Mrinal Kant Mallik and Others vs State of U.P. and Another

S.K. Phaujdar, J.—Through this application u/s 482, Code of Criminal Procedure the applicants desired that the entire proceedings in pursuance of the F.I.R. dated 23.8.1998 u/s 498A, I.P.C. read with Section 3/4 of the Dowry Prohibition Act, relating to police station Rudrapur, district Udham Singh Nagar, be quashed. A question arose whether an investigation or an F.I.R. could be quashed in exercise of powers u/s 482, Code of Criminal Procedure or if the proper proceeding therefore would be one under Article 226 of the Constitution of India.

The learned Counsel for the applicants relied on certain decisions of the Supreme Court to say that in proper cases an F.I.R. and investigation could be quashed even in exercise of powers u/s 482, Code of Criminal Procedure in terms of the decision of the Supreme Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, On the other hand, the learned A.G.A. submitted that the Allahabad High Court had ruled in the case of A.S. Bindra, Criminal Misc. Writ Petition No. 1342 of 1997, that ''''the decision of a seven Judges Bench of this High Court in Ram Lai''s case was still a good law. The power to cause an F.I.R. could not be exercised u/s 482, Code of Criminal Procedure The learned Counsel for the applicants further relied on the decisions of the Supreme Court to indicate that even an obiter dictum of the Supreme Court would be binding on the Courts below. It is necessary to go through the decisions to come to any conclusion on the question of maintainability of the instant application. In the case of State of Haryana v. Ch. Bhajan Lal, (supra) the matter had gone up before the Supreme Court in a civil appeal against an order recorded by the Punjab and Haryana High Court in a writ petition. The High Court had, in exercise of the jurisdiction Under Article 226 of the Constitution, quashed the entire criminal proceedings inclusive of the registration of the F.I.R. and the High Court had also directed the complainant to pay costs to Ch. Bhajan Lal, who had been a Chief Minister in the State of Haryana. Allegations of corruption was leveled against Ch. Bhajan Lal and upon the complaint the Officer on Special Duty in the Chief Minister''s Secretariat forwarded it to the Director General of Police, for appropriate action and it came down to the Superintendent of Police, who had directed that a case be registered and investigation be taken up. The Supreme Court in this decision gave out the guide-lines which were to be considered before quashing an F.I.R. The Supreme Court had considered in this case the decision of the Privy Council in the case of AIR 1945 18 (Privy Council) , and detailing these guidelines in paragraph 108 of the judgment it was observed that "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 extra-ordinary power Under Article 226 or the inherent powers u/s 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". The Supreme Court had placed the extra-ordinary powers Under Article 226 of the Constitution and u/s 482 of the Code of Criminal Procedure at par without, however, indicating which of the two forums would be agitated for the proper relief. Reference was made in paragraph 98 of this judgment to an earlier decision of the Supreme Court in Kurukshetra University and Another Vs. State of Haryana and Another, . and paragraph 2 of that judgment was quoted hereunder which may again be quoted here. The Supreme Court had disapproved the quashing of an F.I.R. at a premature stage with the following observations:

"It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers u/s 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any Court in pursuance of the F.I.R. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has be exercised sparingly, with circumspection and in the rarest of rare cases."

Reference was made in the judgment of the Supreme Court in Ch. Bhajan Lal''s case to the decision of the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad (supra), in paragraph 37 of the judgment and the Supreme Court had quoted the following lines from the judgment of the Privy Council as follows:

so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved u/s 491, Code of Criminal Procedure to give directions in the nature of habeas corpus. In such a case as the present, however, the Court''s functions begin when a charge is preferred before it and not until then."

It is note-worthy that the Supreme Court did not differ from this decision of the Privy Council or the decision, as quoted above, in the case of Kurukshetra University and had not overruled the same. The learned Counsel appears to be relying on the observation at paragraph 108 of the judgment in the case of Ch. Bhajan Lal wherein Section 482, Code of Criminal Procedure has been stated in the same breath with Article 226 of the Constitution.

