Parveen Amanullah v. State Of Bihar And ANR
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.75198 of 2018 Arising Out of PS. Case No.-29 Year-2014 Thana- PUNPUN District- Patna ====================================================== Parveen Amanullah Wife of-Afzal Amanullah, Resident of -133, Patliputra Colony, P.S.-Patliputra, District-Patna-800013. ... ... Petitioner/s
Versus
1.
The State of Bihar 2.
Mithilesh Kumar son of Premeshwar Dayal, Village-Kohra, Post-Tehta, P.S.- Makhdumpur, District - Jahanabad, the then Block Development Officer, Punpun, Patna.
... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Anuj Kumar For the Opposite Party/s :
Mr. Krishna Prasad Singh, Sr. Advocate Mr. Rakesh Singh Mr. Bhaskar Shankar Singh For the State : Mr. Jharkhandi Upadhyay, APP Mr. Sanjay Kumar Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL JUDGMENT Date : 24-08-2023 Heard learned counsel for the parties.
2. The petitioner has preferred the present application for quashing the cognizance order dated-02.07.2014 passed in Punpun P.S. Case No.- 29/14 by which the Judicial Magistrate has taken cognizance of offences under Sections 188, 143 of the Indian Penal Code and Section-3 of Bihar Control of the Use and Play of Loudspeaker Act, 1955 (hereinafter referred to as 'the Act') and issued summons to the petitioner.
3. The prosecution's Case, in brief, as made out from the F.I.R. is as follows:-
2/20 (i) A dharna/fast was organized under the banner of Aam Aadami Party on 06/03/2014 in Punpun.
(ii) The petitioner was one of the participants of the dharna.
(iii) The dharna was being organized without any permission.
4. It has been submitted on behalf of the petitioner that in the year 2012, the petitioner contested the Assembly Elections in Bihar and was elected to the Bihar Legislative Assembly. Thereafter, the petitioner was also appointed as a Cabinet Minister in the Bihar Government and served the electorate honestly and dutifully until resigning from her position as a Minister, as an MLA and from the Janta Dal United political party due to ideological reasons.
5. The facts and circumstances which have led to the filing of the present petition, in brief, are as follows:- (a) The petitioner has been a social activist for more than two decades, with stellar credentials in the field of Public Service, particularly in Bihar, being the convener of Humlog Trust, a non-governmental organization for promotion of peace, harmony and social progress. Besides this, the petitioner has also been involved in the Right to Information Manch and also set up 'Bihar Election Watch' during the Lok Sabha Elections in Bihar in 2004.
(b) In November 2010, the petitioner was given the
3/20 opportunity to contest the Bihar Assembly elections from the Janta Dal United Party and went on to become a Member of the Bihar Legislative Assembly from 'Sahebpur Kamal' assembly constituency. The petitioner subsequently was appointed as a Cabinet Minister in the Bihar Government (Minister for Social Welfare) and served the electorate honestly and dutifully until resigning from her position as a Minister, an MLA and a member of the JDU in early February, 2014 due to ideological reasons. (c) On 05/03/2014, the Election Commission of India announced the final dates for the Lok Sabha Elections, 2014 and the Model Code of Conduct ("MCC") came into force from the same date. The "MCC" for political parties and candidates is a set of norms evolved with the consensus of political parties. While the "MCC" itself does not have statutory backing, most of the codes of conduct within it have corresponding statutory backing in other provisions including the Indian Penal Code, 1860 and the Representation of People's Act, 1951.
6. Learned counsel for the petitioner submits that the petitioner being a social activist was a part of gathering against the longstanding problem of electricity in the locality in front of local office of Electricity Department at Punpun. The scheduled peaceful gathering was announced before the announcement of
4/20 the election schedule and as the election was just announced a day before, so the process of getting permission was very much under process, but the election was announced a day before on 05.03.14. In between on 06.03.14, the respondent No. 2 reached the spot and demanded paper regarding permission of event. As the paper works take some time, so the respondent no. 2 was asked to wait for a while, but instead of waiting, the respondent no. 2 ordered to stop the gathering, which was duly obeyed by the petitioner and the petitioner along with other persons voluntarily surrendered before the police. The petitioner was later on granted bail from the police station.
