Raghvendra Singh vs State Of U.P.
2011 Latest Caselaw 7 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 42
 

 
Case :- CRIMINAL REVISION No. - 823 of 2004
 

 
Petitioner :- Raghvendra Singh
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Ashwini Kumar Awasthi,Manish Tiwary
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Shri Kant Tripathi,J.

1. Heard learned counsel for the revisionist and learned AGA for the respondent and perused the record.

2. This revision has been preferred against the judgment and order dated 13.2.2004 passed by the Additional Sessions Judge, Fast Track Court, Sonebhadra in criminal appeal no. 9 of 2001, whereby the learned Additional Sessions Judge maintained the conviction order dated 18.5.2001 recorded by the Chief Judicial Magistrate, Sonebhadra under section 349 of the Code of Criminal Procedure (in short 'the Code') against the revisionist.

3. It appears that the vehicle UHX 450 was seized and detained by the police of police station Pannuganj, district Sonebhadra, on the ground that the vehicle was being used in violation of the provisions of the Motor Vehicles Act. The owner of the vehicle Gopal Pandey moved the application (Annexure 1) before the Chief Judicial Magistrate , Sonebhadra for summoning the challani report from the S.O. Pannuganj. The learned Chief Judicial Magistrate accordingly summoned the challani report but the revisionist, who was the S.O. of police station Pannuganj, instead of sending the challani report to the court, informed vide his report dated 19.4.2001 (Annexure 2) that the challani report had been sent to the court through the A.R.T.O. on 11.4.2001 according to the directions of the Government so that the taxes etc. payable in respect of the vehicle could be recovered and further clarified as to why the report could not be sent earlier. Taking note of this attitude of the revisionist, the Chief Judicial Magistrate issued the show cause notice dated 3.5.2001 (Annexure 4) under section 349 of the Code to the revisionist, in pursuance whereof the revisionist submitted his detailed explanation dated 18.4.2001 (Annexure 7) and contended that the Superintendent of Police had ordered that the challani report under the Motor Vehicles Act shall be sent to the court through A.R.T.O. This decision by the Superintendent of Police had been taken as a policy matter so as to enable the A.R.T.O. to assess and recover the tax, if any, payable on the vehicle. The S.O. concerned further replied the court that he had gone to Hyderabad in connection with delivering a lecture in a training program so he could not attend the court. The Chief Judicial Magistrate found the explanation unsatisfactory and accordingly sentenced the revisionist to under go simple imprisonment of seven days under section 349 of the Code. Feeling aggrieved from the order of the Chief Judicial Magistrate, the revisionist preferred the aforesaid appeal but the learned Additional Sessions Judge dismissed the appeal on merits.

4. The learned counsel for the revisionist submitted that there was neither any refusal on the part of the revisionist nor he made any deliberate disobedience of the order of the court. In fact the revisionist had already transmitted the challani report to the office of the A.R.T.O. on 11.4.2001 before he received the order of the Magistrate requiring him to transmit the challani report to the court. The revisionist did so on account of the fact that the Superintendent of Police had directed all the police officers to submit the challani report under the Motor Vehicles Act to the court through the A.R.T.O. so as to enable the A.R.T.O. to assess and recover the tax, if any, payable on the vehicle. It was also submitted on behalf of the revisionist that the revisionist, on account of clerical error, mentioned in his report that there was a Government order for submission of the challani report in the court through the A.R.T.O. The learned counsel further submitted that the revisionist had been deputed to go to Hyderabad to impart training to trainee I.P.S. officers in the Police Academy, Hyderabad and went there on 19.4.2001. In this view of the matter the revisionist could not furnish reply within the time fixed by the court nor could appear personally in the court. Therefore, the impugned orders, which are very harsh, ought not to have been passed. The learned counsel for the revisionist lastly submitted that it was open to the police to file challani report directly in the court or to route it through the A.R.T.O.

5. Learned A.G.A. on the other hand submitted that when the Magistrate called for the challani report from the revisionist, there was no justification for the revisionist to withhold the report. After all the Magistrate had to pass some order on the application moved by the owner of the vehicle, as such the attitude adopted by the revisionist in ignoring the order of the Magistrate can not be appreciated, therefore, the courts below were fully justified in convicting and sentencing the revisionist under section 349 of the Code.

6. Section 349 of the Code provides that if any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346 of the Code.

7. It may not be out of context to mention that the Delhi High Court has considered the ambit and scope of section 349 of the Code in the case of Mithan Lal vs. The State, 2002 CRI. L.J. 3422 and held in para 8 as follows:

"8. Section 349, Cr.P.C. empowers the Courts (after recording the reasons in writing) to sentence any person, who refuses to produce a document or a thing before the Court or refuses to answer the questions put to him. Before section 349, Cr. P.C. can be pressed into service,the court must be satisfied that :

(a) the witness is called to produce a document or thing before a Criminal Court;

(b) the witness refuses to produce the document or thing in his possession or power which the Court requires him to produce; and

(c) despite reasonable opportunity, the witness falls to offer any reasonable excuse for such refusal. Only after these conditions are satisfied, the Court, after recording reasons, may sentence a witness for a term not exceeding seven days simple imprisonment, unless in the meantime, the witness produces the document or thing. And in the event of his persisting in his refusal, the Court is empowered to initiate action for contempt against such person, as per the procedure laid down in section 345, Cr.P.C. Thus, section 349 pre-supposes that the document is in power and possession of the witness, who is required to produce the same. In the absence of a material on record that the witness is in possession of the document and that he has deliberately not producing the same, action under section 349 Cr.P.C. can not be initiated. This being a penal provision has to be given a strict interpretation."

