Puttan vs State of U.P. and Others

Brijesh Kumar Srivastava-II, J.—This petition under Section 482 Cr.P.C. has been filed for quashing of summoning order dated 20.09.2012 passed by Chief Judicial Magistrate, Bahraich, on the basis of charge-sheet No. 97 of 2011 dated 03.08.2011 in Case No. 3778 of 2012 [State of U.P. Versus Puttan] arising out of Case Crime No. 500 of 2011, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Kaisherganj, District Bahraich.

In nutshell the case of applicant-petitioner is that a first information report was lodged on 04.05.2011 leveling baseless charge against him by the opposite party No. 2 under the order of the learned Magistrate, which was registered vide Case Crime No. 500 of 2011, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Kaiserganj, District Bahraich.

Thereafter applicant-petitioner filed Writ Petition No. 4969 (MB) of 2011 [Puttan v. State of U.P. and others] challenging the first information report dated 04.05.2011, which was dismissed vide order dated 26.05.2011. Against the order dated 26.05.2011 applicant-petitioner approached the Hon''ble Apex Court by means of Special Leave to Appeal (Crl) No. 4624 of 2011 challenging the judgment and order dated 26.05.2011 passed in Writ Petition No. 4969 (MB) of 2011 wherein the Hon''ble Apex Court observed as under:

"Issue notice, returnable within four weeks.

In the meantime, in case the petitioner is arrested, he shall be released on bail to the satisfaction of the Arresting Officer."

Thereafter charge sheet No. 97 of 2011 was filed in the matter and the SLP preferred by the applicant-petitioner was dismissed as infructuous.

Counter affidavit has been filed by the State in which it has been asserted that the tehsildar, tehsil Mahsi had submitted a report showing that the applicant is Dhobi by caste according to his service book but it is not clear whether it is Hindu Dhobi or Muslim. His original records are misplaced and no specific finding is available on record in absence of original document.

It has also been stated therein that the service record indicates that the applicant is Muslim Dhobi and as per assertions Muslim Dhobi comes within the category of Other Backward Class and the Hindu Dhobi comes within the category of Scheduled Caste and in the training college records Hindu Dhobi finds place and as per para-8 of the affidavit filed by the then District Magistrate, Bahraich prima-facie fraud is reflected.

Counter affidavit was also filed by the opposite party No. 2 stating therein that the applicant-Puttan is in fact by caste Muslim Dhobi but he showed himself as Hindu Dhobi and completed the Lekhpal training in Lekhpal Training School and obtained the service. The Tehsildar Mahsi, Sri Satrohan Lal, was also the Principal of the Lekhpal Training School and has stated that from the record available Puttan showing himself Hindu Dhobi has completed the Lekhpal training and thereafter showing himself as Muslim Dhobi doing the service and in the Pariwar Register, the changes have been made from time to time and the Tehsildar, tehsil Mahsi has submitted his report dated 01.08.2007. The copy of the said report has been brought on record as Annexure CA-1 to the counter affidavit. It has also been stated therein that in the Pariwar Register for the year 1982-83 Sri Puttan the petitioner has been shown as Muslim Dhobi but in another Pariwar Register which was issued on 25.08.1986 Puttan has been shown as Hindu and further in the entry of Family Register 1982, the petitioner has been shown as Hindu and there is a note on family register earlier that there was entry of Muslim but thereafter it was changed to Hindu.

It has also been stated that the Investigating Officer recorded the statement of so many witnesses including the statement of Sri Prakash Mishra, Registrar Kanoongo Mahsi, Satrohan Lal, Tehsildar, Bahraich, Krishna Kumar Mishra, Chowkidar, Lekhpal Training School, Gonda and Ramashish, Registrar Kanoongo Lekhpal Training School, Gonda, Shiv Prakash Pandey, Principal, Lekhpal Training School, Gonda and thereafter filed Paper-III by which it is quite clear that the petitioner showing him as Hindu Dhobi showing himself a scheduled caste completed his training in Lekhpal Training School taking the benefit of scheduled caste candidate and obtained service as Lekhpal, otherwise, he could never be eligible for getting appointment to the post of Lekhpal and after obtaining training, he is trying to show Muslim Dhobi. Copies of the statements of the aforesaid officers/officials are on record as Annexures No. 4 to 9 to the counter affidavit.

It is further stated that the petitioner obtained training in Lekhpal from Lekhpal Training School, showing himself as Hindu Dhobi which belongs to scheduled caste, which is clear from perusal of certificate dated 3.5.1997 issued by the Principal Lekhpal Training School, Gonda and on the basis of training, he obtained appointment and thereafter further showing himself as Muslim Dhobi and alone showing Muslim Dhobi, the petitioner could never be eligible for getting appointment to the post of Lekhpal.

Rejoinder affidavit has been filed by the applicant-petitioner in which he has stated that it is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law.

Heard learned counsel for the applicant-petitioner, learned Additional Government Advocate and learned counsel appearing for the informant-opposite party No. 2 and perused the record available on record.

The submission of learned counsel for the applicant-petitioner is that in fact opposite party No. 2 is the stranger to the proceedings and he cannot be said to be an aggrieved person and therefore, he had no right to move any application at all.

Emphasis has been drawn towards Ayaaubkhan Noorkhan Pathan Vs. The State of Maharashtra and Others, in which it was held that the petitioner must be person who has suffered or suffers from legal injury. Relevant para is quoted hereunder.

Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the Appellant that there has been a breach of statutory duty on the part of the Authorities. Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the Appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same.

