Court No.- 45
Case :- Criminal Misc. Writ Petition No. - 14479 of 2006
Petitioner :- Brijpal And Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Gaurav Kakkar
Counsel for Respondent :- Govt. Advocate,Diwakar Rai,Kamal Kishore Mishra
Hon'ble Siddharth,J.
1. Heard Sri Gaurav Kakkar learned counsel for the petitioner and learned A.G.A. for the State respondent no. 1. No one appears on behalf of the respondent no. 2.
2. This writ petition has been filed praying for quashing of the order dated 07.12.2005 passed by ACJM, Court No. 2, Bijnor in Case No. 534 of 2005, Rajesh Kumar vs. Brij Pal & Another, under Sections 452, 307, 336, 323, 504 and 506 I.P.C., P.S. Haldaur, District- Bijnor and order dated 26.08.2006 passed by Additional Sessions Judge, Court No. 2, Bijnor in Criminal Revision No. 58 of 2006, Brij Pal vs. Rajesh Kumar. The application under Section 156(3) Cr.P.C. was filed by respondent no. 2 on 03.04.1999 implicating the petitioner and on the basis of the order passed thereon by the learned Magistrate FIR was registered against the petitioners as Case Crime No. 186 of 1999 under Sections 323, 336, 452, 307, 504 and 506 I.P.C., P.S.- Haldaur, District- Bijnor. The allegations were regarding dispute between the parties during construction of boundary wall wherein assault on the family members of the complainant was alleged on 29.03.1999.
3. The police conducted investigation and submitted a final report in favour of the accused-petitioners on 21.04.1999 which was protested by way of petition by the respondent no. 2 on 21.12.2004, after almost 5 years of the submission of final report. Protest petition filed by the respondent no. 2 was supported by affidavits of five persons, namely, Raj Pal, Har Pal, Dharm Pal, Mahi Pal, Shiv Charan Singh and Satya Pal. The Magistrate allowed the protest petition and rejected the final report relying upon the averments made in the protest petition and the affidavits of five persons aforesaid.
4. Petitioners preferred a Criminal Revision No. 58 of 2006 against the order dated 07.12.2005 of the Magistrate but the same was dismissed on the ground of maintainability. The argument of the counsel for the petitioner is that the order dated 07.12.2005 has been passed arbitrarily ignoring the provisions of Section 190(1)(b) Cr.P.C. The Magistrate has passed the order impugned relying upon the affidavits filed by the five persons when as per the procedure he could have only relied upon the evidence collected by the investigating officer and could not have considered the extraneous material. The revisional court has also refused to exercise his jurisdiction vested in it by law.
5. A perusal of the order of the Magistrate shows that it has relied upon the evidence collected by the police and also on the statements of the witnesses filed along with protest petition.
6. The other argument is that the witnesses who have filed affidavit along with protest petition were not examined under Section 161 Cr.P.C. and their affidavits have been taken into consideration by the Magistrate.
7. Learned A.G.A. has not been able to support the order passed by Magistrate. His only objection is that the proper remedy of the petitioner lies under Section 482 Cr.P.C. and the writ petition under Article 226 is not maintainable.
8. The only submission of the learned counsel for the petitioner is that the order of the trial court dated 11.5.2003 is illegal on account of the fact that the court below has relied upon the affidavits of the witnesses of complainant, while summoning the accused, when the court should have confined itself to the material collected by the Investigating Officer, in case he disagreed with the police report.
9. It was not open for him to consider any extraneous material. This Court in the case of Hare Ram and other Vs. State of U.P. and another, 2016 (95) ACC 156, has held that the Magistrate has not referred to any material placed before him or collected by Investigating Officer. Relying on affidavits filed before him alongwith protest petition, process were issued to the accused. This Court disapproved such a course adopted by the Magistrate. Similar view has been taken in the case of Manoj Kumar Singh and others Vs. State of U.P. and another, 2007 (3) JIC 591 (All), where this Court has held that Magistrate has wrongly taken cognizance considering the materials filed with the protest petition. Magistrate cannot take cognizance of offence on considering the materials other than the material collected by the Investigating Officer.
10. Learned counsel for the respondents could not dispute the legal position of the case.
11. The proper remedy for the petitioners lies under Section 482, Cr.P.C., since in the year 2006 when this writ petition was filed the law was not clear, this petition was entertained. Subsequently it has been settled that orders passed by criminal courts regarding complaints, investigation, search and seizures, trials, etc., in exercise of their jurisdiction might effect the right of a party, but for enforcement thereof recourse to Article 226 of the Constitution of India is not justified. The remedy lies within the four corners of Cr.P.C. itself.
12. In the case of Radhey Shyam Vs. Chhabi Nath, (2009) 5 SCC 616 the Apex Court has held that High Court cannot issue a writ of certiorari under Article 227 of the Constitution of India.
13. In Shalini Shyam Shettey Vs. Rajendra Shanker Patil, (2010) 8 SCC 329 writ of certiorari under Article 226 of the Constitution of India was held to be issued for correcting errors in order passed by an authority or tribunal exercising judicial or quasi-judicial functions. Exercise of such power by sitting in appeal, revision or review of order of courts were not approved.
14. In view of the above legal position, the petitioner can be granted liberty to apply for conversion of the writ petition into an Application under Section 482, Cr.P.C. at this belated stage or inherent powers made Section 482 Cr.P.C. can be exercised as per Apex Court's judgement in the case of Papular Muthiah Vs. State Represented by Inspector of Police, (2006) 7 SCC 296 (Paragraph Nos. 30 to 33):-
"In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings.
It is not trammeled by procedural restrictions in that
(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.
This Court in Dinesh Dutt Joshi v. State of Rajasthan and Another, [(2001) 8 SCC 570] while dealing with the inherent powers of the High Court held:
"The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases."
The decisions of this Court emphasized the fact that there exists a distinction between two classes of cases, viz., (i) where application of Section 482 is specifically excluded and (ii) where there is no specific provision but limitation of the power which is sought to be exercised has specifically been stated. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866], this Court summarized some of the categories of cases where inherent power should be exercised to quash a criminal proceeding against the accused stating:
" (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge." The said decision has been noticed subsequently by this Court in State of Karnataka v. M. Devendrappa and Another [(2002) 3 SCC 89]".
15. This Court feels that availing first option would not be justified after twelve years of pendency of the writ petition. Exercising the second option, the order dated 07.12.2005 passed by the Additional Chief Judicial Magistrate, Court No. 2, Bijnor in Case No. 534 of 2005 is hereby set aside and the trial court is directed to pass fresh order in the light of the observations made above and in accordance with law, within a period of three months from the date of receipt of certified copy of this order.
16. This revisional order, which has affirmed the order of the trial court, is also not in accordance with present law and is hereby set aside.
17. The writ petition stands allowed.
Order Date: 17.09.2018 Rohit