- (1.) MRS. Poonam Srivastava, J. Heard Sri V. C. Mishra, Senior Advocate, assisted by Sri Vivek Mishra, learned Counsel for the petitioners and learned A. G. A. for the State.
(2.) THE writ petition is reported to be beyond time by 312 days. Learned Counsel for the petitioners has prayed for condonation of the aforesaid laches as he was bona fidely pursuing another remedy in this High Court by way of a criminal revision No. 2026 of 2003, which was dismissed as withdrawn without liberty to file another revision or Misc. Application under Section 482 Cr. P. C. However, he was granted liberty to seek remedy before the proper forum in a writ petition. This order has been annexed as Annexure-2 to the writ petition. THE explanation given for laches is satisfactory and the delay is condoned. I proceed to hear the writ petition on merits. The order challenge is dated 16-7-2003 passed by the IVth Additional Chief Judicial Magistrate, Jaunpur on an application under Section 156 (3) Cr. P. C. Police Station Meerganj, District Jaunpur. The Magistrate was of the view that he was satisfied on the basis of record and after hearing the Counsel for the applicant, that cognizable offence appears to have been committed and directed the Station House Officer Police Station Meerganj to register and investigate the matter. The submission on behalf of the petitioners is that the petitioner No. 2 was Manager of Gayadeen Ram Kumar Inter College, Ramgarh, Barawan, Jaunpur for the period commencing from March 1993 up till 4-5-1999. The petitioner No. 1 took over charge subsequently on 5-5-1999 and continued up till 22-4- 2006. One Suresh Kumar Mani Tripathi, the nephew of the petitioner No. 2 was appointed on ad-hoc basis after adopting due procedure of law as Lecturer in Economics. The submission is that when the criminal revision No. 2026 of 2003 was filed, an interim order was passed by this Court admitting the revision and calling for a counter-affidavit and operation of the order dated 16-7-2003 was stayed. This order was passed on 8-8-2003. Sri V. C. Mishra states that bare perusal of the application under Section 156 (3) Cr. P. C. does not prima facie disclose any offence and, therefore, the order of the Magistrate was uncalled for. It is argued that the power of the Magistrate to exercise jurisdiction under Section 156 (3) Cr. P. C. cannot be exercised arbitrarily and it is not unfettered. The second argument is that the authority exercising either judicial or administrative powers could not be passed prejudicing the interest of a person without invoking the principle of natural justice.
(3.) RELIANCE has been placed by the Counsel for the petitioners on a decision of this Court in the case of Rama Shankar Pandey and Ors. v. U. P. Police / Station Officer Kotwali, Ghazipur, 1994 (31) A. C. C. 346. This is a decision following the principles laid down by the Apex Court in the case of State of Haryana v. Bhajan Lal, 1990 (2) JIC 997 (SC) : 1992 Criminal Law Journal 527. It is emphatically submitted that the case of the present petitioners is covered by four out of seven circumstances, enumerated in the case of Bhajan Lal (supra) where a First Information Report can be quashed and therefore, this Court is bound to follow the decision of the Apex Court and stay the order of the Magistrate. After considering the arguments advanced by the learned Counsel for the petitioners as well documents and decisions relied upon by the Counsel for the petitioners, I am of the view that the principles laid down in the case of Rama Shankar Pandey (supra) was only to the limited extent, whether the allegations in a First Information Report even assumed to be correct on its face value, could be interfered with by High Court even in exercise of jurisdiction under Section 482 Cr. P. C. It was in this context, the reference of the decision of the Apex Court in the case of Bhajan Lal was mentioned that the powers could equally be exercised under Article 226 of the Constitution as well as inherent powers under Section 482 Cr. P. C. in the exceptional circumstances to interfere and pass appropriate order in a given set of facts, during the continuation of investigation that is to say before a charge-sheet is submitted. A decision of this Court by a Full Bench in the case of Ram Lal Yadav v. State of U. P. and Ors. , 1989 (26) ACC 181, was held to be no longer good law after the decision in the case of Bhajan Lal (supra ). In the circumstances, the decision relied upon by the Counsel for the petitioners has no applicability to the facts of the present case where the First Information Report has not yet been registered. The Magistrate has only arrived at a conclusion that cognizable offence appears to have been committed and directed the concerned police station to investigate the matter after registering a First Information Report. It is thus evident that the case of Bhajan Lal (supra) is also not applicable at this stage where the First Information Report is yet not in existence. So far the submission on behalf of the petitioners that the criminal proceedings are manifestly attended with mala fide or maliciously with an ulterior motive for wreaking revenge, it is once again responsibility of the petitioners to establish the mala fide. The order passed by the Magistrate is not a mala fide one. So far the complainant viz-a-viz the accused are concerned, it goes without saying that there is always an element of grudge, enmity and grievance between two group which can only be seen at a later stage. I am not inclined to give my opinion on the allegations made out in the application under Section 156 (3) Cr. P. C. at this stage since it may be prejudicial to the petitioners and also effect the merits of the case as well as the investigating agency.;