The learned Counsel submitted that even if it was an obiter of the Supreme Court, it will be equally binding on the Courts below including the High Court. Reliance was placed on the decision of the Supreme Court as in Sarwan Singh Lamba and others Vs. Union of India and others, . In paragraph 19 of this judgment, it was observed "Normally even an obiter dictum is expected to be obeyed and followed." References were also made to the case laws in Shenoy and Co., Represented by its Partner, Bele Srinivasa Rao Street, Bangalore and Others Vs. Commercial Tax Officer, Circle II, Bangalore and Others, ; Maj. Genl. A.S. Gauraya and Another Vs. S.N. Thakur and Another, ; Anil Kumar Neotia and Others Vs. Union of India (UOI) and Others, ; Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works (P) Ltd., and another, , to say that the decision of the Supreme Court or declaration of law by the Supreme Court is the law of the land is to be obeyed by the High Courts. The situation does not require any argument as it is known to everybody that the law enunciated by the Supreme Court is of a binding nature. The question, however, arises if in the judgment in the case of Ch. Bhajan Lal (supra), the Supreme Court had directed that powers u/s 482, Code of Criminal Procedure were to be exercised in preference to the powers Under Article 226 of the Constitution or if reliance of the Supreme Court on the two decisions, as quoted above, at paragraphs 37 and 89 rather indicates the contrary.

This question came before a Division Bench of the Allahabad High Court in A.S. Bindra v. Senior Superintendent of Police and Ors. Criminal Misc. Writ Petition No. 1342 of 1997. The Division Bench had before it the decisions of the Supreme Court recorded after the decision of a seven Judges Full Bench in the case of Ram Lai Yadav by the Allahabad High Court. The Division Bench found that "In the cases of the Supreme Court which have been delivered after the judgment of the Full Bench in Ram Lal''s case (supra), none of the Supreme Court cases considered the question whether jurisdiction of the High Court could be invoked u/s 482, Code of Criminal Procedure while a criminal case was still being investigated. The Supreme Court was, therefore, not deciding this point in any of the subsequent judgments and any casual observation that either in its jurisdiction Under Article 226 of the Constitution of India or u/s 482, Code of Criminal Procedure in a suitable case the High Court could grant relief was just an observation of the Supreme Court to indicate that the High Court could exercise its inherent power u/s 482 Code of Criminal Procedure or extra-ordinary jurisdiction under Article 226 of the Constitution to interfere in a suitable matter pending investigation". The Division Bench further went to distinguish that the observation of the Supreme Court could only mean that the powers u/s 482, Code of Criminal Procedure could be exercised in some proceedings arising out of a complaint while the matter was pending in some Court and the jurisdiction Under Article 226 of the Constitution could be exercised when the matter was still in investigation stage and had not reached the Court. The Division Bench further found "The Supreme Court, as a matter of fact, has quoted Ram Lal�s judgment of the Full Bench of the Allahabad High Court in the case of Janata Dal Vs. H.S. Chowdhary and Others, . This paragraph in the aforesaid case has been quoted only to indicate that the similar view which the Supreme Court was taking had already been taken by the High Court in the said Full Bench. As such case of Ram Lal has been given a seal of approval by the aforesaid judgment of the Supreme Court."

In view of what has been stated above, it is felt that when the judgment in Ram Lai''s, case has been approved by the Supreme Court and when the Supreme Court had not overruled or differed from the decision in the case of Emperor v. Khwaja Nazir Ahmad o r Kurukshetra University''s case (supra), a distinction could always be made between cases pending before a Court and pending investigation and while a case pending before a Court could be quashed in exercise of powers u/s 482, Code of Criminal Procedure the same may not be used to quash a matter pending investigation.

It is, accordingly, directed that the applicants may choose to file a writ petition for proper relief and he may not get the desired relief u/s 482, Code of Criminal Procedure as the matter is still at the investigation stage.

With these observations, the application stands disposed of.