- (1.) KHEM Karan, J. This application under Section 482 of Crpc has been filed for quasning the FIR (Annexure-1), lodged by one Sri Vipin Bihari on 22-6-2000 at 3. 45 with Police Station Ramkot of District Sitapur against the applicants in which it has been alleged that on 17-6-2000 at 5. 30 p. m. while the informant was near a polling station established for purpose of holding Panchayat Election; that these accused came and started abusing him and when the informant moved to his house, the accused started pelting stones at the house of Vipin Bihari and the accused Devi Sahai fired country made pistol, with a view to kill him. It was also said in tins FIR that the informant ran to his rescue, inside his house and in the meantime many villagers such as Prem Nath, Patari and Dadheej reached the spot and thereupon, the accused fled away, abusing and threatening the informant. The averments made in the petition are that FIR is totally false and concocted and this has been lodged to wreck vengeance on account of election enmity.
(2.) THE learned counsel for the State has raised a preliminary objection as against the maintainability of this applica tion under Section 482 of Crpc. His objec tion is based on a Division Bench Judg ment of this Court in Puttan Singh v. State of U. P. , reported in ACC 1987 (24), Page 268 which was subsequently endorsed by seven Judges Bench of this Court, in Ram Lal Yadav v. State of U. P. , ACC 1989 (26), Page 181, 1989 JIC 177 (All) (FB) and dictum in Ram Lai Yadav's case was fol lowed in Dal Beer Singh and others v. S. H. O. Bhozpur, District Ghaziabad. 1999 (1) JIC 883 (All) Merinal Kant Mallik and others v. State ofu. P. and another 1993 JIC Page 151; Ashok Kumar Singh and others v. State of U. P. and others, Criminal Law Jour nal 1993 Page 2083 ; Bhopal and others v. State of U. P. and others 1997 JIC 95 (Al lahabad ). His contention is that petition under Section 482 of Crpc, for quashing the FIR during the course of the investiga tion is not maintainable as against it, the contention of Sri Abid Ali, the learned counsel for the petitioners is that the law laid-down in Ram Lai Yeadav's case (supra) is no longer a good law, in view of the subsequent decisions of the Apex Court, in State of Hariyana v. Bhajan Lal, 1992 S. (Criminal) Page 426,1990 (2) JIC 997 (SC) Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others, (1998) 5 Supreme Court cases, Page 749; Mary Angel and others, v. State of Tamil-nadu (1999) 5 Supreme Court Cases, Page 209 ; 1999 (2) JIC 330 (SC) G. Sagar Suri and another v. State of U. P, AIR 2000 SC 754; 2000 (2) JIC 136 (SC) Sunil Kumar v. Mis Escorts Yamaha Motors Ltd. and others, AIR 2000 Supreme Court, Page 27. Learned counsel for the petitioners has also referred to a decision dated 11-5- 2000, given by a learned Single Judge of this Court, in Ram Kumar and others v. State of U. P. in Criminal Misc. Case No. 450 of 2000. According to him, the learned Judge has ruled that since seven Judges decision in Ram Lai Yadav's case has been referred to a larger Bench of nine Judges and since Hon'ble the Apex Court has categorically said in various decisions that the High Court can, in exercise of its in herent powers under Section 482 of the Code of Criminal Procedure quash FIR or stay the arrest, pending the investigation, o it cannot be said that such a petition for quashing an FIR is not maintainable under Section 482 of the Code. I have heard Sri Abid Ali, the learned counsel for the petitioners and Sri Janardan Singh, the learned counsel for the State, on this preliminary point and have also heard them on merits of this petition. I do not propose to go at length. The only point that crops up for considera tion is whether the law laid down in Ram Lai Yeadav's Case, on the point that a petition for quashing the FIR or for stay ing the arrest, during the investigation is not maintainable under Section 482 of the Code, still holds the field or stands super seded by any decision of the Apex Court.
