U.C.Parikh vs State Of U.P.And Another
2016 Latest Caselaw 6704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
A.F.R.                               
 
Reserved on:24.08.2016 
 
Delivered on:27.10.2016
 

 
Court No. - 25
 

 
Case :- U/S 482/378/407 No. - 1301 of 2004
 
Applicant :- U.C.Parikh
 
Opposite Party :- State Of U.P.And Another
 
Counsel for Applicant :- Vijai Vikram,Arun Sinha,Praveen Kumar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Shamsher Bahadur Singh,J.

1. Heard Sri Arun Sinha, learned counsel for the applicant and Sri Shivnath Tilhari and Sri Digvijay Singh, learned AGA for the State.

2. As per office report dated 02.09.2004, notice was issued to opposite party no.2 on 19.07.2004 and his mother had received notice but no one has filed power on behalf of opposite party no.2 to argue the case.

3. This application under Section 482 Code of Criminal Procedure (hereinafter referred to as ''Cr.P.C.') has been filed for quashing of entire proceedings of Criminal Case No.2218 of 2002 (State of U.P. vs S.P. Singh and another) arising out of Case Crime No.377 of 1999, under Sections 304, 201, 191, 192, 418, 464, 468 and 120B IPC, P.S. Mahanagar, District Lucknow as well as chargesheet No.351A of 2001 submitted in the aforesaid case which is pending before the Chief Judicial Magistrate, Lucknow.

4. Necessary facts leading to prosecution of applicant for aforesaid offence are that on 31.05.1999 at about 10.30 A.M., the informant Ramakant Yadav found his real brother Jaipal Yadav in a pit situated within premises of U.I.C. Paper Mill, Nishat Ganj, P.S. Mahanagar, District Lucknow, who was crying for help. Jaipal Yadav was rescued and then he stated before the witnesses namely Roop Narayan, N.B. Singh, Ramakant Yadav (informant), Machalooram Yadav, Jaichandra Yadav, Dr. Dayanand Giri and Baba Ramdeen (Sahajanand Giri Baba) that another Guard Sanjay Singh assaulted him with stone and threw him in the pit. He was rushed to Medical College on the same day. The informant Ramakant Yadav contacted the applicant, Managing Director of U.I.C. Paper Mill at his residence situated within the premise of Paper Mill and narrated the incident. He asked for money for treatment of Jaipal Yadav as Security Office was found closed. The applicant gave him Rs. 1600/- on humanitarian ground. On 01.06.1999, Jaipal Yadav died and the inquest was conducted at Medical College Mortuary in the presence of the witnesses namely Ramakant Yadav (informant), Ram Dulare Yadav, Sunil Kumar Yadav, Ram Naresh Yadav, Vimalesh Yadav. All the Panchs stated that death was caused due to fall in the pit and none was blame for death. After inquest, the dead body was sent for autopsy, which was conducted on 01.06.1999 at 2 P.M. and post mortem report was prepared. Following ante mortem injuries were found on the person of the deceased:

(i) Lacerated wound 4 c.m. X 3 c.m. just above right eyebrow bone deep.

(ii) Abraded contusion 5 c.m. X 3 c.m. on the right cheek.

(iii) Abraded contusion 2 c.m. X 2 c.m. on the front of right knee.

The cause of death was opined due to comma as a result of ante mortem injuries.

5. The post mortem report reached Mahanagar Police Station through Senior Superintendent of Police, Superintendent of Police (Trans Gomti) and Circle Officer, Mahanagar and then Station House Officer, P.S.- Mahanagar, directed S.I., R.P.S. Kushwaha on 03.06.199 to take action after the inquiry. The Sub-Inspector was satisfied with the earlier version of the informant and on completion of investigation, first he submitted chargesheet only against Sanjay Singh on 15.10.1999 and nowhere involvement of applicant in any way in the incident was found or reported. At later stage, on 20.02.2001 after period of about one year nine months, the chargesheet No.351A of 2001 was submitted before Magistrate concerned against the applicant along with another S.P. Singh, Security Officer. The Magistrate took cognizance and issued summon to the applicant, hence the applicant has filed the present application under Section 482 Cr.P.C.

