- (1.) S. N. Saxena, J. Applicant Bhagwant Din has moved this application under Section 482, Cr. P. C. and has prayed for direction to the opposite parties not to arrest him in Case Crime No. 609/92 under Sections 420 and 406, I. P. C. P. S. Kotwali, district Kanpur Nagar and also for quashing the First Informa tion Report, dated 27-8- 1992 on the basis of which the said case was registered against him. The applicant has come to this Court with the following allegations.
(2.) ONE Mohammad was had moved an application under Section 156 (3), Cr. P. C. on 17-8-1992 in the Court of Additional Chief Metropolitan Magistrate, Kanpur Nagar, against the applicant. The learned Magistrate by order, dated 18-8-1992 called for the report of the Station Officer, Kotwali, who after making investigation in the case, submitted report, dated 25-8-1992, a copy of which is Annexure No. 2 of this application. The Station Officer recommended that during the pendency of the litigations between the parties, there was no need for any further action against the applicant. Mohd. Ilyas had already filed a civil suit in respect of the property which had given rise to various litigations between the parties and the same was pending decision in the Court of IV Additional District and Sessions Judge. Kaapur Nagar. It was for execution of a sale deed and he had instituted one more civil suit for cancellation of a sale deed executed by Ambika Prasad who was the brother of applicant Bhagwant Din and the same was pending decision in the Court of VI Additional District and Sessions Judge. Kanpur Nagar. He, thereafter, on 27-8-1992 lodged F. I. R. , a copy of which is Annexure No. J of the application at P. S. Kotwali, Kanpur against applicant Bhagwant Din and his brother Ambika Prasad under Sections 420 and 406, I. P. C. Mohd. Ilyas, in his afore said F. I. R. disclosed that he had entered into an agreement of sale of certain property mentioned therein with Ambika Prasad and Bhagwunt Din about which registered agreement of sale was executed on 26-8-1987 by the partio and had paid Rs. 35,000 on account of the sale money to them. Applicant Bhagwant Din, with intent to defraud him, did not sign the deed of agreement which was signed by Ambika Prasad alone although the aforesaid amount was paid by him to both of them. Both the brothers misappropriated the said amount of Rs. 35,000 and transferred the property, which was the subject matter of the agreement, to one Ajuber on 25-2-1992. They, thus, cheated him of the aforesaid amount which was misappropriated by them and, there fore, were liable for punishment under Sections 420 and 406, I. P. C. The applicant, in the instant application, has contended that he had not executed the alleged agreement of sale and in any case criminal proceed ings against him could not be maintained by Mohd. Ilyas, as civil litigation was going on between the parties. Mohd. Ilyas, however, had started pairvi on the basis of the aforesaid F. I. R. against him and he apprehended his arrest in connection with the same. The criminal proceedings against him, however, were total abuse of the process and hence the present application under Section 482, Cr. P. C. Learned A. G. A. raised a preliminary objection that the present application could not be moved by the applicant under Section 482, Cr. P. C. , is no charge-sheet had been submitted by the police which was seized of the investigation of the case on the basis of the aforementioned F. I. R. In support of his objection, he relied upon a Full Bench decision of this Court (The Bench consisted of seven Hon'ble Judges of this Court) in Criminal Misc. Applications NOB. 5939, 5664, 5940, 5977, 5985 and 6024 of 1988, dated February 1, 1989 reported in 1989 (26) ACC at p. 181 : 1989 JIG (All) (FB) Ram Lal Yadav v. State of U. P. and others, and argued that the appli cation of the applicant under Section 482, Cr. P. C. was not maintainable, as the High Court in the exercise of its jurisdiction under the said provision of the Code of Criminal Procedure had got on jurisdiction in the matter unless charge-sheet had been submitted in the case by the police or a complaint had been filed against the accused persons in the competent court of law. He relied upon the following observation of this Court in the aforesaid Full Bench decision : "the power of the High Court under Section 482, Cr. P. C. to quash an F. I. R. or a complaint referred to above is with reference to proceedings in the court after the filing of a charge-sheet or a complaint and not to investigation prior to the filing of the charge-sheet in court. "
(3.) ON behalf of the applicant, however, reliance was placed upon a single Judge decision of this Court reported in 1994 (31) ACC 346 ; 1994 JIC 755 (All), Rama Shanker Pandey and others v. V. P. Police, Station Officer, Kotwali, Ghazipur, whereby a contrary view was taken by my learned Brother M. Katju, J. in an application under Section 482, Cr. P. C. registered as Cr. Misc. Application No. 2310 of 1994 decided on April 6, 1994. In the said decision, it was held that on the basis of the following two decisions of the Hon'ble Supreme Court, this Court in the exercise of its inherent jurisdiction under Section 482, Cr. P. C. , was competent to quash the F. I R, and the investigation on the basis of the same. State of Haryana v. Bhajan Lal, 1992 Cr LJ 527 : 1990 (2) JIC 997 (SC) ; State of Andhra Pradesh v. P. V. Pavithran, AIR 1990 SC 1266 : 1990 (1) JIC 467 (SC ). Learned Single Judge also observed in the aforesaid decision that in the case of State of Haryana v. Bhajan Lal (supraj had been followed in the case of Union of India v. B. R. Bajaj, 1994 (30) ACC 157 : 1994 JIC 238 (SC ). Learned Single Judge, thus, had taken a view which was directly at variance with the view laid down by the abovementioned Full Bench decision of this Court, but he did not find it necessary to refer the matter for decision by a larger Bench, as he was of the opinion that after the abovementioned pro nouncements by the Hon'ble Supreme Court, it was not necessary to refer the matter to a larger Bench. Before me it was contended for the opposite parties that neither of the abovementioned decisions of the Hon'ble Supreme Court laid down the law as contemplated by Article 141 of the Constitution of India, as the question relating to the scope of Section 482, Cr. P. C. was neither raised nor decided by their Lordships of the Hon'ble Supreme Court in the said decisions and the Full Bench decision of this Court, therefore, continued to be good law. Before proceeding further, it would be proper to reproduce the following observations from the aforesaid single Judge decision of this Court: "17. A question may be raised whether a single Judge of this Court can hold a Full Bench decision of this Court to be no longer good law. In my opinion, though ordinarily a Single Judge is bound to follow a Full Bench decision of the same court, he should not follow the said decision it is contrary to a Supreme Court deci sion. In this connection 1 may refer to Article 141 of the Consti tution which says "the law declared by the Supreme Court shall be binding on all Courts within the territory of India. ' It may be noticed that there is no corresponding provision in the Constitu tion making decisions of the High Court binding on lower courts or on smaller benches of the High Court, though by the theory of precedents they are binding. 19. In the circumstances, I hold that the judgment of the Full Bench of this Court in Ram Lal Yadav case (supra) is no longer good law in view of the subsequent decisions of the Supreme Court. The correct legal position is that the High Court, m exceptional circumstances, has power under Section 482, Cr. P. C. to quash the police investigation and/or quash the first information report and/or stay the arrest of the applicant. These circumstances are mentioned in paragraph 108 of Bhajan Lal's case and there may be also some other exceptional circumstances since the 7 grounds mentioned in paragraph 108 of Bhajan Lal's case are only illus trative and not exhaustive and the High Court can interfere in these exceptional circumstances even prior to the submission of the charge-sheet. ";