1. The present petition has been filed challenging the proceedings of Case No.226 of 2010 (Sunder Lal Maurya versus D.K. Mahesh) pending in the Court of Additional Chief Judicial Magistrate, Court No.15, Raebareli under Sections 166, 506 IPC.
2. This Court vide order dated 13.01.2012 stayed the further proceedings of the aforesaid Case No.226 of 2010.
3. The facts which emerge from the record of the case are that the respondent was appointed as 'Auto Helper' in Indira Gandhi Rastriya Udan Academy, Raebareli (hereinafter referred to as' IGRUA'). The respondent was promoted as Tractor Driver on 02.09.1994 in the pay scale of Rs.950-1500. The respondent filed writ petition being Writ Petition No.5782(SS) of 2000 before this Court alleging that he along with one, Ram Chandra Singh was promoted to the post of Driver but they were not paid salary of the Driver.
4. This Court on 18.10.2000 passed interim order in following terms:-
"Sri Dipak Seth prays for and is granted one week's time for filing counter affidavit.
List on 03.11.2000 for final disposal.
In the meantime, in case the work of driver is being taken from the petitioner, he shall be paid salary as Driver which may be subject to further orders of this court."
5. The respondent had filed as many as five contempt petitions for alleged disobedience of interim order dated 18.10.2016. Details of aforesaid five contempt petitions are given as under:-
(i) Criminal Misc. Case No.853(C) of 2001 (dismissed on 21-8-2001)
(ii) Criminal Mic. Case No.1551(C) of 2004 (dismissed on 4-1-2005)
(iii) Criminal Misc. Case No.1409(C) of 2007 (dismissed on 28-5-2007)
(iv) Criminal Misc. Case No.1423(C) of 2007 (dismissed on 23-11-2007)
(v) Criminal Misc. Case No.504(C) of 2007 (dismissed on 5-1-2009)
6. It appears that the respondent was dismissed from service and he has filed Writ Petition No.2226(SS) of 2003 challenging his order of dismissal.
7. While rejecting the (V)th contempt petition being Crl. Misc. Case No.504(C) of 2007, this Court held as under:-
"..... it was specifically observed by this Hon'ble Court that the applicant is quite obstinate and is repeatedly filing petitions. It was also observed in the order dated 23.11.2007 by this Hon'ble Court that such as applicant must be dealt with firmly so as to deter such a litigant from wasting precious time of the court by bringing the frivolous petition only for the purpose of harassment of the opposite parties by repeatedly filing contempt petitions on after the other. However, since the applicant has appeared in person, this Court restrained itself from imposing heavy cost upon under such circumstances but inspite of the aforesaid observations, the applicant has filed the instant contempt petition, therefore, I impose Rs.10,000/- as costs upon the applicant which shall pay the same within two months before the Registrar of this Court. In case the applicant will not deposit the said cost within the stipulated period, the District Magistrate, Raebareli is directed to recover the cost of Rs.10,000/- from the land revenue of the applicant. After receipt of the said cost of Rs.10,000/-, the District Magistrate, Raebareli will transmit the said amount to the Registrar of this Court and the Registrar is directed to transmit the said amount to the Mediation and Conciliation Centre, High Court, Lucknow."
8. The petitioner had moved an application under Section 156(3) Cr.P.C. on 21.03.2005 for filing alleged false affidavit by the petitioner and two others namely, Mr. K. Gohen and Sri Praveen Budhwar in the contempt proceedings instead of complying the interim order dated 18.10.2000 granting the petitioner pay scale of Driver Rs.1200-2040/-. The statement of the respondent was recorded under Section 200 Cr.P.C. and, thereafter statement of sole prosecution witness, Satendra Singh was also recorded under Section 202 Cr.P.C. The witness, Satendra Singh gave statement before the learned Chief Judicial Magistrate on 08.06.2005 and said "I am working with IGRUA on the post of Driver. Sunder Lal Maurya was also working with him. At that time, Praveen Budhwar was the Director and at present Mr. K. Gohen is the Director. D.K. Mahesh was the Chief Administrative Officer at that time and at present he is also the Chief Administrative Officer. I am the Chief Secretary of the Labour Union of the Academy. Sunder Lal Maurya is dismissed from service. Sunder Lal Maurya filed writ petition before the High Court, Lucknow Bench being dissatisfied with the salary given to him for the post of Driver. The High Court on 18.10.2010 directed for payment of salary of Driver to Sunder Lal Maurya. Despite the aforesaid order dated 18.10.2000, Sunder Lal Maurya has not been taken back in service in connivance of the officers instead of he has been dismissed from service. Mr. D.K. Mahesh, Chief Administrative Officer has been working illegally in the IGRUA and he has been found guilty of corruption."
