Dismissed

Radhey Shyam v. State of U.P. and 2 Others

Allahabad HC10 Jul 2020A482/10103/2020

Case brief

AI extract

What is this about?

High Court application under Section 482 Cr.P.C. sought quashing of criminal proceedings for illegal electricity usage. The Court held that while a detailed reasoning order is not mandatory, the Magistrate applied his mind, and the allegations clearly constitute a cognizable offence.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; charge sheet and summoning order not quashed; criminal proceedings maintained.

Radhey Shyam Vs State of U.P. and 2… — Constitutional and Fundamental Rights | Allahabad HC (2020)

¶1

¶2

Reserved

¶3

Case :- APPLICATION U/S 482 No. - 10103 of 2020 Applicant :- Radhey Shyam Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- A.K. Mishra,Sati Shanker Tripathi Counsel for Opposite Party :- G.A.,Baleshwar Chaturvedi

¶4

Hon'ble Mrs. Sunita Agarwal,J.

¶5

Heard Sri A.K. Mishra learned counsel for the applicant, Sri Baleshwar Chaturvedi learned Advocate for the Electricity Department and learned A.G.A. for the State-respondents.

¶6

The applicant herein seeks for quashing of the charge sheet dated 6.2.2019, cognizance/summoning order dated 5.9.2019 as also for quashing of the entire proceedings of the Special Session Trial (S.S.T.) No. 1940 of 2019 (State vs. Radhey Shyam), under Section 135 of the Electricity Act, Police Station Nagla Khangar, District Firozabad arising out of Case Crime No. 12 of 2019 pending in the Court of 1^st Additional Sessions Judge, Court No. IV, District Firozabad. Only ground to challenge the summoning order as also the proceedings, cognizance of which has been taken by the competent Magistrate is that the order of the Magistrate taking cognizance under Section 190 of the Code of Criminal Procedure is a one line order and it does not disclose application of mind by the Magistrate on the allegations in the F.I.R. and the material placed before him alongwith the police report under Section 173(2) of the Code.

¶7

Reliance has been placed upon the decisions of the Apex Court in Fakhruddin Ahmad vs. State of Uttaranchal & another¹ and Ankit vs. State of U.P. & another² as also the decision of the Coordinate Bench of this Court dated 19^th April, 2019 in Avdhesh vs. State of U.P. and another³ and the judgemnt and order dated 14.10.2011 in Qavi Ahmad vs. State of U.P. & another⁴ to vehemently contend that the order of taking cognizance cannot be passed

¶8

1 2008 (17) SCC 157

¶9

2 2010 (1) JIC 432 (All)

¶10

3 Application U/S 482 No. 13583 of 2019

¶11

4 Criminal Revision No. 3209 of 2010

¶12

¶13

in a prescribed proforma or in mechanical manner. One line order passed by the Magistrate for taking cognizance on the police report dated 6.2.2019 is in clear contravention of the decisions of the Apex Court. The summoning/cognizance order as also the resultant proceedings in the trial pending before the court below are liable to be quashed. Reliance has also been placed upon the decision of the Apex Court in Mehboob Ul Rehman vs. Khazir Mohd. Tunda and others⁵ .

¶14

In order to decide the dispute raised by the applicant, in the opinion of the Court, it would be apt to first consider the ambit and scope of jurisdiction of the High Court under Section 482 Cr.P.C.

¶15

The Apex Court in the case of Vineet Kumar and others vs. State of Uttar Pradesh and another⁶ as also in State of Karnataka vs. M. Devendrappa and another⁷ has held that Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It has been considered therein that the Apex Court time and again while examining the scope of jurisdiction of the High Court under Section 482 Cr.P.C. has held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Reference may be made to paragraph '7' of the decision of the Apex Court in State of Karnataka vs. L. Muniswamy and others⁸ .

¶16

In the State of Karnataka vs. M. Devendrappa⁷ , it was held that the Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice.

¶17

5 2015 (12) SCC 420

¶18

6 2017 (13) SCC 369

¶19

7 2002 (3) SCC 89

¶20

8 1977 (2) SCC 699

¶21

7 2002 (3) SCC 89

¶22

¶23

Inherent jurisdiction under Section 482 though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in that section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice.

¶24

In State of Haryana and others vs. Bhajan Lal and others⁹ , the Apex Court has elaborately considered the scope and ambit of Section 482 Cr.P.C. in the context of quashing the proceedings in criminal investigation. After noticing earlier decisions along the same line, the Apex Court enumerated certain categories of cases by way of illustration where power under Section 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice.

¶25

Relevant paragraph '102' of the said report is reproduced as under:-

¶26

“ 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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

¶27

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and

¶28

9 1992 Supp (1) SCC 335

¶29

¶30

accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

¶31

(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.

