Golu vs State Of U.P. & Another
2021 Latest Caselaw 11249 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 11
 
Case :- U/S 482/378/407 No. - 4047 of 2021
 
Applicant :- Golu
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Shrikant Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the petitioner, Sri Pradeep Tiwari, Advocate, who has filed power on behalf of opposite party no.2 and Sri S.P. Tiwari, learned A.G.A. for the State.

2. This petition under Section 482 Cr.P.C. has been filed with the following main relief:-

"It is, therefore, most respectfully prayed that this Hon'ble Court be pleased to quash the impugned order dated 02/11/2020 passed by the Additional Session Judge Court No.1, U/S 319 Cr.P.C. in Session Trial No.277/2013:- State of U.P. Vs. Ram Kushal and others related to Crime No.383/2012, u/s 302, 201 of the I.P.C., Police Station Kotwali Akbarpur, District Ambedkar Nagar."

3. This Court had earlier given time to learned counsel for the petitioner to produce case laws to the effect that even where a Criminal Revision is maintainable, a petition under Section 482 Cr.P.C. can be filed and entertained by the High Court.

4. Learned counsel for the petitioner has produced before this Court a copy of the judgment rendered by Larger Bench of three Judges in Criminal Appeal No.842 of 2016: Prabhu Chawla Vs. State of Rajasthan and another; decided on 05.09.2016. Learned counsel has read out the judgment cited. It has been submitted that the appellants therein Prabhu Chawla, Jagdish Upasane and others had filed a Criminal Appeal No.24 of 2009 where the High Court of Rajasthan had dismissed the petitions preferred by the appellants under Section 482 Cr.P.c. on the ground that they were not maintainable as the remedy under Section 397 Cr.P.C. of filing Criminal Revision was maintainable. The Division Bench which initially considered the Criminal Appeal had expressed prima facie opinion that the judgment of the High Court of Rajasthan was against the law settled by Supreme Court in Dhariwal Tobacco Products Ltd. and others Vs. State of Maharashtra and another. The Division Bench however noticed a later Division Bench judgment in the case of Mohit Alias Sonu and another Vs. State of U.P. and another, wherein apparently contrary view was taken that when an order under challenge is not interlocutory in nature and is amenable to the revisional jurisdiction, then inherent jurisdiction under Section 482 Cr.P.C. could not be exercised. In view of such conflict, the matter was placed by the Chief Justice before the Larger bench of three judges for fresh consideration on merits regarding the scope of inherent powers available to the High Court under Section 482 Cr.P.C.

5. The Supreme Court observed that the Appeals had arisen out of Misc. Petition under Section 482 Cr.P.C. having been filed by the appellants before the High Court of Rajasthan against the order dated 30.11.2006 passed by the learned Judicial Magistrate, Jodhpur in Complaint Case no.1669 of 2006, whereby it had taken cognizance against the appellants under Section 228A of the I.P.C. and summoned them through bailable warrants to face proceedings in the case.

6. The Supreme Court in paragraph-5 of the judgment rendered in Prabhu Chawla (supra) has referred paragraph-10 of the judgement rendered in Raj Kapoor Vs. State, 1980 (1) SCC 43, and observed thus:-

"5. Mr Goswami also placed strong reliance upon the judgment of Krishna Iyer, J. in a Division Bench in Raj Kapoor v. State [Raj Kapoor v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] . Relying upon the judgment of a Bench of three Judges in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in para 10 which runs as follows: (Raj Kapoor case [Raj Kapoor v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] , SCC pp. 47-48)

"10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution

'would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction'. (SCC pp. 555-56, para 10)

In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10)

'10. ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.'

I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this Court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."

7. It has been argued on the basis of judgement rendered by the Larger Bench that Section 482 Cr.P.C. starts with a non obstante clause regarding the plenary jurisdiction of the High Court which cannot be curtailed in any manner and even where remedy in other sections of the Code is provided for instance, Section 397 of the Cr.P.C. The Court had observed that there is no limitation except that of self-restraint. The policy of law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. The Court thereafter considered the facts of the case and observed that in the Criminal Appeals the facts were such that they would undoubtedly call for the exercise of the power of the High Court in accordance with Section 482 Cr.P.C., even assuming, although not accepting that invoking the revisional power of the High Court is impermissible.

8. The Larger Bench of the Supreme Court reiterated the law as enunciated in Dhariwal Tobacco Products Ltd. and others (supra) and stated that the judgment rendered in Mohit Alias Sonu and another Vs. State of U.P. and another, does not state the law correctly.

9. In view of the submissions made by learned counsel for the petitioner, this Court is of the opinion that this petition under Section 482 Cr.P.C. is maintainable against an order summoning the petitioner under Section 319 Cr.P.C. However, with regard to the merits of the case, learned counsel for the petitioner has tried to convince this Court that in terms of the observations made by the Supreme Court in Criminal Appeal NO.990 of 2021: Ramesh Chandra Srivastava Vs. State of U.P.; decided on 13.09.2021, the order summoning the petitioner as an accused to face trial along with the other accused could not have been issued by the learned trial court.