9. Considering the allegation in the complaint as well as the statement of the complainant and witness, the learned Chief Judicial Magistrate, Raebareli vide order dated 20.06.2005 had summoned the petitioner under Sections 166 and 506 IPC. The allegations in the complaint were that the petitioner who was appointed as Auto Helper in the pay scale of Rs.750-950 was promoted to the post of Tractor Driver which had the pay scale of Rs.950-1500. However, the other employees who were appointed with the petitioner to the post of Auto Helper were promoted to the post of Driver carrying Pay Scale of Rs.1200-2040. He said aggrieved by the aforesaid distinction and non grant of pay scale of Driver as Rs.1200-2040, he filed writ petition before this Court being Writ Petition No.5782(SS) of 2000 in which an interim order was passed on 18.10.2010 and, it was directed that if work of the Driver was being taken from the petitioner, he should be paid salary of Pay Scale of Rs.1200-2040. When the aforesaid interim order was not complied with, he filed contempt petition in which the accused filed false affidavit. It was falsely said that the pay scale of Driver and Tractor Driver was one and the same. It was also said that the affidavit was filed by the petitioner claiming to be the Chief Administrative Officer of IGRUA. However, no such post existed in the Academy and, therefore, the aforesaid affidavit was a false affidavit. When the petitioner got to know about these facts, he went to the police station but no action was taken and, therefore, he filed an application under Section 156(3) Cr.P.C. which was rejected.
10. Thereafter, he met the Director General of Police who directed the Superintendent of Police, Raebareli to register a case against the accused on which a case has been registered in Police Station-Furshatganj at Case Crime No.12 of 2005 under Section 420 IPC.
11. It was further alleged that the police filed final closure report in the aforesaid case. The petitioner was threatened to take back the case otherwise he would be killed. When the petitioner was going to Police Station-Furshatganj on 16.04.2005, the accused stopped him and confined him for one hour. He was abused and threatened that if he did not close the case, he and his entire family would be killed. He said that information about this incident was given to the Superintendent of Police on 03.05.2005 through a registered post. Earlier he gave the complaints to the Station Officer and Superintendent of Police from 16.04.2005 to 02.05.2005 orally and in writing also, but no action was taken. He said that in view of the aforesaid, a complaint was filed for summoning the accused under Sections 420, 342, 504, 506 IPC. The respondent's evidence was recorded by the learned C.J.M. under Section 244 Cr.P.C. on 17.06.2010.
12. It is further said that the petitioner gave false affidavit in Contempt Petition No.853 of 2001 claiming himself to be the Chief Administrative Officer of IGRUA and that the interim order dated 18.10.2000 was complied with, which comes within the definition of cheating. He also said that he was called in the office and, threatened to take the case back from the Court. The petitioner was terminated on 23.07.2002 in a most arbitrary manner for which he filed Writ Petition No.2226(SS) of 2003. He said that he had been wrongly dismissed from service. The petitioner did not hold the post of Chief Administrative Officer.
13. Thus, on conjoint reading of statement of the respondent under Section 200 Cr.P.C. and his evidence under Section 244 Cr.P.C. as well as statement of sole witness recorded under Section 202 Cr.P.C., the sum and substance of the allegations against the petitioner is that he had filed incorrect and false affidavit before this Court stating that the pay scales of Driver and Tractor Driver were same and the petitioner was given pay scale of Driver and, that the petitioner was not validly holding the post of Chief Administrative Officer.