7. He further submits that the petitioner, at no point of time intended for participation in any unauthorized or illegal gathering or dharna. During her political carrier and earlier election campaign, the petitioner was never accused of any violation, which displays how particular the petitioner was in strictly adhering to the mandate of the Election Commission and other applicable laws.
8. It is submitted on behalf of the petitioner that as per the contents of the FIR, it has been alleged by the Respondent No. 2 to the Officer-in-Charge of the police station, Punpun, Patna that on 06/03/2014, he received an information at about 12:00 noon
5/20 that members of the Aam Adami Party were staging a dharna/fast in front of electricity office, Punpun and speech was being delivered. The respondent no. 2 demanded paper with regard to permission. It was told by the persons sitting on dharna that persons have been sent to Masaurhi for permission, but after waiting for half an hour, permission paper was not shown, then he stopped the dharna and on being stopped, the petitioner along with four other persons voluntarily surrendered and others fled away from the spot.
9. Learned counsel for the petitioner further submits that after conducting an investigation, the investigating authority filed a charge sheet bearing No. 10/14 dated 31/03/2014 in the Court of the learned Magistrate, Masaurhi. Upon submission of the charge sheet, the Trial Court passed order dated 02/07/2014 taking cognizance of offences punishable under Sections 188, 143 of Indian Penal Code and Section 3/9 of "the Act" and issued summon to the petitioner.
10. Learned counsel for the petitioner next submits that vide memo no.-. 11011/17 dated-24.01.17, an application by the Officer-in-Charge, Punpun Police Station was submitted before the trial court that certain legal facts have surfaced in the present matter so permission of the trial Court was sought under Section
6/20 173(8) of the Cr. P.C. for further investigation with a request to maintain status quo in the trial pending before the trial Court. On this letter, there is endorsement dated 30.01.17 of the trial Court that it has no objection if police does further investigation and also to inform the Court concerned. After the filing of memo no.- 11011/17 dated- 24.01.17 and endorsement there upon dated 30.01.17, there is nothing on record which shows that any new fact or evidence has been brought on record by the police, although the trial Court has further proceeded in the matter.
11. Learned counsel for the petitioner also submits that the submission of the charge sheet bearing no. 10/14 dated 31/03/2014, the order taking cognizance under Section 188 of the Indian Penal Code and, indeed, the very FIR are illegal from the inception, being in contravention of the clear provisions and mandate of law as contained, inter alia, in Section 195 of the Criminal Procedure Code.
12. Learned counsel for the petitioner further submits the contents of the F.I.R, the charge sheet and other material placed before the trial Court, prima facie, do not disclose the commission of any offence by the petitioner, including any offence under Section 188 of the Indian Penal Code. Further the material on record even prima facie disclose that the petitioner
7/20 has not committed any offence, nor has the petitioner committed or intended to commit any offence, under section 188 of the Indian Penal Code.
13. It is also submitted that the impugned order dated 02/07/2014 taking cognizance of offences under Sections 188, 143 of the Indian Penal Code and under Section 3/9 of 'the Act' against the petitioner is unsustainable, and has been passed without any application of mind, as mandated by the law before taking cognizance of any crime, and is contrary to the manner provided under Section 195 of the Criminal Procedure Code for taking cognizance of offences under Section 188 of the Indian Penal Code.
14. It is has been pointed out by the learned counsel for the petitioner that the letter written/complaint by the Respondent No. 2 does not contain any allegations of wrongdoing on the part of the petitioner and also does not make any mention of the order of any public authority which had been allegedly violated by the Petitioner. As such, the police grossly erred in registering an FIR against the petitioner despite the lack of any ingredients of any offence. The contents of the letter/complaint submitted by Respondent No. 2 to the police clearly show that even as per the Complainant, there was no order of any public authority which
8/20 had been violated by the petitioner. In fact, this letter dated 06/03/2014 merely states that as per the Respondent No. 2, permission had not been given. Thus, the essential ingredients necessary for an offence under 188 of the Indian Penal Code cannot be said to have been fulfilled as per this letter and the consequential FIR.