Submission of learned counsel for the opposite party No. 2 is that the aforesaid pronouncement of the Hon''ble Apex Court has got no application since the criminal law can be set in motion by any stranger and since it was a case of reflected fraud, therefore, the criminal proceedings are maintainable and since the first information report has been lodged and the allegations are there, therefore, all the pleas can be taken at the appropriate level and should be adjudicated upon by the competent forum.

Learned Additional Government Advocate also submitted that it is clear cut case of fraud and it is not a case where quashment of the charge-sheet or proceedings should be ordered.

The specific assertions of the learned counsel for the opposite party No. 2 is that since prima-facie fraud is reflected the correct position should emerge only after appreciation of the evidence by the competent court of law.

It appears to this Court that the Hon''ble Apex Court in the case of P.S. Meherhomji Vs. K.T. Vijay Kumar, has held as under:

In the case of Dhanalakshmi Vs. R. Prasanna Kumar and Others, , a three Judge Bench of this Court held:

"3. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers Under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court." 19. In the case of Smt. Chand Dhawan Vs. Jawahar Lal and others, , this Court, while considering the power of the High Court Under Section 482, Code of Criminal Procedure and quashing the criminal proceedings, observed that when the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage of the Magistrate taking cognizance of the offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of court or not.

Indisputably, judicial process should not be an instrument of oppression or needless harassment. The court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of private complainant as vendetta to harass the persons needlessly.

It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court and to quash the proceeding instituted on complaint but such power could be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of power Under Section 482.

The above pronouncement clearly reflects that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

It is pertinent to note that the present criminal misc. petition No. 5342 of 2012 (under Section 482 Cr.P.C.) has been filed by applicant-Puttan against the State of U.P. and opposite party No. 2 (Shankar Dayal Shukla) with the following reliefs:

"Wherefore it is most respectfully prayed that this Hon''ble Court may graciously be pleased to quash the summoning order, under section 419, 420, 467, 468, 471, Indian Penal Code, passed by Chief Judicial Magistrate Bahraich dated 04.05.2011 on the basis of Charge Sheet No. 97 of 2011 dated 03.08.2011 filed by investigating officer against the applicant in respect to case/crime No. 500 of 2011 Police Station Kaisherganj District Bahraich bearing case No. 3778 of 2012 (State of U.P. Versus Puttan) and the Charge sheet No. 97 of 2011 dated 03.08.2011 filed by investigating officer against the applicant.

It is further prayed that the Hon''ble Court may kindly pleased to keep the proceeding of case No. 3778 of 2012 pending in the court of Chief Judicial Magistrate Bahraich (State of U.P. Versus Puttan) against the applicant in abeyance during pendency of the case."

Applicant Puttan has himself mentioned in para-3 of his petition that he being unsuccessful in getting interim relief in his favour regarding his arrest, approached Hon''ble Apex Court and got interim order passed by the Hon''ble Apex Court in his favour. The copy of the interim order passed by the Hon''ble Apex Court has been annexed as Annexure No. 4 to the petition.

The applicant has filed copy of the order dated 30.11.2012 passed by the Hon''ble Apex Court as Annexure No. 9 to the rejoinder affidavit, which is being reproduced herein below:

"This petition is directed against order dated 26.05.2011 by which the learned Single Judge of the Allahabad High Court dismissed the petition filed by the petitioner under Section 482 Cr.P.C.

Learned counsel for the petitioner states that during the pendency of the special leave petition, the police has filed charge sheet in the concerned court.

In view of the above development, the special leave petition is disposed of as infructuous."

It appears that initially a petition was filed in the High Court which was dismissed by the Division Bench and presumption may be there that the FIR relating to case crime No. 500/2011 under Sections 419, 420, 467, 468, 471 I.P.C., police station Kaisherganj, District Bahraich must have been challenged. That order was passed on 26.05.2011 and against it the earlier mentioned SLP was preferred in the Hon''ble apex Court which was finally dismissed as infructuous on the ground mentioned above.

Present petition seems to have been filed on 05.12.2012. The record indicates that FIR as case crime No. 500 of 2011 was lodged on 04.05.2011 on the orders of the learned Magistrate. The impugned charge sheet was filed on 20.09.2012 and applicant Puttan was summoned under Sections 419, 420, 467, 468 and 471 IPC, fixing 15.10.2012. In the relief clause only challenge has been made to the order dated 04.05.2011 and the charge sheet also. When the Hon''ble Supreme Court finally heard the matter but dismissed the petition as infructuous since the charge sheet has been preferred, no order otherwise was passed by the Hon''ble apex Court. 04.05.2011 happens to be the date of the FIR. It appears to the Court that again an effort has been made by the petitioner to challenge the order passed on the basis of charge sheet though no specific date has been mentioned. This fact has not been disputed that the petition filed by applicant Puttan in the High Court was dismissed. This Court is of the view that the present applicant can raise all the pleas at the appropriate level, before the competent court of law and the criminal proceedings can be initiated against any person at any stage only on the basis of appreciation of evidence available on record and therefore quashment of the charge-sheet or the proceedings will not be justified in this circumstances. The issue is not very relevant whether the opposite party No. 2-Shankar Dayal Shukla will be a person aggrieved or not. If the assertions made by opposite party No. 2 are correct then it is a serious matter and therefore proceedings were definitely maintainable before the competent court of law. This Court is of the view that it is open to the applicant-petitioner to take his defence and to prove his contention through documentary evidence.

After giving thoughtful consideration in the matter, this Court is of the view that no case for quashment of the criminal proceedings in exercise of powers conferred under Section 482 of the Code of Criminal Procedure is made out.

For the facts and reasons stated hereinabove, I find no merit in the case and accordingly, the petition is dismissed.