RAMVEER UPADHYAY & Anr. v. STATE OF U.P & Anr.

2.3 Criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. The possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Attrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence.

The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 Cr.P.C.The impugned judgment and order of the High Court is not interfered with. [Para 39, 40][354-D-H] Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and Ors. 2021 SCC Online SC 974; Monica Kumar (Dr.) v. State of U.P (2008) 8 SCC 781 : [2008] 9 SCR 943; Mrs. Dhanalakshmi v. R. Prasanna Kumar AIR 1990 SC 494 : [1989] Suppl. SCR 165; Sheonandan Paswan v. Others (1987) 1 SCC 288 : [1987] 1 SCR 702; State of Punjab v. Gurdial Singh (1980) 2 SCC 471 : [1980] 1 SCR 1071; Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (1983) 1 SCC 1 : [1983] 1 SCR 884; State of Andhra Pradesh v. Gourieshetty Mahesh (2010) 6 SCC 588; Paramjeet Batra v. State of Uttrakhand (2013) 11 SCC 673; Madhavrao Jiwajirao Scindia v.

Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 : [1988] 2 SCR 930; Inder Mohan Goswami v. State of Uttaranchal (2007) 12 SCC 1 : [2007] 10 SCR 847; Kapil Agarwal & Ors. v. Sanjay Sharma & Others (2021) 5 SCC 524; State of Haryana v. Bhajan Lal and Ors. 1992 Suppl A B C D E F G H RAMVEER UPADHYAY & ANR. v. STATE OF U.P. & ANR. 339 (1) SCC 335 : [1990] 3 Suppl. SCR 259; Hamida v. Rashid @ Rasheed and Others (2008) 1 SCC 474:[2007] 5 SCR 937 – referred to. Case Law Reference [2008] 9 SCR 943 referred to [1989] Suppl. SCR 165 referred to [1987] 1 SCR 702 [1980] 1 SCR 1071 [1983] 1 SCR 884 (2010) 6 SCC 588 (2013) 11 SCC 673 [1988] 2 SCR 930 [2007] 10 SCR 847 (2021) 5 SCC 524 referred to referred to referred to referred to referred to referred to referred to referred to [1990] 3 Suppl. SCR 259 referred to [2007] 5 SCR 937 referred to Para 28 Para 29 Para 30 Para 30 Para 31 Para 32 Para 33 Para 34 Para 35 Para 36 Para 37 Para 38 A B C D CRIMINAL APPELLATE JURISDICTION : Special Leave E Petition (Crl.) No.2953 of 2022.

From the Judgment and Order dated 07.03.2022 of the High Court of Judicature at Allahabad in Application U/s 482 No.27904 of 2021. Ranjit Kumar, Sr. Adv., Dr. Rajeev Sharma, Prashant Sharma, Raghuvir Sharma, Vipin Kumar Sharma, Dharmendra Sharma, Ms. Diksha Sharma, Akhilesh Mishra, Advs. for the Petitioners. Siddhartha Dave, Sr. Adv., Swetashwa Agarwal, Sanchit Garga, Nikunj Jain, Advs. for the Respondents. The Judgment of the Court was delivered by INDIRA BANERJEE, J.

This special leave petition is against a final judgment and order dated 7th March 2022 passed by the High Court of Judicature at Allahabad, dismissing the application filed by the Petitioner under Section 482 of the Criminal Procedure Code, 1973 being case No.29704 of 2021, whereby F G H 340 SUPREME COURT REPORTS [2022] 3 S.C.R. the Petitioner had challenged the order dated 17th September 2021 passed by the 4th Additional District and Sessions Judge, Hathras taking cognizance of the complaint filed by the Respondent No.2 under Section 365 read with Section 511 of the Indian Penal Code, 1860 (IPC) and Section 3(1)(Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989, hereinafter referred to as “the Atrocities Act”.

Mr. Ranjit Kumar, Senior Advocate appearing on behalf of the Petitioners opened his arguments contending that this case is a classic example of malicious prosecution of the petitioners, who have been embroiled in a false criminal case, due to political animosity. The complaint in the Court of the 2nd Additional District and Sessions Judge/Special Judge under the Atrocities Act, under section 156 (3) of the CrPC , which has given rise to these proceedings, has been filed by the Respondent No. 2 at the instance of Devendra Agarwal, Ex-MLA , a political opponent of the Petitioner No. 1. The Petitioner No. 1 and the said Devendra Aggarwal had fought elections against each other several times.

Earlier, on or about 1st January 2010, Smt. Meera Devi, wife of the Respondent No.2 had filed a complaint before the District Magistrate, Mahamaya Nagar District (now Hathras District) stating that the Respondent No.2 had been abducted by the brothers of the Petitioner No. 1, to forcibly make him vote in favour of their party, in the MLC election of 2010. In the said complaint it was alleged that the Petitioner had abused the Respondent No.2 by his caste, using filthy language.