8. Therefore, one of the essential requirements for taking action under section 349 of the Code is that the person, who is required by the criminal court to answer any question or to produce a document or thing being in his possession, is under legal obligation to answer the question or to produce the document or thing in the court but he refuses to do so. Therefore, a refusal on the part of such person to answer the question or to produce the document or thing is a condition precedent for invoking section 349 of the Code. Sometimes deliberate omission, avoidance or reluctance, in view the facts and circumstances under which such omission, avoidance or reluctance is committed, may amount to refusal. If such person shows any reasonable excuse for the refusal to answer the question or to produce the document or thing, the order under section 349 of the Code in such circumstance should not be passed against that person. If in the meantime the order of the court is complied with or the person concerned agrees to comply, the court, in such situation, should drop the proceeding. This conclusion is obvious from the expression "unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing" used in section 349 of the Code.

9. As discussed above, the provisions of section 349 of the Code being punitive in nature should not be resorted to lightly and should be enforced sparingly only in a case where there is deliberate refusal on the part of the person called upon by the criminal court to answer any question or to produce the document or thing being in his possession and fails to show any reasonable excuse for not doing so. If such person furnishes a reasonable excuse (explanation) justifying his stand and indicating that he never intended to defy the order of the court, in that eventuality his explanation should be accepted. If the explanation comes forward even during the course of pendency of the proceedings under section 349 of the Code, the same has to be taken into account and it can not be contended that he failed to furnish adequate explanation at the initial stage, while furnishing replies to the show cause notice.

10. It is also crystal clear that section 349 of the Code seems to be applicable against a person who is either witness in a case pending before the criminal court or is otherwise required to produce any document or thing as evidence. The document or thing referred to in section 349 of the Code does not seem to be the charge sheet or the challani report because challani report/ charge sheet is not an evidence.

11. In the present case the revisionist had already sent the challani report to the office of the A.R.T.O. on 11.4.2001, much prior to receipt of the show cause notice, therefore, it can not be contended that he diverted the challani report to defy the order of the court. He did so under the orders of the Superintendent of Police so as to enable the A.R.T.O. to assess and recover the tax, if any, payable on the vehicle. It appears that the courts below took a serious note of the reply furnished by the revisionist that the challani report was submitted to the office of the A.R.T.O. on account of a government order, but there was no such government order. In this connection, the revisionist had very categorically explained his position and alleged in the subsequent reply that due to clerical error he made a reference of the government order in his previous reply and further stated that there was an order of the Superintendent of Police to file challani report under the Motor Vehicles Act in the court through the A.R.T.O. But the courts below did not give any due consideration to this clarification of the revisionist. It is also a notable fact that the revisionist had further disclosed in his reply that a sum of Rs. 1,27,000/- as tax was payable on the vehicle, therefore, the matter was referred to the A.R.T.O. to recover the tax. In view of huge arrears of tax payable by the owner of the vehicle, the submission of the challani report to the A.R.T.O. can not be said to be unjustified rather it was proper. It is for the police/administrative authority to decide as to how a challani report/charge sheet is to be routed to the court and if any such decision to route the challani report/ charge sheet through any officer is taken, it can not be held that direction of the police/administrative authority is not tenable in law. The revisionist had further explained his position so far as the delay in furnishing the reply or his non-appearance in the court is concerned. He had clarified that he had been required to go to the Police Academy, Hyderabad for imparting training to trainee I.P.S. officers and accordingly he could not furnish the reply earlier. Therefore, the delay, if any, on his behalf to furnish the reply or the default in appearing in the court does not seem to be deliberate. There was no material on record to discard this explanation of the revisionist.

12. For the reasons disclosed above, l am of the view that the revisionist has furnished satisfactory explanation for not submitting the challani report in the court in time and also for not personally appearing in the court. The explanations furnished by the revisionist fall well within the category of reasonable excuse provided in section 349 of the Code, therefore, the courts below were not justified in convicting and sentencing the revisionist under section 349 of the Code.

13. The revision is, therefore, allowed. The impugned order dated 18.5.2001 passed by the Chief Judicial Magistrate, Sonebhadra as well as the revisional court's order dated 13.2.2004 are quashed. Consequently the proceedings initiated against the revisionist under section 349 of the Code are dropped.

Order Date :- 3.3.2011

RKSh