- (1.) S. K. Phaujdar, J. Through this ap plication under Section 482, Cr. P. C the applicants desired that the entire proceed ings in pursuance of the F. I. R. dated 2-8-1998 under Section 498-A, I. P. C. read with Sections 3/4 of the Dowry Prohibition Act relating to Police Station Rudrapur, Dis trict Udham Singh Nagar, be quashed. A question arose whether an investigation or an F. I. R. could be quashed in exercise of powers under Section 482, Cr. P. C. or if the proper proceeding there fore would be one under Article 226 of the Constitution of India.
(2.) THE learned counsel for the ap plicants 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 under Section 482, Cr. P. C. , in terms of the decision of the Supreme Court in the case of Ch. Bhajan Lal [state of Haryana v. Ch. Bhajan Lal], as reported in A. I. R. 1992 S. C. 604; 1993 JIC 534 (SC ). 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 quash an EI. R. could not be exercised under Section 482, Cr. P. C. THE learned counsel for the ap plicants further relied on the decisions of the Supreme Court to indicate that even an obiter fctum 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 EI. 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. Allega tions of corruption was levelled 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 admit came down to the Supplement 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 Emperor v. Khwaja Nazir Ahmad as reported in A. I. R. 1945 P. C. 18 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 extraordinary power under Article 226 or the inherent powers under Section 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 extraordinary powers under Article 226 of the Constitution and under Section 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 para graph 98 of this judgment to an earlier decision of the Supreme Court reported in A. I. R. 1977 S. C. 2229kurukshetra Univer sity v. State of Haryana and in paragraph 2 of that judgment was quoted hereunder which may again be quoted here. THE Supreme Court had disapproved the quashing of an EI. 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 under Section 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 realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. " Reference was made in the judg ment 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 judg ment 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 inves tigate the circumstances of an alleged cog nizable 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 in herent jurisdiction of the Court. The functions of the judiciary and the police are complemen tary 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 under Section 491, Criminal P. C. to give directions in the na ture 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, Cr. P. C. has been stated in the same breath with Article 226 of the Constitution.
(3.) 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 reported in A. I. R. 1995 S. C. 1729 Sanvan Singh Lambi v. Union of India. In paragraph 19 of this judgment it was observed "normally even an obiter dic tum is expected to be obeyed and fol lowed. " References were also made to the case laws reported in A. I. R. 1985 S. C. 621, A. I. R. 1970 S. C. 1001, A. I. R. 1986 S. C. 1440; A. I. R. 1988 S. C. 1353, and A. I. R. 1997 S. C. 2477 to say that the decision of the Supreme Court or declaration of law by the Supreme Court is the law of the land and is to be obeyed by the High Courts. THE situation does not require any argument as it is known to everybody that the law enun ciated 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 under Section 482, Cr. P. C were to be exercised in preference to the powers under Article 226 of the Constitu tion 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 Criminal Misc. Writ Petition No. lw2qn991,a. S. Bindra v. Senior Superin tendent of Police, 1998 CBC 82. 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 Lal Yadav by the Al lahabad 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 Lai's case (supra), none of the Supreme Court cases considered the question whether jurisdiction of the High Court could be invoked under Section. 482, Cr. P. C. while a criminal case was still being investigated. The Supreme Court was, therefore, not deciding this point in any of the sub sequent judgments and any casual observation that either in its jurisdiction under Art. 226 of the Constitution of India or under S. 482, Cr. P. C. , in a suitable case the High Court could grant relief was just an observation of the Supreme Court to indi cate that the High Court could exercise its inherent power under Section 482, Cr. P. C. or extraordinary jurisdiction under Art. 226 of the Constitution to interfere in a suitable matter pending investigation. " The Division Bench further went to distin guish that the observation of the Supreme Court could only mean that the powers under Section 482, Cr. P. C. could by exer cised in some proceedings arising out of a complaint while the matter was pending in some court and the jurisdiction under Ar ticle 226 of the Constitution could be exercised when the matter was still in investiga tion stage and had not reached the court. The Division Bench further found "the Supreme Court, as a matter of fact, has quoted Ram Lai's judgment of the Full Bench of the Allahabad High Court in the case of Janta Dal v. H. S. Chauhan, AIR 1993 S. C. 892 (paragraph 155 page 926 ). 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 ap proval by the aforesaid judgment of the Supreme Court. ";