14. It is also relevant to mention here that in the interim order dated 08.10.2000 passed by the writ court, it was nowhere mentioned as to what pay scale to be paid to the petitioner and, it was only provided that if the work of Driver was being taken from the petitioner, he should be paid salary of the Driver which would be subject to further orders of this Court.
15. The petitioner himself moved an application dated 20.01.2005 in Writ Petition No.5782(SS) of 2000 for modification and clarification of interim order dated 18.10.2000 to the extent that he should be paid salary in the pay scale of Rs.1200-2040, however, no order was passed on the said application and the application remained pending.
16. The Trial Court, however, vide order dated 18.08.2010 framed charges against the petitioner under Sections 166 and 506 IPC. Against the aforesaid order dated 18.08.2010, the petitioner preferred a revision petition in the Court of District Judge, Raebareli which was finally allowed vide order dated 12.02.2011 and the matter was remitted back to the learned Chief Judicial Magistrate with specific direction to pass a fresh order keeping in view the provisions contained under Sections 245 and 246 Cr.P.C.
17. On remand, the Trial Court held that there was sufficient ground available for framing of charge against the petitioner under Sections 166 and 506 IPC.
18. Feeling aggrieved by the aforesaid order passed by the learned Trial Court, the petitioner preferred a Criminal Revision No.340/2011 before this Court which was dismissed at the admission stage on the ground that the petitioner would have liberty to argue before the Trial Court at the time of framing of the charges. Learned Trial Court was directed to provide reasonable opportunity of hearing to the petitioner at the time of framing of the charge in the case.
19. On 08.11.2011, charges were framed against the petitioner under Sections 166, 506 IPC. Against the aforesaid order dated 08.11.2011, the petitioner preferred a revision before District and Sessions Judge. Vide impugned order dated 24.11.2011 the revision filed by the petitioner has been dismissed.
20. Learned Single Judge of this Court vide judgment and order dated 23.12.2016 finally decided the Writ Petition No.2226(SS) of 2003 filed by the petitioner against his dismissal from service as well as Writ Petition No.5782(SS) of 2000 which was filed for pay scale of Driver. The learned Single Judge held that the entire disciplinary proceedings against the respondent initiated by the petitioner functioning as Chief Administrative Officer are de-hors the Rules of the Society, as also the Conduct and Discipline Rules, both of which have been framed with the approval of the Government of India. The competent authority to initiate and impose the Disciplinary punishment upon the petitioner was supposed to be the Chief Administrative and Finance Officer. The post of Chief Administrative Officer was not created as per Rules, promotion of the petitioner to the said post, who neither had the requisite qualification nor experience was also de-hors the Rules. Thus, initiation and conclusion of disciplinary inquiry and imposition of punishment of dismissal from service against the respondent suffered from complete lack of jurisdiction inasmuch as the officer who initiated the proceedings and ultimately imposed the punishment on the respondent was not appointed as per rules. It was also held that the same allegations were made against Ram Chandra Singh, who was also the petitioner in Writ Petition No. 8782(S/S) of 2000 along with respondent, Sunder Lal Maurya, but no action was taken against him and he withdrew himself from the earlier writ petition, but based on the same allegation, disciplinary proceedings were initiated against the petitioner who continued to pursue the said writ petition. It was held that the disciplinary proceedings initiated against the petitioner, were discriminatory and, he had been treated unfaulty and unjustly for the reason he did not succumb to the pressure and did not withdraw the writ petition.
21. In view of the aforesaid, the punishment order was quashed and the Writ Petition No.2226(SS) of 2003 was allowed.
22. It was directed that the respondent to be reinstated in service with effect from the date of passing of the order of his removal from service. However, back wages had been limited to only 50%. Writ Petition No.5782(SS) of 2000 was disposed of on the ground that there was no vacancy at the relevant time and, therefore, claim of the respondent for promotion with effect from date of promotion of others to the post of driver need not to be considered at this belated stage. However, it was held that since the petitioner was promoted as Tractor Driver carrying the same pay-scale as that of Driver, if as a consequence of his reinstatement he was entitled to be considered for promotion or adjustment as Driver and thereafter, for further promotions, if any for which he should be considered in accordance with Rules. It was further directed that all the applications filed by the petitioners under Section 340 Cr.P.C. would be listed separately for hearing.