On the same day, that is, 1st January 2010, Devendra Aggarwal wrote a letter to the District Magistrate for release of the Respondent No.2. In the aforesaid letter, it was stated that the Petitioners had abused the Respondent No.2 in filthy language by reference to his caste.

On 2nd January 2010, Meera Devi filed an application in the Court of the Judicial Magistrate, Sadabad, Hathras under Section 156(3) of the Code of Criminal Procedure (Cr.P.C ), being Complaint No. 412 of 2010 for directions on the Station House Officer (SHO) at Chandappa Police Station to register her Complaint of abduction of her husband.

A complaint was thereafter registered, pursuant to which Crime Case No. 17/2010 was started. The case was investigated by the Circle Inspector Sadabad, Hathras. After investigation, the Police filed a final A B C D E F G H RAMVEER UPADHYAY & ANR. v. STATE OF U.P. & ANR. [INDIRA BANERJEE, J. ] 341 report of closure of the case, opining that no incident of abduction, as alleged had taken place, and the complaint had been filed out of political animosity.

Meera Devi filed a Protest Petition which was dismissed. The High Court did not interfere with the order of dismissal of her Protest Petition. Meera Devi approached this Court. Pursuant to the orders of this court, further investigation was held by the CB CID. The Investigating Officer filed a final report dated 17.10.2018 in favour of the Petitioners. Meera Devi filed a Protest Petition. By an order dated 5th September 2020, the Special Judge under the Atrocities Act, Hathras rejected the Protest Petition filed by Meera Devi in Case No. 17/2010.

In February 2017, the Petitioner had contested the Assembly elections from Sadabad Constituency. Mr. Devendra Aggarwal also contested the election from the same constituency as a candidate of a rival political party. It is alleged that, on 8th February 2017, when the Petitioner No 1’s son was campaigning for the Petitioner No 1, Devendra Aggarwal, who was then a sitting MLA of the ruling party, attacked the Petitioner No 1’s son and his supporters and opened fire indiscriminately.

One Pushpendra Singh, a supporter of the Petitioner No 1, was killed in the incident. Pushpendra’s father, Ramhari Sharma lodged an FIR, arraigning Devendra Aggarwal as Accused No.1, pursuant to which a criminal case was started against Devendra Aggarwal and others, inter alia, under Section 302 of the Indian Penal Code.

It is stated that since Devendra Aggarwal was the sitting MLA of the ruling party, the police did not take action to arrest him. The father of the deceased Pushpendra, Ramhari Sharma filed a Criminal Misc. Writ Petition No.2739/2017 in the High Court praying for action against Devendra Aggarwal.

On 26th October 2017, the Respondent No.2 filed an application in the Court of the Additional Sessions Judge/Special Judge SC/ST Act, Hathras under Section 156(3) of the Cr.P.C alleging that the Petitioner No.1 along with his Personal Assistant, Ranu Pandit, being the Petitioner No.2 and 6-7 other persons had abused him in filthy language and asked his associates to drag him into the car which they could not do, as a crowd had gathered, and there was resistance put up. The Respondent No.2 prayed for direction on the SHO, Chandappa Police Station to register the case against the Petitioners. A B C D E F G H 342 SUPREME COURT REPORTS [2022] 3 S.C.R. A

The relevant averments in the said complaint are extracted hereinbelow for convenience:- “1. The applicant belongs to “Dhobi’ caste – a scheduled caste and is former BDC Member.

2. ….

3. That on 01.09.2017, at about 2.45 or 3 P.M. in the afternoon, the opposite party no.1 Ramveer Upadhyay came to Village-Bisana along with his convoy of vehicles and after seeing the Complainant started abusing of his caste and on the road, he said that Saley dhobi you had forgotten your position and your wings have come out and you are running up to Supreme Court. You will be sent at a place from where you will never come back. When the Complainant said you are doing your work and I am doing my work, Ramveer Upadhyay said to his associates that pull him and put him in the car, then opposite party no.2 Ranu Pandit and 6-7 other unknown persons, who can be identified by face, dragged the Complainant and with the intention to kill tried to kidnap him but due to gathering of people on the road and due to resistance shown by Annu R/o Jindpatti, Bisana, Pradeep R/ o Gambhirpatti, Bisana, they were not successful and went towards Hathras in their vehicles. Due to this incident an environment of fear and terror was created in the village.”

Pursuant to the aforesaid application, a case was registered and numbered Complaint Case No.19/2018. The Respondent No.2 was examined under Section 202 of the Cr.P.C. The statement of the Respondent No. 2 being the complainant was recorded under Section 200 of the Cr.P.C. in the Court of the Additional Sessions Judge/Special Judge, SC/ST Act, Hathras. The statements of one Annu son of Rukamal and one Yogesh Gupta, son of Dhaniram Gupta were also recorded in the same Court under Section 200 Cr.P.C.

