Balkar
Singh Vs. Jagdish Kumar & Ors [2005] Insc 117 (22 February 2005)
N. Santosh
Hegde & P.K. Balasubramanyan
WITH Criminal
Appeal No.334 of 2005 (@ SLP(crl.) No. 510 of 2004) SANTOSH HEGDE, J.
The
appellant is the complainant in FIR No. 26 dated 10.2.1998 registered with the
Police Station, Majitha in Punjab.
In the
said complaint he alleged that the respondent herein Jagdish Kumar and some
others of M/s Bhalla Kheti Store and the respondent Rakesh Kumar and others of
M/s. Bina Khad Store had committed criminal acts punishable under Section 382,
353, 506, 186 of the Indian Penal Code (hereinafter referred to as the 'IPC')
when he along with the staff had gone to check the stock register and quality
of the goods namely super phosphate sold by them. After registering the case
the concerned police authorities were investigating the same.
During
the pendency of the investigation the accused Jagdish Kumar and Rakesh Kumar
named herein above filed two separate Criminal Misc. Petitions under Section
482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code')
before the High Court of Punjab and Haryana at Chandigarh.
When
the High Court was seized of the above criminal misc. petitions, in both the
petitions a statement was made on behalf of the State that a decision has been
taken by the Government to withdraw the complaint filed in FIR No. 26 dated
10.2.1998 registered at the police station, Majitha (Punjab) for the above said
offence. Recording the said statement the High Court in two identical orders
quashed the said FIR and gave directions to the police and the learned
Magistrate not to prosecute the respective petitioners on the basis of the said
FIR. It is these two orders which are challenged before us in the above
criminal appeal.
Before
we proceed to examine the correctness of the impugned orders of the High Court
it is necessary to note certain other developments that took place during the pendency
of the quashing petition in the High Court. On the very day the complaint was
lodged in the police station, the two concerned accused sent complaints to the
State Government making certain allegations against the appellant herein who
was then the Agricultural Development Officer (Enforcement) in the Department
of Agriculture, Punjab State alleging among other things, demand of bribe and
consequent harassment meted out by him to them for non-payment of bribe.
On the
basis of the above-mentioned complaints of the respondents herein the
Government initiated certain inquiries and based on the report received on such
inquiries the opinion of the District Attorney was sought who as per his
opinion recommended to file an application under Section 321 of the Code for
withdrawal of the prosecution. The State also consulted the Addl. Public
Prosecutor who was appearing in the trial, who also recommended the withdrawal
of the prosecution.
It is
at this stage when Section 321 application was still pending, the High Court by
the impugned orders quashed the proceedings and directed to the police
authorities and the learned Magistrate not to prosecute the petitioners on the
basis of the above said FIR.
It is
also noticed from the material on record that immediately on coming to know of
the recommendation made by the authorities for withdrawal of the prosecution,
the appellant herein filed reply to the application opposing such withdrawal
and sought for permission to prosecute the case personally as a complainant in
the event of State Government was not desiring to pursue the prosecution.
In
view of the order of the stay granted by the High Court in the quashing
proceedings the proposed framing of the charge by the trial court fixed for
25th October, 2000 could not be proceeded with and in view of the impugned
order made by the High Court on 19th October, 2001 consideration of an
application under Section 321 of the Code by the trial court became futile.
It is
in this background the appellant in criminal appeal No. 964 of 2002 first
preferred the said appeal which was entertained by this court and after issuance
of notice, leave was granted on 13th September, 2002. Criminal Appeal No. 964/02 which pertains only to the
complaint against Jagdish Kumar was listed for hearing before this Court when
this Court found the technical problem in granting relief to the appellant only
as against Jagdish Kumar since the appellant had not challenged the quashing of
the criminal complainant made against Rakesh Kumar. In this fact situation,
criminal appeal No. 964 of 2002 was adjourned by 6 weeks to facilitate the
appellant to prefer a special leave petition against the order of the High
Court in Crl. M.P. No. 11127/03 pertaining to Rakesh Kumar also and when such a
special leave petition was filed the same was tagged along with the criminal
appeal No. 964 of 2002 and the said special leave petition is also before us
today for hearing.