6. The case of applicant is that Sri S.P.Singh, was Secretary Officer of C.D. Secretary Network Ltd., 209 Vinay Palace, Second Floor, Ashok Marg, Lucknow at Mill and a unit of aforesaid agency was entrusted to look after the security of the Paper Mill. The matter was related to his guard and since the applicant was informed that inquest report has been prepared and police had sent the body for post mortem, therefore, the applicant was not duty bound to give further information to the police separately. It appears that a dispute arose about the payment of salary of deceased between Ramakant Yadav with Security Agency and for this reason the First Information Report on 06.07.1999 was lodged. In written report submitted by informant no allegation in respect of any offence has been levelled against the applicant. The investigation was entrusted to same S.I., R.P.S. Kushwaha and the role of Investigating Officer was not only biased against the applicant but attempts were made to settle the issue with him to which the applicant did not compromise and as a result of that the Investigating Officer misused his official power and chargesheeted the applicant in all the offences from Section 304 IPC to 468 IPC apart from Sections under 191/192 and 464 IPC, which are definition and not the substantive offences. The continuance of proceeding of Case No.2218 of 2002 against the applicant is illegal as there no legal evidence collected by I.O. in support of charge and the evidence collected clearly or manifestly do not, prima facie, make out a case for trial of any offence for which the chargesheet has been submitted.

7. On behalf of State of U.P.-opposite party no.1, a counter affidavit of Satya Prakash Yadav, Sub-Inspector, P.S. Mahanagar has been filed and it has been stated that from the evidence collected during the investigation, prima facie a case against the applicant for aforesaid offence is made out and there is joint liability against the applicant.

8. The contention of learned counsel for the applicant is that if the evidences collected by Investigating Officer are taken on their face value and accepted as true in their entirety, even then no prima facie case of any offence is made out against the applicant accused, therefore, entire proceedings of aforesaid criminal case deserves to be quashed. Further, the learned counsel for the applicant has contended that Investigating Officer has recorded the statement of witnesses namely Ramakant Yadav, Roop Narayan, Machloo Ram, S.P. Singh, Sunil Kumar, Sahjanand Giri (Baba Ramdeen), Ram Naresh Yadav and Chandra Pal during the investigation and on the basis of their statements chargesheet against the applicant and S.P. Singh, Security Officer has been subsequently submitted on 20.02.2001.

9. On behalf of the State, it has been vehemently argued that certainly there is no evidence against the applicant to make out a case of any offence punishable under Sections 304, 201, 191, 192, 418, 464, 468/120 B IPC but there was a legal obligation on part of applicant to give information of offence to the police concerned and for this reason, the present application cannot be allowed as prima face a case for offence punishable under Section 202 IPC is made out against the applicant. To appreciate the argument advanced by Shivnath Tilhari and Sri Digvijay Singh, learned AGA for the State, it appears necessary to reproduce the penal section 202 IPC which is as under:

"202. Intentional omission to give information of offence by person bound to inform.--Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both."

10. The argument advanced by learned AGA if is taken to be correct on the face of it, even then, the maximum punishment for aforesaid offence is only 6 months. The occurrence is dated 31.05.1999. The chargesheet against the applicant was submitted on 20.02.2001 after expiry of statutory period of limitation. The period of limitation as provided under Sections 468 Cr.P.C. is as under:

468. Bar to taking cognizance after lapse of the period of limitation.- (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

For trial and punishment of offence punishable under Section 202 IPC, the period of limitation is of one year as given above in Sub-Section 2(b).

11. Now the second relevant and important question in above reference is commencement of period of limitation. Section 469 Cr.P.C. makes a provision to above effect which is as under:

"469. Commencement of the period of limitation.- The period of limitation, in relation to an offender, shall commence;

(a) on the date of the offence; or

(b) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

(c) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

(2) In computing the said period, the day from which such period is to be computed shall be excluded."

12. A perusal of the aforesaid provision transpires that the limitation will commence from the next day i.e. 01.06.1999 of offence in the present case as informant came to know about the incident with his brother Jaipal Yadav on 31.05.1999.

13. In view of above, the cognizance for the offence punishable under Section 202 IPC which has not yet been taken by the Magistrate concerned is clearly barred by limitation and at later stage also the Magistrate would not be competent to proceed with against the applicant for trial of offence punishable under Section 202 IPC. On behalf of the applicant, it has been submitted that the inquest report was prepared on next date i.e. 01.06.1999 and the informant along with other witnesses participated in the process of preparation of inquest report and Panchs were of view that the deceased died due to fall in the pit within the premise of paper mill, and in view of above, it was contended by learned counsel for the applicant that the applicant was not under any legal obligation to submit any information to police and there is no intentional omission on his part.