In the meanwhile, in Writ Petition (Civil) No.699/2016 titled Ashwini Kumar Upadhayay v. Union of India, a three-Judge Bench of this Court presided over by the Chief Justice, passed an order dated 4.12.2018, taking notice of the fact that there were 4122 cases pending against legislators including former legislators, out of which 2324 cases were against sitting legislators. A chart, presented in Court by the learned B C D E F G H RAMVEER UPADHYAY & ANR. v. STATE OF U.P. & ANR. [INDIRA BANERJEE, J. ] 343 Amicus Curiae, showed that there were 430 cases involving life sentence pending against sitting as well as former legislators. A

To expedite the disposal of the cases, this Court requested each High Court to assign/allocate criminal cases involving former and sitting legislators to as many as Sessions Courts and Magisterial Courts as each High Court might consider fit and expedient. Pursuant to administrative directions issued by the High Court, and pursuant to the directions of this Court, Complaint Case No.19/2018 was transferred to the Additional District and Sessions Judge Court No.4, Hathras, as the Petitioner No.1 was a legislator/former legislator.

On being prima facie satisfied that the complaint case No.19/ 2018 made out a prime facie case against the Petitioners, the Additional District and Sessions Judge, Court No.4, Hathras passed an order dated 17th September 2021, taking cognizance of the charges against the Petitioners and issuing summons to the Petitioners.

Aggrieved by the aforesaid order dated 17th September 2021, the Petitioners filed an application under Section 482 of the Cr.P.C in the High Court and prayed that entire proceedings in Complaint Case No. 19/2018 as well as the cognizance order dated 17th September 2021 be quashed.

By an order dated 5th January 2022, the High Court admitted the application under Section 482 of the Cr.P.C. and stayed further proceedings in Complaint Case No.19/2018 pending in the Court of Additional District and Sessions Judge, Court No.4, Hathras.

However, on 7th March 2022, the High Court passed the impugned judgment and order rejecting the application filed by the Petitioners under Section 482 of the Cr.P.C.

Mr. Ranjit Kumar, learned Senior Advocate appearing on behalf of the Petitioners questioned the jurisdiction of the Additional District and Sessions Judge, Court No.4, Hathras, to take cognizance of the offence in Complaint Case No.19/2018.

Emphasizing Section 14 of the Atrocities Act, Mr. Ranjit Kumar argued that only the Special Judge under the Atrocities Act was competent to pass an order for issuance of summons. He argued that the order of the Additional District and Sessions Judge, Court No.4, Hathras being without jurisdiction the High Court should have quashed the same in B C D E F G H 344 SUPREME COURT REPORTS [2022] 3 S.C.R. A B C D E F G H exercise of its power under Section 482 of the Cr.P.C. Mr. Ranjt Kumar also argued that Complaint Case No.19/2018 patently a case of malicious prosecution which stemmed from political rivalry and was in gross abuse of the process of Court.

In Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari and Ors.1, Cited by Mr. Siddharth Dave, learned senior counsel, appearing on behalf of the Respondent No.2, this Court rejected the contention that only Special Court could take cognizance of offences under the Atrocities Act and held:

Therefore, the issue/question posed for the consideration of this Court is, whether in a case where cognizance is taken by the learned Magistrate and thereafter the case is committed to the learned Special Court, whether entire criminal proceedings can be said to have been vitiated considering the second proviso to Section 14 of the Atrocities Act which was inserted by Act 1 of 2016 w.e.f. 26.1.2016?

While considering the aforesaid issue/question, legislative history of the relevant provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, more particularly, Section 14 pre-amendment and post amendment is required to be considered. Section 14 as stood pre-amendment and post amendment reads as under: ........ Provided that in Districts where less number of cases under this Act is recorded, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for such Districts, the Court of Session to be a Special Court to try the offences under this Act; Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.” ******

Considering the aforesaid legislative history which brought to insertion of proviso to Section 14 of the Atrocities 1 2021 SCC Online SC 974 RAMVEER UPADHYAY & ANR. v. STATE OF U.P. & ANR. [INDIRA BANERJEE, J. ] 345 Act, by which, even the Special Court so established or specified for the purpose of providing for speedy trial the power to directly to take cognizance of offences under the Atrocities Act, 1989, the issue/question posed whether in a case where for the offences under Atrocities Act, the cognizance is taken by the learned Magistrate and thereafter the case is committed to the Court of Sessions/Special Court and cognizance is not straightway taken up by the learned Special Court/Court of Session, whether entire criminal proceedings for the offences under the Atrocities Act, 1989 can be said to have been vitiated, as so observed by the High Court in the impugned judgment and order ?