23. Against the aforesaid judgment and order of learned Single Judge dated 23.12.2016, an intra Court appeal being Special Appeal No.10 of 2017 was filed by the Director IGRUA. The aforesaid Special Appeal was allowed on 13.09.2017 and judgment and order dated 23.12.2016 was quashed. It was directed to transfer the record of both the writ petitions to the Central Administrative Tribunal, within two months from the date of the order whereupon the Tribunal would proceed to decide the same, in accordance to law. It was further directed that all ancillary proceedings whatever may be pending consideration before this Court in both the writ petitions will also be transfered to the Central Administrative Tribunal.
24. Two applications (C.M.A. Nos.82666 of 2003 and 98691 of 2015) of the respondents filed under Section 340 Cr.P.C. in Writ Petition No.2226(SS) of 2003 have been rejected vide order dated 03.07.2017.
25. Heard Sri Ratnesh Chandra, learned counsel for the petitioner and Mr. Sunder Lal Maurya, the respondent who has appeared in person.
26. Sri Ratnesh Chandra, learned counsel for the petitioner submits that IGRUA is a society registered under the provisions of Society Registration Act and, the petitioner has been working as its Chief Administrative Officer. Since, the petitioner is employed in a society, he is not a Government Servant. IGRUA is an autonomous body and its employees including the petitioner cannot be said to be public servant within the meaning of Section 21 of the IPC. IGRUA, at the best, can be said to an instrumentality of the State within the meaning of Article 12 of the Constitution of India but its employees/officers cannot be said to be public servant. It is, therefore, said that charge against the petitioner as alleged under Section 166 IPC could not have been framed. It has further been said that the petitioner had filed five successive contempt petitions including two applications under Section 340 Cr.P.C. for identical allegation that contained in the complaint. All these contempt petitions have been dismissed by this Court even applications under Section 340 Cr.P.C. have been dismissed. In view of the aforesaid, continuance of the proceedings in the Case No.226 of 2010 and framing of charge are gross abuse of process of the Court. The charges have been framed mechanically without application of mind.
27. On the other hand, Mr. Sundar Lal Maurya who appears in person has submitted that charges have been framed against the petitioner and, the petitioner should face the prosecution. At this stage, this Court should not interfere with the ongoing trial. It has further been submitted that dismissal of the contempt petitions and application filed under Section 340 Cr.P.C. have no bearing in the ongoing trial inasmuch as the contempt jurisdiction and criminal trial operate in two different fields, therefore, dismissal of contempt petitions and application under Section 340 Cr.P.C. are of no relevance while deciding the present petition. It has further been submitted that the present petition filed under Section 482 Cr.P.C. is not maintainable inasmuch as it has been filed against the dismissal of the revision filed by the petitioner firstly by this Court on 11.08.2011 and again on 24.11.2011 passed by learned Sessions Court.
28. I have considered the submissions of the parties carefully.
29. Section 166 of the IPC reads as under:-
"166. Public servant disobeying law, with intent to cause injury to any person.--Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
30. Thus, Section 166 IPC gets attracted in a case where public servant knowingly disobeys any direction of law and he has knowledge that his conduct as public servant or disobedience of law would cause injury to any person. Section 166 IPC is applicable only against a public servant. As mentioned above, IGRUA is a society. The petitioner was an employee of the society. The petitioner is not a public servant as defined under Section 21 of the IPC. An employee of the society does not fall in any of twelve categories of persons mentioned under Section 21 of the IPC and, thus, framing of charge under Section 166 IPC against the petitioner is wholly unjustified and not tenable.
