Banwari Lal vs State of U.P.

Akhtar Husain Khan, J.—Present revision has been filed by revisionist Banwari Lal u/s 397/401 Cr.P.C. against order dated 5.2.2009 passed by learned Additional Sessions Judge, Court No. 2, Ballia in S.T. No. 216 of 2004 (State of U.P. v. Brijraj Meena and others) under sections 147, 148, 323, 395, 384, 297, 201/120-B, 109, 302, 218, 175, 177, 220, 342, 343, 193, 504, 506 I.P.C. and section 5 of the Explosives Substances Act, Police Station Bheempura, District Ballia, whereby he has allowed the application No. 446-Kha moved jointly by the Assistant District Government Council, Ballia and the Prosecution Officer of C.B.C.I.D. and has summoned the revisionist accused Banwari Lal u/s 319 Cr.P.C. for offences punishable under sections 147, 148, 323, 395, 384, 297, 201/120-B, 109, 302, 218, 175, 177, 220, 342, 343, 193, 504, 506 I.P.C. and section 5 of the Explosives Substances Act. I have heard learned Counsel for the revisionist as well as learned A.G.A. for the State of U.P. I have perused the impugned summoning order and had gone through the record of the case.

Learned Counsel for the revisionist has contended that the impugned order passed by learned Additional Sessions Judge is wholly illegal and perverse. Learned Counsel for the revisionist has further contended that charge-sheet has been submitted by C.B.C.I.D. against revisionist in this very crime whereupon learned Chief Judicial Magistrate took cognizance and registered Case No. 2218 of 1996. Being aggrieved by the summoning order passed by learned Chief Judicial Magistrate, the revisionist accused filed Criminal Misc. Application u/s 482 Cr.P.C. No. 2905 of 1996 with prayer to quash the proceedings of Case No. 2218 of 1996 (State of U.P. v. Brij Raj Meena and others). This petition u/s 482 Cr.P.C. was allowed by this Court vide order dated 9.2.2000 and proceedings of Case No. 2218 of 1996 pending in the court of Chief Judicial Magistrate, Ballia was quashed. The said order dated 9.2.2000 passed by this Court u/s 482 Cr.P.C. is still operative and has not been set aside either by the Hon''ble Supreme Court or by this Court. Therefore, in view of this order dated 9.2.2000 the impugned order passed by learned Chief Judicial Magistrate, Ballia u/s 319 Cr.P.C. is against law and without jurisdiction. Therefore, revision should be allowed and impugned order passed by learned Additional Sessions Judge should be set aside.

Learned A.G.A. has supported the impugned order passed by learned Additional Sessions Judge. He has contended that this Court has passed the said order dated 9.2.2000 u/s 482 Cr.P.C. on the basis of earlier order dated 5.1.2000 passed by it in Criminal Misc. Application No. 2558 of 1996 (Brij Raj Meena v. State of U.P.) u/s 482 Cr.P.C., but the said order dated 5.1.2000 passed by this Court in said petition of Brij Raj Meena has been set aside by Hon''ble Supreme Court vide order dated 22.3.2001 passed in Criminal Appeal No. 322 of 2001 (National Human Rights Commission through Assistant Registrar (Law) v. Brij Raj Meena, I.P.S. and State of U.P.). Therefore, the aforesaid order dated 9.2.2000 passed on application moved by revisionist-accused u/s 482 Cr.P.C. shall be deemed to have no effect in the eyes of law. Therefore, in view of above order dated 22.3.2001 passed by Hon''ble Supreme Court the impugned order passed u/s 319 Cr.P.C. is not against law.

Learned A.G.A. has further contended that on the basis of evidence collected by the investigating officer there appears sufficient ground for proceedings against revisionist for the aforesaid offences and there is no sufficient ground for interference by this Revisional Court.

I have considered submissions made by both parties.

Admittedly, C.B. C.I.D. after investigation submitted charge-sheet against the revisionist alongwith other co-accused whereupon learned Chief Judicial Magistrate took cognizance and registered case No. 2218 of 1996 and summoned revisionist accused alongwith other accused. It is also admitted by both parties that revisionist-accused, being aggrieved by summoning order passed by learned Chief Judicial Magistrate, filed Criminal Misc. Application u/s 482 Cr.P.C. No. 2905 of 1996 with prayer to quash against him the proceedings of said criminal case No. 2218 of 1996, State of U.P. v. Brij Raj Meena and others under sections 147, 148, 323, 395, 384, 297, 201/120-B, 109, 302, 218, 175, 177, 220, 342, 343, 193, 504, 506 I.P.C. and section 5 of the Explosives Substances Act, Police Station Bheempura, District Ballia pending in the Court of Chief Judicial Magistrate, Ballia. It is also admitted by both parties that the said petition filed by the revisionist-accused u/s 482 Cr.P.C. was allowed by this Court vide order dated 9.2.2000 and this Court held in its order dated 9.2.2000 that Application No. 2558 of 1996 moved by co-accused Brij Raj Meena u/s 482 Cr.P.C. has been allowed vide order dated 5.1.2000 passed by this Court. Therefore, the petition moved by revisionist-accused u/s 482 Cr.P.C. should also be allowed for reasons recorded in the said application No. 2558 of 1996 moved by co-accused Brij Raj Meena u/s 482 Cr.P.C.

In view of above this Court vide order dated 9.2.2000 allowed petition u/s 482 Cr.P.C. moved by the revisionist-accused and quashed the proceedings of case No. 2218 of 1996 pending in the court of Chief Judicial Magistrate against the revisionist-accused.