10. It has been submitted that in the judgment rendered by Ramesh Chandra Srivastava (supra), the Court observed that a satisfaction should be recorded by the learned trial court while summoning the accused who is not named in the F.I.R. that during the course of trial the evidence that was produced if goes unrebutted would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.

11. This Court has carefully perused the judgement rendered in Ramesh Chandra Sirvastava (Supra), but the observations made by Hon'ble Supreme Court in Larger Bench decision rendered in Hardeep Singh Vs. State of Punjab and others 2014 (3) SCC 92, are more apt and settles the law undoubtedly. In paragraph-106 of the case of Hardeep Singh (supra) is quoted in the judgement of Ramesh Chandra Srivastava (supra), the Supreme Court made the following observations:-

"106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if 'it appears from the evidence that any person not being the accused has committed any offence' is clear from the words "for which such person could be tried together with the accused." The words used are not 'for which such person could be convicted'. There is, therefore, no scope for the court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused."

12. It is evident from perusal of observations made hereinabove by the Supreme Court in Hardeep Singh Vs. State of Punjab and others, that the Supreme Court has emphasized the fact that the words used in section are such that it only require a satisfaction by the learned trial court to be recorded to the extent that from the evidence produced before it during the trial, such facts had come its knowledge that "such a person could be tried" together with the Appeal. The words used are not "for which such person could be convicted". The Court had observed that there is no scope for the learned trial court under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused.

13. In the case of the petitioner herein , learned counsel for the petitioner has read out in detail the statements of father of the victim and two independent witnesses, namely, Hansraj and Shri Ram before the learned trial court to show an apparent contradiction between such statements. However, this Court has perused the order under Section 319 Cr.P.C. passed by learned trial court. Learned trial court has observed that initially in the F.I.R., and in the statements made before the police, the petitioner Golu s/o Arun Kumar had been named as a co-accused. Thereafter statements of six prosecution witnesses were also made before the learned trial court. All of the six prosecution witnesses had named the petitioner as one of the three persons who were last seen with the deceased, the son of informant.

14. After recording the statement of prosecution witnesses, learned trial court made the following observations:-

"Is Prakar uprokt sakshigan ke bayan ke avlokan se pratham drashtya yah spasht hai ki mritak ko golu, pradeep tatha jayram ka bhanja pradeep dwara apne sath le jate hue vaadi ke gaon ke Shri Ram va Hans Raj ne dekha tha tatha vaadi va uski patni ko bataya bhi tha. Vaadi dwara prastut kiye gae tahreer me bhi Golu, Pradeep va gaon ke Jay Ram ka bhanja Pradeep dwara uske putra ka apaharan kar kahin le jane ka tathya ankit hai. Prastavit abhiyuktgan pratham suchna report me naamit kiye gae hain. Is prakar pratham suchna report tatha nyayalay ke samaksh saakshi P.W.1 Neeraj Rajbhar va P.W.2 Meena Devi va P.W.5 Sri Ram va P.W. 6 Hans Raj urf Hansu sabhi ke dwara Golu, Pradeep tatha Jayram ka bhanja Pradeep ki ghatna me shamil hone ka ullekh kia gaya hai. Atah Golu putra Arun Kumar, Pradeep putra Mewalal va Pradeep putra Sri Ram Yadav ko dhara 302, 201 bhartiya dand sanhita ke antargat prasangyan lete hue abhiyuktgan ki haisiyat se vicharan hetu talab kiye jane ka santoshjanak aadhar hai. Tadanusar prarthnapatra kagaj sankhya 17B svikar kiye jane yogya hai.

Aadesh

Tadanusar prarthana patra antargat dhara 319 Dand Prakriya Sanhita kaagaj sankhya 17B swikar kiya jata hai. Golu putra Arun Kumar, Pradeep putra Mewalal niwasi Gram Bhardha Bhiyura va Pradeep putra Sri Ram Yadav ko vicharan hetu abhiyuktgan ki haisiyat se jariye summon dinank 25.11.2020 ke liye talab kiya jae. Yah aadesh antrim nirnay ko prabhavit nahi karega."

15. It is evident that learned trial court had summoned the petitioner after recording a prima facie satisfaction that his name being mentioned in the F.I.R. and in the statements of prosecution witnesses, there were facts which had come to the knowledge of the trial court "for which such person could be tried together with the accused".

16. This Court therefore does not find any good ground to show interference in the order impugned in exercise of inherent powers under Section 482 Cr.P.C.

17. The petition is accordingly dismissed.

Order Date :- 25.10.2021

Rahul