14. During the investigation the Investigating Officer recorded the statement of witnesses namely Ramakant Yadav, Roop Narayan, Machloo Ram, S.P. Singh, Sunil Kumar, Sahjanand Giri, Ram Naresh Yadav and Chandra Pal. The statement of witnesses under Section 161 Cr.P. C has been filed by applicant along with application as well as State along with counter affidavit. A bare perusal of the statements of all the witnesses reveals that only Ramakant has stated that the Supervisor and Security Officer have some role resulting in death of Jaipal Yadav and they did not extended help to the informant. He has further stated that "इसमें MD साहब की षडयंत्र है तथा ये सब मिलकर भाई साहब के हक़ को दबा रहे है I"

The above statement reflects some dispute regarding the payment and not the participation of applicant, in any way, in commission of any offence. Admittedly, besides above statements of informant, there is no word or whisper about the involvement of applicant in commission of aforesaid offences for which he has been chargesheeted.

15. The Hon'ble Apex Court in the case of R.P.Kapoor vs. State of Punjab, A.I.R, 1960 SC 866 has held that the inherent Jurisdiction of High Court could be exercised to quash the proceedings in a proper case either to prevent the abuse of process of any court or otherwise to secure the ends of justice. The following are some categories of cases where the inherent jurisdiction could be and should be exercised to quash the proceedings:

"(i) where there was a legal bar against the institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint did not make out the offence alleged; and

(iii) where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge".

16. Further Hon'ble Apex Court in the case of State of Haryana vs. Bhajan Lal, 1992 SCC (Crl.) 426, State of Bihar vs. P.P. Sharma, 1992 SCC (Crl.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 SCC (Crl.) 283 has opined that if the allegations made in the First Information Report or the complaint even if they are taken at their face value and accepted in entirety, do not prima facie constitute any offence or make out a case against accused, then it will be a fit case to quash the First Information Report or the complaint.

17. In the case of State of Bihar (supra) in exercise of extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C., the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide. Seven (7) myriad kinds of cases wherein such power should be exercised are following as per aforesaid case:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code;

(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

18. To sum up in the last, offence under Section 304 IPC deals with punishment for culpable homicidal not amounting to murder. Culpable homicidal has been defined under Section 299 IPC which reads as follows:

"299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

There is nothing on record to say any participation of applicant in causing death of the deceased or any injuries to the deceased. Section 201 IPC deals with definition causing of disappearance of evidence of an offence or giving false information to screen offender. Section 191 IPC deals with definition of false evidence and Section 192 IPC fabrication of false evidence and the punishment of above is provided under Section 193 IPC. Similarly, Section 464 IPC also deals with making a false document and same is definition section. Section 468 IPC deals with punishment for forgery for the purpose of cheating. In the present case, there is no evidence to show making of false document for cheating to the informant. Section 120B IPC deals with punishment of criminal conspiracy. Again there is nothing on record to demonstrate that the applicant has any role in any conspiracy for causing injuries or death to the deceased. The I.O. appears to have overlooked above aspect of case or he proceeded to submit charge for some other reason best known to him.

19. In view of above discussion from the entire statement of witnesses under Section 161 Cr.P.C. available on record and as admitted by learned AGA, maximum an offence punishable under Section 202 Cr.P.C. would have been made out against the applicant provided the Investigating Officer had submitted chargesheet against the applicant for aforesaid offence within the period of one year i.e. up to 21.05.2000, therefore, continuance of proceedings against the applicant is just abuse of process because if the entire evidence and statements available on record are taken to be true on their face value even then no prima facie case against the applicant for offences punishable under Sections 304, 201, 191, 192, 418, 464, 468 and 120B IPC, for which chargesheet has been submitted, is made out.

20. In the result, the present application succeeds and is hereby allowed. The proceedings of Criminal Case No.2218 of 2002 arising out of Case Crime No.377 of 1999, under Sections 304, 201, 191, 192, 418, 464, 468 and 120B IPC, P.S. Mahanagar, District Lucknow, against the applicant, are hereby quashed.

Order Date :- 27.10.2016

A.Kr*