31. Section 506 IPC provides for punishment in case of criminal intimidation. It is not in dispute that the petitioner has been in litigation and has filed several cases including five contempt petitions before this court and two applications under Section 340 Cr.P.C. besides the two writ petitions for his promotion and against dismissal from service. The order of dismissal was passed by the petitioner. The witness who was examined under Section 202 Cr.P.C. has not supported the allegation of criminal intimidation against the petitioner. The witness in his statement under Section 202 Cr.P.C. has not even whispered a word which would constitute an offence under Section 506 IPC. Thus, even framing of charge under Section 506 IPC is without any basis and evidence.
32. It is well settled law that a petition under Section 482 Cr.P.C. is maintainable even after dismissal of revision filed under Section 397 Cr.P.C. The remedy under Section 482 Cr.P.C. is not barred. Section 482 Cr.P.C. aims merely to preserve and recognize the inherent powers of High Court and does not confer any new powers. Therefore, the submission of the respondent that after dismissal of the revision by the revisional court, this petition is not maintainable has no force.
33. The Supreme Court in the case of Dhariwal Tobacco Products Limited and others versus State of Maharashtra and Another: (2009) 2 SCC 370 in para 7 has held as under:-
"7. The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof. The said provision reads thus:
"483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates.--Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates."
The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan v. Krishnaveni [(1997) 4 SCC 241 : 1997 SCC (Cri) 544] .)"
34. Further, the Supreme Court in the case of Prabhu Chawla v. State of Rajasthan: (2016) 16 SCC 30 in paragraphs 7 to 9 has held as under:-
"6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of the High Court under Section 482 CrPC is unwarranted. We would simply reiterate that Section 482 begins with a non obstante clause to state:
"482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J.
"abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more". (Raj Kapoor case [Raj Kapoor v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] , SCC p. 48, para 10) We venture to add a further reason in support. Since Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders! A situation wholly unwarranted and undesirable.
7. As a sequel, we are constrained to hold that the Division Bench, particularly in para 28, in Mohit [Mohit v. State of U.P., (2013) 7 SCC 789 : (2013) 3 SCC (Cri) 727] in respect of inherent power of the High Court in Section 482 CrPC does not state the law correctly. We record our respectful disagreement.
8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in Dhariwal Tobacco Products Ltd. [Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 : (2009) 1 SCC (Cri) 806] and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in Sanjay Bhandari [Sanjay Bhandari v. State of Rajasthan, (2009) 1 Cri LR 282 : 2009 SCC OnLine Raj 456] passed by another learned Single Judge on 5-2-2009 in SB Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected criminal appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane and others are allowed. The impugned common order dated 2-4-2009 [Ashish Bagga v. State, 2009 SCC OnLine Raj 1552] passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 CrPC in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months.
9. The impugned order in the third appeal, dated 5-2-2009 [Sanjay Bhandari v. State of Rajasthan, (2009) 1 Cri LR 282 : 2009 SCC OnLine Raj 456] passed by the High Court of Judicature of Rajasthan at Jodhpur has been relied upon and followed while passing the order dated 2-4-2009 [Ashish Bagga v. State, 2009 SCC OnLine Raj 1552] impugned in the other two appeals. Since that order has been set aside while allowing those appeals hence the order impugned in this appeal also has to be set aside for the very same reasons and for the view taken by us in respect of scope and ambit of Section 482 CrPC. Accordingly this appeal is also allowed and the impugned order is set aside with the same directions as in the other two appeals."
35. In view thereof, I find that continuance of the criminal proceedings against the petitioner in Case No.226 of 2010 (Sunder Lal Maurya versus D.K. Mahesh) pending in the Court of Additional Chief Judicial Magistrate, Court No.15, Raebareli under Sections 166, 506 IPC would be an abuse of the process of the Court and, the same are therefore, liable to be quashed.
36. In view of the aforesaid, the present petition is allowed and proceedings in Case No. 226 of 2010 (Sunder Lal Maurya versus D.K. Mahesh) pending in the Court of Additional Chief Judicial Magistrate, Court No.15, Raebareli under Sections 166, 506 IPC are quashed.
Order Date :- 22nd August, 2019 prateek