Perusal of the order dated 5.1.2000 passed by this Court in Criminal Misc. Application No. 2558 of 1996 (Brij Raj Meena v. State of U.P.) shows that this petition u/s 482 Cr.P.C. was moved by co-accused Brij Raj Meena for quashing charge-sheet and proceedings initiated on the basis of the said charge-sheet. Admittedly, Criminal Appeal No. 322 of 2001 (National Human Rights Commission through Assistant Registrar (Law) v. Brij Raj Meena and State of U.P.) was filed before Hon''ble Supreme Court against the said order dated 5.1.2000 passed by this Court on the petition of co-accused Brij Raj Meena and said appeal was allowed by Hon''ble Supreme Court vide order dated 22.3.2001. In its order dated 22.3.2001 the Hon''ble Supreme Court has held that "so far as the question of applicability of section 197 is concerned, the said provision has no application at that stage of investigation and filing of charge-sheet cannot be quashed on the ground that section 197 applies. Section 197 only prohibits Magistrate from taking cognizance of an offence, if the pre-conditions therein are attracted to the facts and circumstances of the given case."

In view of above observation, the Hon''ble Supreme Court has allowed the aforesaid Criminal Appeal No. 322 of 2001 and has set aside the order dated 5.1.2000 passed by this Court on the petition of co-accused Brij Raj Meena.

Perusal of the order dated 9.2.2000 passed by this Court on the application of revisionist-accused moved u/s 482 Cr.P.C. shows that revisionist-applicant has challenged proceedings of aforesaid case No. 2218 of 1996 (State of U.P. v. Brij Raj Meena and others) pending in the Court of Chief Judicial Magistrate, Ballia against the petitioner on the ground of bar provided by section 197 Cr.P.C. In its order dated 9.2.2000 passed on the said application of revisionist-accused moved u/s 482 Cr.P.C. this Court held that Shri Brij Raj Meena whose petition was allowed was posted as Superintendent of Police, Ballia on the date of incident and the revisionist-accused was also posted as Deputy Superintendent of Police, Ballia at the time of the occurrence. Therefore, for reasons recorded in order dated 5.1.2000 passed in Criminal Misc. Application No. 2558 of 1996 moved by co-accused Brij Raj Meena, the then Superintendent of Police, Ballia the petition moved by revisionist-accused is also fit to be allowed.

It is apparent from the record and order dated 9.2.2000 passed by this Court on application moved u/s 482 Cr.P.C. by revisionist-accused that proceedings of case No. 2218 of 1996, State of U.P. v. Brij Raj Meena and others, pending in the court of Chief Judicial Magistrate, Ballia was challenged by revisionist-accused on the ground of bar provided by section 197 Cr.P.C. in taking cognizance by Magistrate, whereas from the facts mentioned above it is apparently clear that co-accused Brij Raj Meena has moved application u/s 482 Cr.P.C. to quash charge-sheet and proceeding started thereupon on the ground of bar u/s 197 Cr.P.C. Thus there is distinction between the case of co-accused Brij Raj Meena and that of revisionist-accused.

From the discussions made above, it is apparent that the revisionist-accused has challenged cognizance taken by Magistrate on the ground of bar provided by section 197 Cr.P.C. and Hon''ble Supreme Court has also clearly held in its aforesaid order dated 22.3.2001 that bar of section 197 Cr.P.C. prohibits Magistrate from taking cognizance of an offence, if the pre-conditions taking cognizance of an offence are attracted to the facts and circumstances of the case.

It is also relevant to mention that no appeal was filed against the order dated 9.2.2000 passed on the application of revisionist-accused moved u/s 482 Cr.P.C. and this order passed by this Court is still in existence.

For reasons mentioned above, it is apparent that on the basis of order dated 22.3.2001 passed by Hon''ble Supreme Court in Criminal Appeal No. 322 of 2001 preferred against order dated 5.1.2000 passed by this Court u/s 482 Cr.P.C. on the application of co-accused Brij Raj Meena the order dated 9.2.2000 passed by this Court on the application of revisionist-accused moved u/s 482 Cr.P.C. may not be deemed to have been set aside or to be ineffective. The said order dated 9.2.2000 passed by this Court has binding effect upon the Magistrate and the subordinate Court.

In the case of Radhey Sham Mishra v. State of U.P. 1986 (27) ACC 247, this Court has held that the power u/s 319 Cr.P.C. is not exercisable in respect of a person, who was an accused but later has been discharged.

In the case of Vishwanath and Others Vs. The State, the Rajasthan High Court has held that cognizance against accused once discharged cannot be taken u/s 319 Cr.P.C. The accused who were discharged were accused in the case and when once a person is accused, he is out of the ambit of section 319 Cr.P.C. which specifically says that the Court can proceed against a person not being accused. Person may be accused at any stage of the proceedings and after discharge he does not lose that character.

Admittedly, sanction for prosecution of revisionist-accused has not been yet granted.

Therefore, in view of the order dated 9.2.2000 passed by this Court on the application moved by revisionist-accused u/s 482 Cr.P.C. impugned summoning order passed by the trial court u/s 319 Cr.P.C. is against law. Therefore, I am of the view that this revision should be allowed and the impugned order passed by Additional Sessions Judge u/s 319 Cr.P.C. should be set aside.

It appears just to clarify that the prosecution is free to again institute the prosecution against the revisionist after obtaining sanction required by section 197 Cr.P.C. In view of above, the revision is allowed and the impugned order dated 5.2.2009 passed by learned Additional Sessions Judge, Court No. 2, Ballia u/s 319 Cr.P.C. is set aside with observation that the prosecution is free to again institute the prosecution against the revisionist-accused after obtaining sanction required by section 197 Cr.P.C.