15. It is next submitted that on the basis of the contents of the information given by Respondent to the police in the letter dated 06/03/2014 (and even as mentioned in the FIR No. 29/14 dated 06/03/2014), the investigating authorities erred in registering an FIR without there being any conditions necessary for fulfilling the ingredients of Section 188 of the Indian Penal Code, 1860.
16. He further submits that Section 195 (1) read with section 2 (d) of the Cr. P.C made it absolutely clear that the trial Court acted without jurisdiction and in violation of the provisions of Cr. P.C in taking cognizance of the present case on the basis of a police report and issuing summons to the Petitioner. Further, the investigating authorities acted without jurisdiction in registering an FIR on the basis of a letter written to them by the Respondent No. 2. Thus, both the trial Court and the investigating authorities acted without jurisdiction and
9/20 authority and in complete violation of mandatory procedural law, as contained in Section 195 (1) of the Cr. P.C.
17. He also submits that Sub-section (1) of the Section 195 of the Cr.P.C. creates a further bar, in so far as it also restricts a Magistrate from accepting written complaints from any person other than the public servant concerned, who issued the concerned order, or of some other public servant to whom he (i.e., the public servant who issued the concerned order) is administratively subordinate.
18. Learned counsel for the petitioner also submits that in the present case, both the mandatory per-requisites contained in Section 195 (1) of the Cr. P.C. have been violated by the investigating authorities and the trial Court. The Ld. Trial Court has admittedly taken cognizance of a complaint on the basis of a police report, which police report, in turn, has been prepared and filed on the basis of information received from Respondent No. 2, who, besides not mentioning the details of any offence (cognizable or otherwise), is not and does not even claim to be the Public Servant who has lawfully promulgated any order (i.e., the 'concerned' public servant) nor does Respondent No. 2 claim to be an officer administratively superior to the concerned public servant and nothing has been brought on record to show his
10/20 competency under the law to make such a complaint in the first place and also in the manner in which such complaint has to be filed.
19. As such, the entire proceedings beginning from the registration of the FIR including the impugned Order dated 02/07/2014 are illegal, without the sanction of law and are therefore, liable to be quashed.
20. Learned counsel for the petitioner further submits that it is a settled position that Section 195 of the Cr.P.C. is mandatory and the non-compliance of this provision would vitiate the prosecution and all consequential Orders, Section 195(1)(a)(i) of the Code bars the Court from taking cognizance of any offence punishable under Section 188 I.P.C. or abatement or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. This provision has been carved out as an exception to the general rule contained under Section 190 of the Cr. P.C., i.e., that any person can set the law in motion by making a complaint.
21. He further submits that the law with regard to section 195 of the Cr. P.C. can be summarized to the effect that there must be a complaint by the Public Servant whose lawful order
11/20 has not been complied with and the complaint must be in writing. The provisions of Section 195 of the Cr. P.C. are mandatory. Non-Compliance of these provisions would vitiate the prosecution and all other consequential orders. The Court cannot, therefore, take cognizance of a case without such a complaint and in the absence of such a complaint; the trial and conviction will be void ab initio being without jurisdiction.
22. It is also submitted that is also a settled legal proposition that criminal law cannot be set into motion as a matter of course. The order of the trial Court summoning the accused must reflect that the learned Trial Court has applied its mind to the facts of the case and the law applicable thereto. The magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record. From the averments made above, it is apparent that the trial Court has not exercised any application of mind before taking cognizance of the matter and issued summons to the petitioner.
23. Learned counsel for the petitioner has relied upon the judgment of this Court passed in Cr. Misc. No. 39822 of 2015 on 19.10.2016 and has also relied upon the orders dated 01.08.2014
12/20 passed in Cr. Misc.No. 37822 of 2010 in the case of Smt. Rabri Devi Vs. State of Bihar and in the case of Shyam Narayan Arya Vs. The State of Bihar reported in 1997(1) BLJ 1214.