¶32

(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.

¶33

(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.

¶34

(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.

¶35

(6) 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.

¶36

(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.”

¶37

As far as the exercise of power by the Magistrate under Section 190 Cr.P.C. is concerned, there is no dispute about the fact that though the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it is imperative that he must have taken notice of the accusations and applied his mind to the

¶38

¶39

allegations made in the police report and the material filed therewith.

¶40

It is held in Fakhruddin Ahmad¹ that “taking cognizance of an offence” by a Magistrate does not involve any formal action, but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence.

¶41

Having considered the earlier judicial pronouncements pertaining to the field, it was held in paragraph '14' as under-

¶42

“ 14. The expression “cognizance” is not defined in the Code but is a word of indefinite import. As observed by this Court in Ajit Kumar Palit Vs. State of West Bengal (AIR 1963 SC 765):

¶43

“19 ...... The word 'cognizance' has no esoteric or mystic significance in criminal law or procedure. It merely means--become aware of and when used with reference to a Court or Judge, to take notice of judicially”.

¶44

Approving the observations of the Calcutta High Court in Emperor Vs. Sourindra Mohan Chuckerbutty [ILR (1910) 37 Cal 412], the Court said that “taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.”

¶45

In Ankit² considering the decisions of the Apex Court along the line, it was observed in paragraph '10' as under:-

¶46

“ 10. …...xxxxxxxxx....... Although as held by this Court in the case of Megh Nath Guptas & Anr V State of U.P. And Anr, 2008 (62) ACC 826, in which reference has been made to the cases of Deputy Chief Controller Import and Export Vs Roshan Lal Agarwal, 2003 (46) ACC 686 (SC), UP Pollution Control Board Vs Mohan Meakins, 2000 (2) JIC 159 (SC): AIR 2000 SC 1456 and Kanti Bhadra Vs State of West Bengal, 2000 (1) JIC 751 (SC): 2000 (40) ACC 441 (SC), the Magistrate is not required to pass detailed reasoned order at the time of taking cognizance on the charge sheet, but it does not mean that order of taking cognizance can be passed by filling up the blanks on printed proforma. At the time of passing any judicial order including the order taking cognizance on the charge sheet, the Court is required to apply judicial mind and even the order of taking cognizance cannot be passed in mechanical

¶47

2 2010 (1) JIC 432 (All)

¶48

1 2008 (17) SCC 157

¶49

¶50

manner. Therefore, the impugned order is liable to be quashed and the matter has to be sent back to the Court below for passing fresh order on the charge sheet after applying judicial mind.”

¶51

Considering the above judicial pronouncements, it is evident that inherent jurisdiction under Section 482 Cr.P.C. cannot be invoked by the High Court to quash the criminal proceeding simply on the ground that the Magistrate has not assigned reason(s) for taking cognizance on the police report. The High Court has to satisfy itself that the allegations in the F.I.R. and the material placed before the Magistrate are such that allowing the proceeding to continue would be an abuse of the process of the Court or to meet the ends of justice the proceeding ought to have been quashed.

¶52

As far as the question as to whether the Magistrate ought to have taken cognizance of the offence or not, it would depend upon the circumstances of the particular case.

¶53

In the light of the above, when this Court examines the facts of the instant case, it is found that the first information report had been lodged on the allegations of use of electricity by taking illegal connection from the main line through an electric wire and that the petitioner was using electricity in the Petrol Pump premises without any electric connection in his name or anybody else with respect to the said premises. The allegations in the first information report are categorical regarding commission of a cognizable offence under Section 135 of the Electricity Act, 2003. The police had submitted charge sheet after investigation and placed material before the Magistrate to substantiate the allegations in the F.I.R.

¶54

In view of the above, the Magistrate cannot be said to have acted without application of mind though the order of taking cognizance does not disclose reasons for his action. This Court does not find any justification in the submission of learned counsel for the applicant to quash the charge sheet on the mere assertion that the Magistrate has taken

¶55

¶56

cognizance without disclosing any reason in the order impugned.

¶57

The decisions of this Court relied upon by the learned counsel for the applicant for quashing of the charge sheet are on the individual facts and circumstances of the said case and are distinguishable.

¶58

In view of the above discussion, the application under Section 482 is found devoid of merits and hence dismissed .

¶59

Order Date :- 10.7.2020 Brijesh

¶60

(Sunita Agarwal, J.)

Radhey Shyam v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Radhey Shyam v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Saleem Zuberi Vs State of U.P. and Anothers

Amit Sharma Vs State of U.P. and Anothers

Naresh Saini Vs State of U.P.

Munshi Lal and Another Vs State of U.P. and Another

Ravi Kumar Vs State of U.P.

Imanuddin Vs State of U.P.