Anirudha Tiwari And Ors. vs The State Of U.P Thru Secy., Home ...
2013 Latest Caselaw 6051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?AFR
 
Court No. - 14
 

 
Case :- U/S 482/378/407 No. - 4291 of 2013
 
Applicant :- Anirudha Tiwari And Ors.
 
Opposite Party :- The State Of U.P Thru Secy., Home Deptt., And Anr.
 
Counsel for Applicant :- Piyush Mishra
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

By means of this petition, the petitioners have prayed for to quash the charge sheet no. Nil/2013 dated 30.04.2013, filed on the basis of NCR No. 172/2011 and summoning order dated 12.06.2013 in Criminal case No. 1832 of 2013 passed by Learned Chief Judicial Magistrate, Ambedkar Nagar.

Heard learned counsel for the petitioners as well as learned AGA and gone through the records.

Brief facts of the case are that opposite party no. 1 lodged an FIR at P.S.- Raje Sultanpur, District- Ambedkar Nagar against the petitioners  for the offences punishable under Section 323/504/506 IPC.  The FIR was lodged on 11.11.2011 at 2.30 p.m as NCR.  The Police investigated into the matter and submitted charge sheet on 30.04.2013.  All the offences are non-cognizable.  Unmindful of this fact, the learned Chief Judicial Magistrate, Ambedkar Nagar passed the impugned order dated 12.06.2013, which simply mentions that charge sheet against the accused is received, cognizance is taken, registered.  The learned Magistrate did not bother to see as to whether prima facie, charges punishable under Section 323/504/506 IPC are made out against the accused applicant or not ?

This court in the case of Ghanshyam Dubey @ Litile and Ors. vs. State of U.P. reported in [2013 (81) ACC 687] has held as under:-

"It is to be seen that the charge sheet has been submitted under Sections 323/504 and 506 IPC.  The offences under Sections 323/504 and 506 IPC were all non-cognizable and bailable, but the offence under Section 506 IPC was made cognizable and non-bailable vide, the U.P. Government Notification No. 777/VIII-94(2)-87 dated July 31, 1989.  However, this notification was held to be illegal and  ultra-vires by a Division Bench judgment of this Court in the case of Virendra Singh and others v. State of U.P. and others. So now the legal position is that the offence under Section 323, 504 and 506 IPC are bailable and non-cognizable.

It has been provided in the explanation to section 2 (d) of the Criminal Procedure code that a report made by the police office in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.  In view of this explanation, the charge-sheet submitted by the police in the above case under Sections 323, 504 and 506 IPC could not be treated to be police case, but it would be deemed to be a complaint and the police officer who submitted the charge-sheet is to be deemed to be the complainant.  As such, the order passed by the learned Magistrate for taking cognizance on the charge-sheet as a state case is illegal and is liable to be set aside.

The application under Section 482 Cr.P.C. is therefore, allowed to the extent that the order passed by the Judicial Magistrate on the charge-sheet in Case No. 1850 of 2009 arising out of N.C.R. No. 65 of 2009, under Sections 323, 504  and 506 IPC, P.S.- Sujanganj, District- Jaunpur is set aside and the above charge-sheet shall be treated to be a complaint under Section 506 IPC and the Magistrate concerned shall follow the procedure prescribed under the Criminal Procedure Code for taking action on the complaint."

I am fully in agreement with the authority. 

In view of the authority as mentioned above, the judicial system cannot be taken to ransom by having resort to grounds beyond the purview of law.  The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice.  Any order, which weakens the system and shaken the faith  of the common man in the justice dispensation system has to be discouraged.

While holding this, this court relies  upon the law laid down by Hon'ble the Apex Court in the case of Zahira Habibulla H.Sheikh v. State of Gujarat [(2004) 4 SCC 158], in which it was held as under :-

"Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the 'majesty of the law'.  Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it."

Before concluding, I may hold that in a democratic set-up, intrinsic and embedded faith in the adjudicatory system is of seminal and pivotal concern.  It is the faith and faith alone that keeps the system alive.  It provides oxygen constantly.  Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casualty.  A litigant expects a reasoned verdict from a temperate Judge but does not intent to and rightly so, to guillotine much of time at the altar of reasons.  Timely delivery of justice keeps the faith ingrained and establishes the sustained stability.  Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right.  This right can be fully ripened by the requisite commitment of all concerned with the system.  It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose.

In an earlier decision, in the case of Babu Singh v. State of U.P. [(1978) 1 SCC 579], Hon'ble Krishna Iyer, J had stated thus:-

"Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial', whatever the ultimate decision.  Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings."

It is emphasized upon the magistracy that in criminal jurisprudence, speedy trial has become an indivisible component of Article 21 of the Constitution.  This court appreciates the difficulty of the magistracy due to huge pendency which has resulted in over stress of the duty by the learned Presiding Officer, which is the defect of the system.  The victim should not be a poor litigant, who is entitled to get justice as quickly as possible, irrespective of the odds undertaken by the judiciary.  This sentence is being mentioned in view of the fact that the Hon'ble Apex Court  has held in the case of Hussainara Khatoon v. State of Bihar [(1980)1 SCC 93] that it is the obligation on the part of the State to provide the infrastructure for speedy trial.  Unfortunately, the State is not providing adequate infrastructure but the poor litigant is continuing and continuing to blame legal fraternity i.e. Judges and Lawyers in a delayed justice delivery system which is shaking the confidence in the constitutional and judicial mechanism.  It is the duty of every Judge to impress upon the litigant public that they are not to be blamed for delay in disposal of cases and that the defect law is somewhere else for which the judicial machinery system is being generally blamed.  Thrashing out of this impression has also become part of the duty of the Judges.

The application is accordingly allowed.  The charge sheet dated 30.04.2013 as well as summoning order dated 12.06.2013 are hereby quashed.

Order Date :- 25.9.2013

Nitesh