Munshrif Ahmad And 5 Others vs State Of U.P. Thru. Prin. Secy. ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL APPEAL DEFECTIVE No. - 6 of 2023
 

 
Appellant :- Munshrif Ahmad And 5 Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And Another
 
Counsel for Appellant :- Santosh Kumar Kanaujia
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Subhash Vidyarthi,J.

(C.M.A. No. 1 of 2023: Application for condonation of delay.)

Heard Sri JB Singh, learned counsel for the appellants and Sri Vijay Prakash Srivastava, Addl. Govt. Advocate-I.

In view of the order proposed to be passed, issuance of notice to the respondent No. 2 is dispensed with.

Office has reported the instant criminal appeal as defective, as it is beyond limitation of 119 days as on 2.1.2022.

Learned counsel for the appellants has placed before the court a decision rendered by a full bench of this court in Ghulam Rasool Khan vs State of UP Criminal Appeal No. 1000 of 2018, decided on 28 July 2022 wherein the Full Bench has held that there will be no limitation to file an appeal against an order under the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred as '1989 act').

In view of the aforesaid decision of the Full Bench of this court, as there is no limitation prescribed for filing an appeal under section 14-A of the 1989 Act, the appeal is not time barred and the Stamp Reporter is directed to take note of the aforesaid judgment of the Full Bench.

(Order on Appeal.)

By means of the instant appeal the appellants have prayed for quashing of the summoning order dated 6.6.2022 passed by the IInd Additional Session Judge/Special Judge SC/ST Act, Lakhimpur- Kheri in Special Session Case No. 276 of 2022, State Vs. Munsarif Ahmad and Others, arising out of Case Crime No. 218 of 2022, under section- 147, 452, 323, 504, 506 of IPC and section 3(1) (Da), 3(1)(Dha), 3(2)5a of SC/ST Act, P.S.- Kotwali Sadar, District- Lakhimpur Kheri.

The Hon'ble Supreme Court in the case State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 has laid down certain guidelines for exercise of jurisdiction under Section 482 Cr.P.C. in the following words:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

a.1 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.

a.2 Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation 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.

a.3 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.

a.4 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.

a.5 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.

a.6 Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

a.7 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."

After laying down the principles for exercise of the discretionary powers under Section 482 Cr.P.C. in Bhajan Lal (supra), the Hon'ble Supreme Court proceeded to add a word of caution in the following words: -

"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

The expression "rarest of rare cases" used by the Hon'ble Supreme Court in Bhajan Lal has been explained in Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162 in the following words: -

"43. As to what is the scope of the expression "rarest of rare cases" indicated in para 103, we may only refer to the judgment of this Court in Jeffrey J. Diermeier v. State of W.B.,(2010) 6 SCC 243 wherein the law laid down by a Bench of three Judges in Som Mittal (2) v. State of Karnataka (2008) 3 SCC 574 has been referred to : (Jeffrey J. Diermeier case(2010) 6 SCC 243, SCC p. 252, para 23)

"23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. State of Karnataka(2008) 3 SCC 574. Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said : (SCC pp. 580-81, para 9)

''9. When the words "rarest of rare cases" are used after the words "sparingly and with circumspection" while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection.'"

In N. Soundaram v. P.K. Pounraj, (2014) 10 SCC 616, the Hon'ble Supreme Court has been pleased to explain the principles governing exercise of power under Section 482 in the following manner: -

"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora (2013) 10 SCC 581.]"

In Kaptan Singh vs. State of Uttar Pradesh and Others; (2021) 9 SCC 35, the Hon'ble Supreme Court was pleased to hold that while deciding an application under Section 482 Cr.P.C., the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducing the trial. The Hon'ble Supreme Court referred to its earlier pronouncements in Dineshbhai Chandubhai Patel vs. State of Gujrat; (2018) 3 SCC 104 in which it was held that "in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. In the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra; (2019) 18 SCC 191 after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C."

Confronted with the aforesaid legal position, the learned counsel for the applicants submits that he does not want to press this appeal on merit and he confines his prayer only to the extent that appellants may be permitted to surrender and move an application before the court concerned seeking bail and suitable directions may be issued that same may be heard and decided expeditiously, in accordance to law.

A seven judges Bench of this Court in the case of "Amrawati and another Vs. State of U.P.; 2004 (57) ALR 290 and Hon'ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P.; 2009 (3) ADJ 322 (SC) and in Hussain and Ors. Vs. Union of India (UOI) and Ors.; MANU/SC/0274/2017 have given various directions to criminal Courts for expeditious disposal of Bail applications. The ratio of above mentioned decisions is quite clear that, in the backdrop of Article 21 of the Constitution of India as the personal liberty of a person is at stake, the bail application should be decided, expeditiously.

In the recent judgment, the Hon'ble Supreme Court in SUO MOTO WRIT (CRL) No. (S) 1 of 2017 In RE: To issue certain guidelines regarding inadequacies and deficiencies in criminal trials vs. The State of Andhra Pradesh & Ors. vide its judgment and order dated 20.04.2021 has observed the common deficiencies which occurred in the proceedings of the criminal cases and approved "The Draft Rules of Criminal Practice 2021" which is the part of the judgment in Chapter V Rule 17 of aforesaid Rules that the application for bail in non-bailable cases must ordinarily be disposed off within a period of 3 to 7 days from the date of first hearing. If the application is not disposed off within such period, the Presiding Officer shall furnish reasons thereof in the order itself.

Further, as the Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another; (2021) 10 SCC 773 has already laid down guidelines for grant of bail, without fettering the discretion of the courts concerned and the statutory provisions governing consideration in grant of bail, no specific directions need be issued by this Court as it is expected that the court concerned will take into consideration the necessary guidelines already issued by the Apex Court.

It is trite to say that any order passed by the Hon'ble Supreme Court is binding on all Courts and there is no need for issuance of any separate direction to the Court below to follow the law laid down by the Hon'ble Supreme Court. In case, the applicants surrender and move an application for bail, the same shall be considered by the learned Court below, expeditiously, in accordance with law.

With the aforesaid observations, the appeal is disposed off.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad and the computer generated copy of such order shall be self attested by the counsel of the party concerned.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

.

(Subhash Vidyarthi, J.)

Order Date :- 6.1.2023

A.Nigam