent power of the High Court have no limit or the High Court can in exercise of its powers of superintendence under Article 227 of the Constitution or in exercise of its inherent powers u/s 482 of the Code quash the F.I.R. or a criminal proceedings in certain cases, even if taken to be obiter dicta has a binding force under Article 141 of the Constitution of India, and, therefore, should be taken to have ruled contrary to the law laid down in Ram Lal Yadav''s case. He has cited in L. Deep Chandra v. Lala Raghuraj AIR 1997 All 370 (FB); C.N. Rudramurthy Vs. K. Barkathulla Khan and Others, and Commissioner of Income Tax, Hyderabad-deccan Vs. Vazir Sultan and Sons, . It is true that even an obiter dicta of the Supreme Court are entitled to a considerable weight and is binding on the High Court, but as observed by Full Bench in L. Deep Chandra''s case the observations made by the Supreme Court must not be stray observation but must be considered opinion of the Apex Court.

In Bhajan Lal''s case and the observations made therein as relied on by Sri Abid Ali, were considered in Dalbir Singh and Ors. v. S.H.O., Bhozpur (supra) ; Merinal Kant Mallik v. State of U.P. (supra); Ram Ratan and Anr. v. State of U.P. and Anr. by the learned single Judge of this Court but it was said that the observations could not be construed so as to holding that power u/s 482 of the Code could be exercised to quash the F.I.R. or to stay the arrest of the accused pending the investigation. I respectfully agree with the view taken by this Court in these cases. The reason is that the point under discussion was neither posed nor decided by the Apex Court in any of the cases cited by Sri Abid Ali. Had the question been raised directly or indirectly or had Ram Lal Yadav''s case been referred to and distinguished or overruled directly or indirectly, the matter would have been otherwise. Seven Judges'' view in Ram Lal Yadav''s case cannot be said to be overruled or superseded on the basis of the said observations of the Apex Court in Bhajan Lal''s case or in other cases relied on by the learned Counsel for the Petitioners.

In an unreported decision dated 11.5.2000 rendered in Criminal Misc. Case No. 450 of 2000, Ram Kumar and Ors. v. State of U.P. and Ors., a learned single Judge of this Court, after referring to Smt. Jamuna v. State of U.P. (XXXIII)1996 ACC 699, and Mohd. Nazim v. State of U.P. 1998 (XXXVI) ACC 621 , and three Supreme Court cases, namely, State of U.P. Vs. R.K. Srivastava and Another, ; State of Haryana v. Bhajan Lal (28) 1991 ACC 111, and M/s. Pepsi Foods Ltd. and Anr. v. Spl. Judicial Magistrate and Ors. (36) 1998 ACC 20 (SC), and after considering the fact that Ram Lal Yadav''s case has already been referred to nine Judges Bench took the view that a petition for quashing the F.I.R. was maintainable u/s 482 of the Code. With due respect to the learned Judge, I am unable to agree with him, on the point that Ram Lal Yadav''s case does not hold the field, for the reasons stated by him. Perhaps, the attention of the learned Judge was not drawn to the single Judge''s cases relied on by Sri Janardan Singh and referred to above and also to the view taken by Division Bench of this Court in Bhopal and Ors. v. State of U.P. (34) 1997 ACC 371.

Shri Abid Ali had argued that the construction of the expression "otherwise to secure the ends of justice" appearing in Section 482 of the Code, as put by the learned Judges in Puttan Singh''s case and endorsed in Ram Lal Yadav''s case does, in no way, advance the cause, for which the inherent powers of the High Court, have been preserved and the scope of this expression cannot be cut down simply because of the powers under Article 226 of the Constitution of India. He goes on to argue that the Hon''ble Judges who decided Puttan Singh''s case accepted that High Court could interfere with the investigation or stay arrest etc., but under extraordinary power under Article 226 and not u/s 482 of the Code. He says that by accepting this, the Court demolished its own reasoning that the police had unfettered powers to investigate and the functions of the Court would start only when the case is instituted. Sri Abid Ali goes to the extent to argue that had the question arisen, before coming into force of the Constitution of India, as regards the inherent powers of the Court (under corresponding provision of the old Code) in the context of quashing of F.I.R. or stay of arrest, whether the Court would have construed the said expression in the same way as it did in Puttan Singh''s case or Ram Lal Yadav''s case. He says that any narrow interpretation of the said expression appearing in Section 482 of the Code may defeat the very purpose, for which inherent powers of this Court have been saved. According to him, the expression "otherwise to secure the ends of justice" should be so interpreted as to enable the High Court to cover any injustice, resulting from any act or omission of any authority or Court, under the Code, right from the commission of the crime to the final adjudication by the Court. He contends that the question whether the inherent power u/s 482 of the Code can be exercised to quash F.I.R. or stay arrest, during the investigation, should not be confused with the question as to when and in what circumstances, such a power is to be exercised.

The arguments of Sri Abid Ali, though attractive and worth consideration but since the matter stands concluded by Ram Lal Yadav''s case and since a larger Bench of nine Hon''ble Judges, has to reconsider the correctness or otherwise of the relation in Ram Lal Yadav''s case, so I refrain from dealing with these arguments.

The net result is that as on today, the law laid down in Ram Lal Yadav''s case holds the field and it is difficult to say, on the basis of certain observations of the Apex Court, in the cases cited by Sri Abid Ali, that the view taken by Hon''ble seven Judges in the said case, has been disapproved or over-ruled or modified by the Apex Court. The ratio of Ram Lal Yadav''s case is based on various pronounce-ments of the Apex Court and so, unless the point is expressly raised and decided otherwise by Hon''ble Supreme Court or by Anr. larger Bench of this Court, it will not be possible to say that the law laid down in Ram Lal Yadav''s case is no longer a good law.

So, this petition u/s 482 of the Code, for quashing F.I.R. and for stay of arrest, pending investigation, is not maintainable. Sri Abid Ali had very fairly conceded that no criminal proceeding is pending in any Court. Since the petition is being dismissed on the ground that it is not maintainable, so I refrain from expressing any opinion on the point whether case for interference with F.I.R. or investigation is made out or not.

The petition u/s 482 of the Code is accordingly dismissed. No order as to cost.