(3.) EARLIER to the decision in Ram Lai Yadav's case, there was a Division Bench decision of this Court in Puttan Singh v. State of U. P, ACC 1987 (24) Page 268, where the view taken was that the police had unfettered power of investigation and the Court has no powers under Section 482 of Crpc to interfere with the same and the functions of the Courts would start only after submissions of the result of the inves tigation. A Full Bench of this Court, how ever, took slightly a different view in Prashant Gaur v. State of U. P. 1988 (25) ACC, Page 276, and ruled: (1 ). Investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government. It is only in the rarest of rare cases, and that too, when it is found by the Court that the FIR and the investigation over a reasonable length of time, do not disclose the commission of a cognizable offence, or any offence of any kind, that the High Court may, under Sec. 482 of the Code interfere with the investigation. (2 ). Under Section 482 of the Code, the High Court may not direct the stay of arrest, during the investigation, except for a limited period. On a reference by a learned Single Judge, a seven Judges Bench was con stituted, to resolve the controversy that arose on account of the aforesaid two decisions, one in Puttan Singh's case and the other in Prashant Gaur's case. This larger Bench of seven Judges, after refer ring to the law laid-down by the Privy Council in the case of Emperor v. Khwaja Nazir Ahmad AIR 1945 Privy Council, Page 18 and the Apex Court in State of West Bengal v. S. N. Basak, AIR 1968 Supreme Court, 447, S. N. Sharma v. Bipin Kumar Tewari AIR 1970,786, Lehan Singh v. Delhi Administration AIR 1974 SC 1146, Kurukshetra University v. State of Haryana AIR 77 SC 2229, State of Binar v. A. C. Saidanna 1980 ACC 279 (SC), State of West Bengal v. Sampat Lal 1985 (22) ACC 206 (SC), State of West Bengal v. Swapan Kumar AIR 1982 SC 949 and R. P. Kanpur v. State of Punjab AIR 1960 SC 866, ruled: (l ). The High Court has no inherent power under Section 482 of Crpc to inter fere with the investigation by the police. (2 ). The High Court has also no in herent power under Section 482 of Crpc to stay the arrest of an accused, during the investigation. (3 ). The Full Bench in the case of Prashant Gaur's case does not laid down the correct law and is overruled. (4 ). If the FIR does not disclose the commission of an offence, the investiga tion on the basis of such a report is liable to be quashed under Article 226 of the Con stitution and not in the exercise of the inherent power of the High Court under Section482ofcrpc. (5 ). It is not possible, desirable or expedient to lay down any ineflexible rule which would govern the exercise of the inherent power. 8. Let us see whether the proposition of law as enunciated in Ram Lai Yadav 's case (supra), still holds the filed or is no longer a good law, in view of the decisions of the Apex Court, cited by by Sri Abid Ali. The first case cited by Sri. Abid Ali is State of Haryana and others v. Bhajan Lal (supra ). It appears that on the complaint presented by Dharam Pal, S. H. O. registered one FIR against Bhajan Lal under Sections 161 and 165 of IPC and under Section 5 (2) of the Prevention of Corruption Act and the investigation com menced. Bhajan Lal filed a petition under Sections 226 and 227 of the Constitution of India, seeking issuance of writ or certiorari quashing the FIR and also for a writ of prohibition, restraining the State of Haryana and others from further proceed ings with the investigation. The High Court of Punjab and Haryana granted ex-parte stay which was subsequently made absolute. Finally, the Hon'ble High Court of Punjab and Haryana came to the con clusion that the allegation did not con stitute a cognizable offence for commenc ing lawful investigation and so granted relief. It was in these circumstances that the matter went to the Apex Court. The Apex Court said that the following were some of the illustrations, where the High Court could, in exercise of its extra-ordi nary powers under Article 226 or in the inherent powers under Article 482 of Crpc quash the FIR or pass suitable or ders to prevent the abuse of the process of any Court or otherwise to secure the ends of justice: (1) Where the allegations made in the first information report or the com plaint, even if they arc taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offencer justifying an inves tigation by police officer under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Sec tion 155 (2) of the Code. (3) Where the uncontroverted al legations 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. (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 con templated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and in herently improbable, on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accuscd. (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 con cerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously in stituted with an ulterior motive for wreak ing vengeance on the accused and with a view to spite him due to private and per sonal grudge. 