On fair reading of Sections 207, 209 and 193 of the Code of Criminal Procedure and insertion of proviso to Section 14 of the Atrocities Act by Act No. 1 of 2016 w.e.f. 26.1.2016, we are of the opinion that on the aforesaid ground the entire criminal proceedings cannot be said to have been vitiated. Second proviso to Section 14 of the Atrocities Act which has been inserted by Act 1 of 2016 w.e.f. 26.1.2016 confers power upon the Special Court so established or specified for the purpose of providing for speedy trial also shall have the power to directly take cognizance of the offences under the Atrocities Act. Considering the object and purpose of insertion of proviso to Section 14, it cannot be said that it is not in conflict with the Sections 193, 207 and 209 of the Criminal Procedure Code, 1973. It cannot be said that it takes away jurisdiction of the Magistrate to take cognizance and thereafter to commit the case to the Special Court for trial for the offences under the Atrocities Act.

In support of the above conclusion, the words used in second proviso to Section 14 are required to be considered minutely. The words used are “Court so established or specified shall have power to directly take cognizance of the offences under this Court”. The word “only” is conspicuously missing. If the intention of the legislature would have to confer the jurisdiction to take cognizance of the offences under the Atrocities Act exclusively with the Special Court, in that case, the wording should have been “that the Court so established or specified only shall have power to directly take cognizance of offences under this Act”. Therefore, merely because now further and additional powers have been given to the Special Court also to take cognizance of the offences under the Atrocities Act and in the present case merely because the cognizance is taken by the learned Magistrate for the offences under the Atrocities Act and thereafter the case has been committed to the learned Special Court, it cannot be said that entire criminal proceedings have been vitiated and same are required to be quashed and set aside.” RAMVEER UPADHYAY & ANR. v. STATE OF U.P. & ANR. [INDIRA BANERJEE, J. ] 347

23. In view of the judgment of this Court in Shantaben Bhurabhai Bhuriya (supra), the Argument of Mr. Ranjit Kumar that the Additional District Judge and Sessions Judge, Court No.4 Hathras had no jurisdiction to take cognizance or issue summons/orders cannot be sustained.

24. There was apparently political rivalry between the Petitioner No.1 and Devendra Aggarwal. However, Complaint Case No. 19/2018 has not been lodged against the Petitioners, by Devendra Aggarwal, but by the Respondent No.2, a Dhobi by caste, which is a scheduled caste. It cannot be said that the allegations in the complaint do not make out offence under the Atrocities Act. It is specifically alleged that the Petitioners had abused the Respondent No.2 in filthy language by reference to his caste. The allegations in the Complaint Case No.19 of 2018, if established, could result in conviction under the relevant sub- sections of Section 3(1) of the Atrocities Act.

Respondent No.2 being an employee of Devendra Aggarwal, it is possible that Complaint Case No.19/2018 may have been prompted by political vendetta against the Petitioner No.1. However, since as observed above, the allegations in the complaint case make out an offence under Section 3 of the Atrocities Act, it would not be proper to nip the complaint in the bud, more so, when there are statements recorded in Court under Section 200 of the Cr.P.C. The possibility of retaliation on the part of the Petitioners by the acts alleged in the complaint, after closure of the earlier complaint No.17 of 2010 cannot be ruled out. Quashing the criminal proceedings at the very inception might result in injustice.

Section 482 of the Cr.P.C provides:-

482. Saving of inherent powers of High Court.—Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Even though, the inherent power of the High Court under Section 482 of the Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C is not to be exercised for the asking. A B C D E F G H 348 SUPREME COURT REPORTS [2022] 3 S.C.R. A B C D E F G H

28. In Monica Kumar (Dr.) v. State of U.P2., this Court held that inherent jurisdiction under Section 482 of the Cr.P.C has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

29. In exceptional cases, to prevent abuse of the process of Court, the High Court might in exercise of its inherent powers under Section 482 quash criminal proceedings. However, interference would only be justified when complaint did not disclose any offence, or was patently frivolous, vexatious or oppressive, as held by this Court in Mrs. Dhanalakshmi v. R. Prasanna Kumar3.

30. The fact that the complaint may have been initiated by reason of political vendetta is not in itself ground for quashing the criminal proceedings, as observed by Bhagwati, CJ in Sheonandan Paswan v. State of Bihar and Others4. It is a well established proposition of law that a criminal prosecution, if otherwise justified and based upon adequate evidence, does not become vitiated on account of mala fides or political vendetta of the first informant or complainant. Though the view of Bhagawti, CJ in Sheonandan Paswan (supra) was the minority view, there was no difference of opinion with regard to this finding. To quote Krishna Iyer, J., in State of Punjab v. Gurdial Singh5, “if the use of power is of fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal.”

In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors.6 A three-Judge Bench of this Court held: “6. It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section