24. So far as the offence under 'the Act' is concerned, it has been contended by the learned counsel for the petitioner that the contents of the FIR further disclose that the Petitioner was not speaking or using the loudspeaker but was merely present at the scene when some other person was using the said loudspeaker. It is further submitted that the FIR (and, indeed, the charge sheet) nowhere alleges the Petitioner to have been responsible for procuring, purchasing or ever having used the loudspeaker. This is in consonance with the actual fact that the Petitioner was not present at the scene as a participant but merely as a spectator and had no role to play in organizing the event.
25. Thus, in the absence of any allegations, intention or motive against the Petitioner, no offence could even remotely be said to have been committed by the Petitioner an offence, if any, under the provisions of 'the Act' could have only been made out against the person who used or procured the loudspeaker (allegedly without permission). No such allegation is present in the FIR, nor is any such averment even indicated in the charge sheet, qua the Petitioner.
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26. Learned counsel for the petitioner also submits that Section 3 of the 'Act' begins with the following language: "No person shall use and play a loud-speaker......"
27. Thus, the Act makes culpable only the person who actually 'uses and plays' a loudspeaker in a manner prohibited under the Act. In the present case, the FIR alleges some other person to have been speaking on the loudspeaker and makes no allegation that the Petitioner, at any point, used or played the loudspeaker or arranged or procured the loudspeaker Thus, even if the contents of the allegations made in the FIR are to be construed liberally and taken at face value, no offence under Section 3 of the 'Act' can be made out against the Petitioner and the FIR as well as the impugned Order of the learned Magistrate taking cognizance of an offence under section 3 (and/or section
9) of the 'Act' was totally without application of mind to what had been alleged in the FIR itself as far as it relates to the Petitioner.
28. Mr. Krishna Prasad Singh, learned Senior Counsel appearing on behalf of the informant and learned counsel for the State have made their submissions and have submitted that the offences are made out against the petitioner.
29. I have considered the submissions of the parties.
30. The last submission of the petitioner with regard to the
14/20 offence under Sections 188 of the Indian Penal Code is concerned, the same is squarely covered by the judgment of this Court passed in Smt. Rabri Devi Vs. State of Bihar (supra) Paragraph No. 36 of the aforesaid judgment is quoted hereinbelow:- "Having seen the ambit and scope of Section 195(1) of the Cr.P.C. and the ratio laid down by the Supreme Court and this Court in the decisions, referred to hereinabove, this Court is of the opinion that the investigating authorities acted without jurisdiction in registering the FIR under Section 188 of the IPC on the basis of a letter written to them by the informant in the capacity of Revenue Karamchari. The investigation conducted by the police was also without jurisdiction. Sub-section (1) of Section 195 of the Cr.P.C. creates a further bar in so far as it also restricts the Magistrate from accepting written complaint from any person other than the public servant who issued the concerned order or of some other public servant to whom he is administratively subordinate."
31. So far as the allegations against the petitioner with regard to the offences committed under the 'Act', is concerned, in the case of Smt. Rabri Devi Vs. The State of Bihar (supra), this Court has held as follows:
"The narration in the First Information Report is conspicuously silent with respect to any such orders having been promulgated by any public servant. It would be stretching the logic a bit too far to say that during the election time model code of conduct is presumed to have been promulgated. In that view of the matter, there is nothing in the investigation papers or in the First Information Report to suggest that the petitioner had knowledge about such restraining order and that it was
15/20 deliberately violated.
So far as the violation of the provisions of Bihar Control on the Use and Play of Loudspeaker Act, 1955 is concerned, there is no allegation that it was brought at the instance of the petitioner. There is no allegation whatsoever of using any loudspeaker in the First Information Report, in the first place."