9. It is clear from the facts of the case that the point, whether an FIR could be quashed or arrest could be stayed under Section 482 of the Code, was neither raised nor decided. Moreover, from the illustra tions noted above, it is again clear that their Lordships were dealing with the FIR and Criminal proceedings pending in a Court, and so were referring to extra-ordi nary powers under Art. 226 and inherent powers under Section 482 of the Code. In Pepsi Foods Ltd. (supra), a criminal complaint alleging commission of offence under Section 7/16 of Food Adulteration Act, 1954, was filed before a Magistrate. After recording preliminary evidence, the Magistrate passed orders, summoning Pepsi Foods Ltd. and others and thereupon they filed a writ petition under Art. 226 of the Constitution before this Court, seeking writ of prohibition, or a writ, order or direction in the nature of prohibiting the Spl. Judicial Magistrate to proceed with criminal case No. 699 of 1994 and for a writ for quashing the proceedings of the criminal case. This Court refused to entertain the writ petition on the ground that the petitioners accused could move the learned Magistrate, for their discharge under Section 245 of Crpc It was also said by this Court that it was not possible at that stage to say that the allegations in the complaint were so absurd and inherently improbable on the basis of which no pru dent could ever reach a just conclusion that there existed no sufficient ground for proceedings against the accused. It was in these circumstances that the matter reached the Apex Court. After referring to State of Haryana v. Bhajan Lal. The Apex Court said: "under Article 227 of the Constitution of India the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law, by the inferior Courts and to see that the stream of administration of jus tice remains clean and pure. The power con ferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. . . . . . " "nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is spe cial procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief. Section 482 of the Code or Article 227 may have to be resorted to for cor recting some grave errors that might be com mitted by the subordinate Courts. . . . . " It was also said in para 29: "the Magistrate can discharge the ac cused 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. . . . . . " 10. It is clear that the questions whether FIR of cognizable offence could be quashed or investigation could be inter fered with or arrest of an accused, pending investigation could be stayed, in exercise of the powers under Section 482 of the Code, were neither raised nor decided in Pepsi Foods Ltd. That case arose out of a criminal proceedings, instituted on the basis of a criminal complaint.- In Mary Ante's case (supra), after a preliminary investigation the police had submitted a charge-sheet in the Court against appellants A-l to A-6 under Sec tions 498-A, 406,420,315 of IPC and Section 3/4 of Dowry Prohibition Act, 1961. The case was committed to the Court of Sessions. It was at that stage that some of the accused filed an application under Sec tion 227 of Cr. P. C. for their discharge and the same was allowed. Against that order, complainant filed a criminal revision No. 442 of 1999 before the High Court of Madras and the High Court allowed the same vide its order dated 9-7-1993 and set-aside the order of discharge. The learned Session Judge framed charges against accused Nos. 3 to 6. The accused filed a criminal revision before the High Court against framing of the charges. The High Court of Madras dismissed the same and imposed costs of Rs. 10,000/- on each of the appellants, to be paid to the informant (complainant ). It was this order of the High Court which was challenged before the Apex Court in the said case. The Apex Court held: "section 482 Cr PC stands independently from the other provisions of the Code and it expressly saves the inherent powers of the High Court. Therefore, to prevent abuse of the process of the Court or otherwise to secure the ends of justice, the High Court is empowered to pass "such order" which may include order to pa y costs to the informant (complainant) and the language of the Section does not in terms place any fatter. This power is not conditioned or controlled by any other Section nor is cur tailed by any provisions which empower the Court to award costs. " 11. The appeal was dismissed by the Apex Court, holding that the High Court had power to impose costs in appropriate cases, under Article 482 of the Code. The question like one before me, was not before the Apex Court in the said case the main discussion was confined to the ques tion whether the High Court could, in exercise of its powers under Section 482 of the Code, imposed a cost on