The
learned counsel appearing for the appellant submitted the High Court without
going into the merits of the complaint that was sought to be quashed under
Section 482 of the Code erred in accepting the statement made on behalf of the
State Government and then proceedings to quash the complaint solely on the
ground that the government had decided to drop the prosecution. He further
contended that the High Court further erred in issuing a direction to the
police authorities and the learned Magistrate not to prosecute the petitioners
on the basis of the concerned FIR even before an application under Section 321
of the Code was entertained by the trial court. Therefore, the learned counsel
submitted that the impugned orders of quashing the complaint are liable to be
dismissed on the ground of non- application of mind itself. He relied upon the
judgment of this and Ors. [AIR 1987 (74) SC 877] to contend that in what
circumstances an application under Section 321 of the Code could be allowed by
the trial court and submitted that since the Magistrate did not even have an
opportunity of looking into such application, the High Court could not exercise
such power. He also submitted that the allegations made in the complaint
specifically established the various criminal acts of the respondents,
therefore, High court could not have quashed the complaint on the basis of a
proposed withdrawal of the prosecution. The learned counsel also pointed out
that there was some other inquiry conducted by the superior officers of the
police in regard to the prima facie case against the respondents and the said
officers after inquiry had reported that the allegations made in the complaint
were true.
He
also submitted that the opinion of the learned Addl. Public Prosecutor to
withdraw the complaint is basically influenced by the desires of the higher
officers of the Government and the reasons given by the learned Addl. Public
Prosecutor for withdrawing the complaint cannot be accepted without there being
a trial.
Shri Dhruv
Mehta, learned counsel appearing for the respondent-accused in criminal appeal
no. 964/02 submitted whether the complaint filed by the appellant is motivated
by co- lateral consideration and the respondent accused had already made a
complaint in this regard and it is only after making proper inquiry and seeking
proper legal advice the Government had decided to withdraw the case hence,
filing of an application under Section 321 before the Magistrate and an order
thereon being only a formality, the High Court was justified in passing the
impugned order based on the statement made by the learned counsel for the
State. He also submitted that if the High Court only had gone into the merits
of the complaint, a plain reading of the said complaint could have convinced
the High Court that there was absolutely no case made out to pursue the said
complaint hence, the petitioner before the High Court was entitled to the
quashing of the complaint on merits also. He also submitted that presuming for
argument sake that the appellant has been able to point out some error in the
judgment of the High court even then this court ipso facto would not interfere
with the erroneous orders of the High Court because exercise of powers under
Article 136 is discretionary and it is only in a case when the appellant is
able to show exceptional circumstances exist in his case and that
non-interference would cause grave injustice, then alone, this Court could
exercise its power under Article 136 of the Constitution. For this proposition,
he relied on a decision Mohammad [1999 (2) SCC 635]. The learned counsel tried
to point out the complaint in question was of the year 1998 and there has been
no progress before the trial court and assuming that the High Court is
technically wrong in quashing the complaint based on the submission of the
learned advocate for the State no injustice would be caused to the appellant.
In the facts of the present case, therefore, on the basis of the decision in Taherakhatoon
(D) by Lrs.(supra) we should refuse to exercise our discretion vested under
Article 136 of the Constitution. Though, we are in agreement with the ratio
laid down by this Court in Taherakhatoon (D) by Lrs.u (supra) we do not think
the facts of this case would persuade us to refuse relief sought for by the
appellant. As stated above, what is pending before the High court was a
quashing petition filed under Section 482 of the Code wherein the scope of
interference the High Court is quite restricted. In such a petition in our
opinion, accepting a statement made by the counsel for the State, High Court
could not have quashed the petition solely on that ground. It could only have
quashed the petition if it came to the conclusion that the complaint of the appellant
did not make out a triable case against the petitioners before it. The decision
of the Government to withdraw the prosecution is an irrelevant ground so far as
High Court is concerned to allow a petition for quashing. It is rather
surprising why further directions were issued by the High Court to the police
and the Magistrate not to prosecute the petitioners once it quashed the
complaint. The direction issued in the impugned order by the High Court in our
opinion is wholly without jurisdiction even under Section 482 of the Code. The
High Court ought to have noticed the fact that but for the grant of stay order,
there was a possibility of the trial court even framing charge against the
respondents accused as for back as on 25th October, 2000 when the case was
listed for the said purpose in which event there could have been room for
argument that even a Section 321 petition would not be maintainable.
