Dr. Rajni Tiwari vs State Of U.P. And Another
2023 Latest Caselaw 10140 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- APPLICATION U/S 482 No. - 10577 of 2023
 

 
Applicant :- Dr. Rajni Tiwari
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Durga Singh
 
Counsel for Opposite Party :- G.A.,Shri Prakash Dwivedi
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Shri Durga Singh, learned counsel for the applicant and Shri Amrendra Nath Singh, learned Senior Advocate assisted by Shri Prakash Dwivedi, learned counsel for opposite party no.2 as well as learned A.G.A. Perused the record.

The applicant has invoked the plenary power of this Court by filing this application u/s 482 Cr.P.C. whereby the applicant has challenged the legality and validity of impugned charge sheet No.23/15 dated 19.01.2015 and summoning order dated 07.02.2020 in Criminal Case No.819 of 2020 (State vs. Dr. Rajni Tiwari) arising out of Case Crime No.676 of 2013, u/s 419, 420, 467, 468, 471 I.P.C., Police Station Civil Lines, District Allahabad pending in the court of learned Chief Judicial Magistrate, Allahabad.

Basic contention of learned counsel for the applicant is that for the same offence a disciplinary proceeding was also initiated by the management of the institution and the matter went up to the Vice Chancellor of Chhatrapati Sahu Ji Maharaj University, Kanpur u/s 35 of the U.P. State Universities Act, 1973, in which certain favourable observations were made with regard to applicant. Learned counsel for the applicant has laid excessive emphasis upon those favourable observations made in the above order. In fact, this was the sole argument advanced by learned counsel for the applicant. In addition to this, learned counsel for the applicant has raised number of other factual aspects of the issue which could not be assessed at this stage of Section 482 Cr.P.C.

Shri A.N. Singh, learned Senior counsel, appearing for opposite party no.2 submits that any observation made in above disciplinary proceeding works in different sphere, but where the F.I.R. was lodged and the police after due investigation have submitted charge sheet u/s 173(2) Cr.P.C. it works in the entirely different sphere. There is no overlapping in both the circles. They may have value at the relevant stage but can't said that incident do not contain any criminality in it. Since the Vice Chancellor while deciding the matter has made certain favourable orders, would not prevent or preclude the investigating agency to have probe into the matter and submits its chargesheet. However at the end of above order, the Vice Chancellor have directed to give minor punishment or warning to the applicant, which is as follows :

"26. In view of the above, by virtue of powers vested in me u/s 35 of U.P. State Universities Act, 1973, I, hereby, reject the plea of the management on the suspension and subsequent termination of Dr. Rajni Tripathi and order that she be reinstated as the principal of Prayag Mahila Vidyapeeth Degree College, Allahabad, with immediate effect. The management, however, may consider giving her a warning or any minor punishment along with all other responsible persons for their lapses after an independent inquiry."

Submission of learned counsel for the applicant is that the allegations made in the present F.I.R. are very trivial and insignificant in nature. The matter relates to year 2014-2015 and the police after holding thorough investigation have submitted report u/s 173(2) Cr.P.C. on 07.02.2020 u/s 419, 420, 467, 468, 471 I.P.C. and the summoning order was also passed on 07.02.2020.

Learned counsel for the opposite party no.2 has cited the latest judgment of Hon'ble Apex Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, whereby Hon'ble Supreme Court while discussing the scope and ambit of Section 482 Cr.P.C. have opined :

"(i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

(ii) Courts would not thwart any investigation into the cognizable offences;

(iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

(iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

(v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

(vi) Criminal proceedings ought not to be scuttled at the initial stage;

(vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

(viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

(x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

(xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

(xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

(xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

(xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

(xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

(xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

(xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

After taking the guidance of case law referred to herein above and adhering to the guidelines established therein, keeping in view the totality of facts and circumstances of the case, the Court has come to the conclusion that the instant is not a case which deserves quashing. Presently, bailable warrants are under operational against the applicant. The service proceeding/disciplinary proceeding and the criminal proceeding act in a different manner and they do not overlap with each other. The proceeding before the Vice Chancellor and the order passed by him may have some persuasive value at the relevant stage, but certainly cannot be used to scuttle the criminal proceeding at the initial stage.

However, this application stands disposed of with the direction that the court below would extend the benefit of interim bail (if the court concerned deems it fit according to the merit of each case) as contemplated in the law laid down by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. after the applicant surrenders within two weeks before the court and if her bail application is filed, the same shall be adjudicated and decided by the courts below with speaking and reasoned order, strictly in accordance with law, in the light of the judgment given by Hon'ble Apex Court in the case of Hussain and another Vs. Union of India reported in (2017) 5 SCC Page-702, relevant extract of which reads as under :-

"?.......Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time"....... "Decision of cases of under-trials in custody is one of the priority areas. There are obstructions at every level in enforcement of right of speedy trial; vested interests or unscrupulous elements try to delay the proceedings"....... "In spite of all odds, determined efforts are required at every level for success of the mission"..... "The Presiding Officer of a court cannot rest in a state of helplessness. This is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases."

To satiate speedy disposal of the cases, the courts below are issued following directions in accordance with the observations made in the case of Hussain and another (Supra):

(i)Bail applications be disposed of normally within one week :

(ii) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years.

(iii).......................................................................................................;

(iv)......................................................................................................."

The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

For the period of two weeks from today, no coercive action shall be taken against the applicant in the aforementioned case.

It is made clear that no time extension application would be entertained for extending the period of two weeks.

The ratio mentioned above is the last word for every judicial officers for abiding with the directions of the Hon'ble Apex Court. In the aforesaid scenario, it would be pertinent to refer the case of Brahm Singh and others Vs. State of U.P. and others decided on 08.07.2016 in Criminal Misc. Writ Petition No.15609 of 2016 whereby co-ordinate Bench of this Court, while taking into account the concerns of most of the counsels with regard to the long pending bail applications at lower courts' stage has expressed their anguish and concern.

In the aforesaid backdrop, learned Sessions Judge/the concerned Trial Judge is directed to ensure that the guidelines given in the case of Hussain and another (supra) as well as in Brahm Singh and others (Supra) has to be carried out in its letter and spirit, failing which an adverse inference would be drawn against the erring officers and this Court would be compelled to take appropriate action against them, if found that there is laxity in adhering the above directions.

In the event, the bail application is not decided within seven days as contemplated above, the learned Judge will have to spell out the justifiable reasons and record the same on the order sheet of such cases.

Order Date :- 6.4.2023

M. Kumar