applicant. Ram Lal Yadav's case was not referred to nor was necessary in the facts and cir cumstances of the case. In Sunil Kumar case, (supra) the order of Delhi High Court, quashing the FIR was under challenge before the Apex Court. Relying on Bhajan Lal's case (supra), the learned counsel for the appel lants contended that since the assertions made in the FIR constitute a cognizable offence and so the High Court should not have quashed the same under Section 482 of the Code. The Apex Court refused to interfere with the order of the High Court on the facts and circumstances of the case and especially in view of the fact that FIR had been lodged to preempt the filing of the criminal complaint 4, against the informant under Section 138 of the Negotiable Instru ments Act. This much is clear that it was not the question before the Apex Court whether FIR could be quashed in exercise of the powers under Section 482 of the Code. No doubt, on the facts and circumstances of the case, the Apex Court refused to interfere with the order of the High Court by which it quashed the FIR in exercise if its in herent power. G. Sagar Suri's case (supra) had the following facts, the accused had filed an application under Section 482 of the Code before the High Court, of quashing the pending criminal proceedings. After in vestigation the police had submitted a charge-sheet in the Court of Chief Judicial Magistrate. The High Court rejected the application under Section 482 of Crpc and against that order the accused had filed the said appeal before the Apex Court. It has been held that the jurisdic tion under Section 482 of the Code has to be exercised with a great care and the High Court has to see, whether the criminal proceedings pending in a subordinate Court, amount to abuse of in the process of the Court and if it finds that the same are nothing, but the abuse of the process of the Court, it can quash the proceedings under Section 482 of Crpc. Whether investiga tion could be interfered with under Sec tion 482 of Crpc was not under discussion before the Apex Court in the said case. 12. But then the contention of Sri Abid Ali is that the observations of the Apex Court in Bhajan Lal's and Pepsi Foods Limited's case, to the effect that the inherent powers of the High Court have no limit or the High Court can, in exercise of its powers of superintendence under Ar ticle 227 of the Constitution or in exercise of its inherent powers under Section 482 of the Code, quash the FIR or a criminal proceeding in certain cases, even if taken to be obiter dicta has a binding force under Article 141 of the Constitution of India, and therefore, should be taken to have ruled, contrary to the law laid-down in Ram lal Yadav's case. He has cited in L. Deep Chandra v. Lala Raghuraj AIR 1997 Allahabad page 370 (Full Bench) C. N. Rudramurthy v. K. Barkathulla khan and others (1998) 8 SCC; page 275 and Income Tax Commissioner v. Vazir Sultan and Sons AIR 1959 SC 814. It is true that even an obiter dicta of the Supreme Court are en titled to a considerable weight and is bind ing on the High Court, but as observed by Full Bench in L. Deep Chandra's case the observations made by the Supreme Court must not be stray observation but must be considered opinion of the Apex Court. Bhajan Lars case and the observa tions made therein as relied on by Sri Abid Ali, were considered in Dalbir Singh and others v. S. H. O. Bhozpur (supra),'merinal Kant Mallik v. State of U. P. (supra), Ram Ratan and others v. state of U. P. and another by the learned Single Judges of this Court, but it was said that the observations could not be construed so as to holding that power under Section 482 of the Code could be exercised to quash the FIR or to stay the arrest of the accused pending the investigation, I respectfully agree with the view taken by this Court in these cases. The reason is that the point under discussion was neither posed nor decided by the Apex Court, in any of the cases cited by Sri Abid Ali. Had the question been raised directly or indirectly or had Ram Lal Yeadav's case been referred to and distinguished or over ruled directly or indirectly, the matter would have been otherwise. Seven Judges, view in Ram Lal Yadav's case cannot be said to be overruled or superseded on the basis of the said observations of the Apex Court in Bhajan Lai's case or in other cases relied on, by the learned counsel for the petitioners. 