Noticing
this error in the judgment of the High Court Shri Dhruv Mehta, learned counsel
submitted that in the interest of justice we should remand the matter back to
the High Court to consider the quashing petition on merits since according to
him the complainant did not make out any triable case at all. We do not think
that this prayer can be granted. Since we have come to the conclusion that the
impugned judgment is unsustainable in law, it must suffer the consequences. Shri
Dharuv Mehta, learned counsel then submitted that a direction may be given to
the Magistrate to dispose of the application filed by the Addl. Asstt. Public
Prosecutor under Section 321 of the Code for withdrawing the prosecution. On
the material on record it is not clear whether such an application has already
been filed or not.
Assuming
that such an application is filed, then such an application will have to be
dealt with by the trial court in accordance with law as interpreted by various
judgments of this [2002 (3) SCC 510] wherein this Court has consistently laid
down the parameters, the duty of the Law Officer and the Court in filing and
considering such an application under Section 321 of the Code. Any direction
from our side at this stage would only hinder an independent application of
mind by the concerned court if and when such application is taken up for
consideration.
Therefore,
without expressing any opinion on the merits of the complaint filed by the
appellant or the application for withdrawal filed or to be filed by the Asstt.
Public Prosecutor under Section 321 of the Code, we think it prudent to merely
quash the impugned order of the High Court and leave the parties to pursue
their remedies available in law.
The
appeal, therefore, stands allowed.
Criminal
Appeal No.334of 2005 Heard learned counsel for the parties.
There
is a delay of 680 days in preferring this petition which as noted above came to
be filed only after criminal appeal No. 964 of 2002 came up for hearing before
this Court. At that point of time itself the court felt that there was an error
on the part of the appellant not to have challenged the impugned order which
error was considered as a technical error since the complaint against the
accused in criminal appeal no. 964/02 and in the above special leave petition
was a joint complaint with a single no. 26. And what was challenged before the
High Court was also a single FIR, though by way of two petitions even the High
Court on an identical date by an identical order allowed the petitions,
quashing the complaint against both the accused. In such circumstances, though Shri
M.N. Krishnamani, learned Sr. counsel very strongly opposed the condonation of
delay, we do not think interest of justice would be served by refusing to
condone the delay, the consequence of which would be to perpetuate an illegal
order and more so, in the background of the fact when we have today quashed an
identical order arising from the complaint. In the said view of the matter we
are of the opinion, that the delay in filing the special leave petition should
be condoned and it is ordered accordingly.
Leave
granted.
Heard
learned counsel for the parties on merits.
Shri
M.N. Krishnamani, learned Sr. counsel for the respondent herein submitted that
the petitioner herein has no locus standi to file this appeal. We fail to see
how an aggrieved complainant who was a respondent before the High Court and has
suffered an adverse order, which according to us cannot be sustained; can be
prevented from agitating his grievance by way of this appeal. Hence we reject
this contention. The other arguments of the learned Sr. counsel for the
respondent in this appeal being similar to the one addressed by Shri Mehta,
learned counsel for the respondent in the above said connected appeal, we
reject the same for the very same reasons recorded herein above.
For
the reasons stated in Criminal appeal No. 964 of 2002 and the additional
reasons recorded in this appeal, this appeal also succeeds and is allowed.
Back