32. So far as violation of Bihar Control on the Use and Play of Loudspeaker Act, 1955 with regard to offences under Section 147 of the Indian Penal Code is concerned, this Court in the case of Shyam Narayan Arya Vs. The State of Bihar (supra) has held as follows:- "If the petitioner and those similarly situated coaccused could not be prosecuted for commission of an offence under Section 188 IPC for which alone the FIR was lodged, could they be prosecuted for an offence under Section 143 IPC. Section 143 IPC provides that whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
If the allegations contained in the written report are liberally construed in favour of the State, the petitioner could be described as member of an unlawful assembly the common object of which was to violate prohibitory orders under Section 144 of the Code. The police a S.I. was near the Mahavir temple at Patna railway Jn. and at about 12.30 pm. the accused persons who were in different groups started proceeding towards the town raising anti religious slogans in violation of the orders under section 144 of the Code.
16/20 punishable under Sec. 188 I.P.C. Since the petitioner or for that matter others similarly situated co-accused could not be prosecuted for an offence under Section 188 I.P.C. for reasons already mentioned earlier, they could not be lawfully prosecuted for offence under section 143 I.P.C. when cognizance of the offence which constituted the common object was itself not competent for want of complaint of the public servant concerned. An unlawful assembly has been defined under Section 141 of the Indian Penal Code. An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is any of the five objects mentioned therein.
On the basis of the allegations made the common object of the unlawful assembly was either to overawe by criminal force or show of criminal force any public servant in the exercise of the lawful power of such public servant or to resist the execution of any law or of any legal process. I say so because the accused persons could be said to constitute unlawful assembly if only they were resisting the execution of a lawful order promulgated by a public servant concerned under Sec. 144 of the code. Be that as it may no argument can be advanced on behalf of the State that the petitioner was liable as member of the unlawful assembly as the common object of the unlawful assembly was one other than violating the prohibitory orders under Sec 144 of the Code which was punishable as an offence under Sec. 188 IPC.
Thus even if the allegations made in the written report are taken on their face value and in their entirety no offence under Sec. 143 IPC was disclosed and cognizance of such an offence was incompetent and the criminal prosecution of the petitioner for such an offence was an abuse of the process of the Court.
17/20 under Sec 143 IPC for being member of an unlawful assembly the common object of which was to commit an offence under Sec.188 I.P.C."
33. The submission that the order of issuance of summons also suffers from non-application of mind by the learned Magistrate also finds favour in view of the law laid down by the Supreme Court in the case of Pepsi Food Ltd Vs. Special Judicial Magistrate reported in (1998) 5 SCC 749. Paragraphs No. 28, 29, 30 of the aforesaid judgment reads as follows:-
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused.
The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
29. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back
18/20 to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused". We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code.
The High Court says that the appellants could very well appear before the court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants do not make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegations. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi".
The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturers of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K.
3. The preliminary evidence on which the first respondent relied in issuing summons to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short "the Fruit Order"). It is not disputed that the beverage in question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and
19/20 that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirements is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of the manufacturer shall also be exhibited prominently on the side label on such bottle [clause (8)(1) (b)]. Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle.
It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (Wakf) v. Union of India [AIR 1965 SC 1167 : (1965) 2 SCR 192] an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act.
What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.
30. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising their jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view the High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."
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34. Taking into consideration the submissions advanced on behalf of the parties and in view of the facts and circumstances of the case, I am of the view that summons have been issued without application of mind and without following the law laid down by this Court in its earlier judgment. The Magistrate must be aware of the judgments pronounced by this Court and apply the same while issuing summons to an accused. Here, I find that the summons have been issued mechanically by a cryptic and non-speaking order and it cannot be sustained.
35. In view of the discussion above, it is held that none of the offences alleged against the petitioner are made out and the prosecution of the petitioner is illegal.
36. Accordingly, the cognizance order dated 02.07.2014 passed by the Judicial Magistrate in Punpun P.S. Case No.- 29/14 taking cognizance of the offence under Sections 188, 143 of the Indian Penal Code and Section 3 of Bihar Control of the Use and Play of Loudspeaker Act, 1955 and the entire prosecution are hereby quashed.
(Sandeep Kumar, J) Saif/- AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 25.11.2023 Transmission Date 25.11.2023