13. In an unreported decision dated 11-5-2000 rendered in Criminal Misc. Case No. 450 of 2000, Ram Kumar and others v. State of U. P. and others a learned Single Judge of this Court, after referring to Smt. Jamuna v. State of U. P. 1996 (33) ACC699,1996 (1) JIC892 (All) and Mohd Nazim v. State of U. P 1998 (36) ACC 621, 1998 (1) JIG 148 (All) and three Supreme Court cases, namely, State of U. P v. K. K. Srivastava AIR 1989 SC 2222, State of Haryana v. Bhajan Lal 1991 (28) ACC 111 and Mis Pepsi Foods Ltd. and another v. Spl. Judicial Magistrate and others 1998 Crilj SC 749, and after considering the fact that Ram Lal Yadav's case has already been referred to nine Judges Bench, took the view that a petition for quashing the FIR was maintainable under Section 482 of the Code. With due respect to the learned Judge, I am unable to agree with him, on the point that Ram Lal Yadav's case does not hold the field, for the reasons stated by him. Perhaps, the attention of the learned Judge was not drawn to the Single Judge cases relied on by Sri Janardan Singh and referred to above and also to the view taken by Division Bench of this Court in Bhopal and others v. State of U. P, 1997 JIC 95 (Allahabad ). 14. Sri Abid Ali has argued that the construction of the expression "otherwise to secure the ends of justice" appearing in section 482 of the Code, as put by the learned Judges in Puttan Singh's case, and endorsed in Ram Lal Yadav's case, does in no way, advance the cause, for which the inherent powers of the High Court, have been preserved and the scope of this ex pression cannot be cut down, simply be cause of the powers under Art. 226 of the Constitution of India. He goes on to argue that the Hon'ble Judges who decided Put-tan Singh's case, accepted that High Court could interfere with the investigation or stay arrest etc. , but under extra-ordinary powers under Art. 226 and not under Sec tion 482 of the Code. He says that by ac cepting this, the Court demolished its own reasoning that the police had unfettered powers to investigate and the functions of the Court would start only when the case is instituted. Sri Abid Ali goes to the extent to argue that had the question arisen, before coming into force of the Constitu tion of India, as regards the inherent powers of the Court (under corresponding provision of the old Code) in the context of quashing of FIR or stay of arrest, whether the Court would have construed the said expression in the same way as it did in Puttan Singh's case or Ram Lal Yadav's case. He says that any narrow interpreta tion of the said expression, appearing in Section 482 of the Code, may defect the very purpose, for which inherent powers of this Court, have been saved. According to him, the expression "otherwise to secure the ends of justice" should be so inter preted as to enable the High Court, to cover any injustice, resulting from any act or omission of any 'authority or Court, under the Code, right from the commis sion of the crime to the final adjudication by the Court. He contends that the ques tion whether the inherent powers under Section 482 of the Code, can be exer cised, to quash FIR or stay arrest, during the investigation, should not be confused with the question as to when and in what circumstances, such a power is to be exercised. 15. The arguments of Sri Abid-Ali, though attractive and worth consideration but since the matter stands concluded by Ram Lalyadav's case and since a larger Bench of nine Hon'ble Judges, has to reconsider the correctness or otherwise of the ratio in Ram Lalyadav's case, so I refrain from dealing with these arguments. 16. The net result is that as on today, the law laid down in Ram Lalyadav 's case holds the field and it is difficult to say, on the basis of certain observations of the Apex Court, in the cases cited by Sri Abid Ali, that the view taken by Hon'ble Seven Judges in the said case, has been disap proved or over-ruled or modified by the Apex Court. The ratio of Ram Lal Yadav's case is based on various pronouncements of the Apex Court and so, unless the point is expressly raised and decided otherwise by Hon'ble the Supreme Court or by another larger Bench, this Court, it will not be possible to say that the law laid down in Ram Lal Yadav's case is no longer a good law. 17. So, this is a petition under Section 482 of the Code, for quashing FIR and for stay of arrest, pending investigation, is not maintainable. Sri Abid Ali has very fairly conceded that no criminal proceeding is pending in any Court. Since the petition is being dismissed on the ground that it is not maintainable, so I refrain from expressing any opinion on the point, whether case for interference with FIR or investigation is made out or not. 18. The petition under Section 482 of the Code is accordingly dismissed. No or ders as to costs. Appeal dismissed. .;