RAM LAL YADAV Vs. STATE OF U P

JUDGEMENT

(1.) BEING oven awed by the unanimous verdict of five Honourable Judges in Prashant Gaur v. State, 1988 AWC 828 (for short the FBD), I must confess, on initial hesitation to write this order did develop in me, but by now, it stands completely removed by my judicial conscience. With sincere regrets, I feel duty bound to voice my bumble disagreement with the answers and the reasons for the same as set out in the FBD after hearing arguments from learned Advocates which I am putting down in the following paragraphs as succinctly as I can, of course, along with my own thoughts here and there.

(2.) IT so happened that in Criminal Misc. Application No. 5939 of 1988, Ram Lal Yadav v. State of U. P., challenge has been extended to the investigation emanating from a FIR lodged on 3-6-88 under section 3/7 E.C. Act at P. S. Bhadohi, district Varanasi by the brick kiln owners saying that U. P. Coal Control Order was not applicable on them and as such no offence was disclosed even if the entire allegations in the FIR are taken as correct, hence the investigation including the threat of arrest of applicant should be quashed and prevented. When Sri N. D. Shukla, Advocate, made his arguments, Sri P. S. Adhikari the learned AGA raised an objection to which I shall advert shortly hereafter. With this case, Criminal Misc. Application No. 5977 of 1988 Hubban v. State of U. P., Criminal Misc. Application No. 6024 of 1988 Sahdeo v. State, are already connected in view of orders of different Single Judges. Criminal Misc. Case No. 5940 of 1988 Radhoram Singh v. State and Criminal Misc. Application No. 5664 of 1988 Mahesh Chandra Goel v. State of U. P., being matters in which similar questions of law have been raised, were heard together. In Criminal Misc. Application No. 7967 of 1988 Raziuddin v. State of U. P., Mr. S. P. Singh Raghav, argued that when the admitted case in the FIR lodged under section 406 IPC at PS Kotwali Nagar, district Bulandshahar by one partner was that another partner took away the truck, purchased by both in partnership, and the same was standing at the shop of the other who was not willing to return it, there was no question of any offence being disclosed and hence investigation including threat of arrest should be quashed and stopped.

(3.) DURING the course of hearing many learned Advocates advanced arguments which I shall take up one by one but before that I must deal with the FBD and see what is emerging out of it. For a better understanding of the decision, I have tried to analyse the entire judgment running into 74 paragraphs as under :- SI. No. 1. Details of reference and the question etc. 2. Objection to the reference itself by the Advocate General and the decision thereon. 3. Opinion of the Full Bench on the facts stated in the two FIR's of the two cases referred. 4. Puttan Singh's case discussed. 5. History of Section 561 OM CrPC and 482 of new CrPC. 6. Inherent powers of Allahabad High Court and inherent powers of High Courts in general. 7. Articles 141 and 372 of the Constitution of India, Advocate General's objection that no question of law survives after the decision of the Privy Council and the Supreme Court. 8. Article 226 is available to challenge investigation. 9. Both Remedies-writ petition under Article 226 of the Constitution and quashing application under section 482 CrPC ;are available. 10. Reasons for coming to the answers. 11. Answers to the questions appreciation to the lawyers assistances to the Full Bench refusing leave to appeal etc etc. 12. Quotations from Privy Council and Supreme Court decisions Paragraphs 1, 2 and 4 8, 9, 54, 56, 57, 58, 59, 60, 65, 66, 67, 69 and 70. 55 3, 5, 6, 7 and 50 10, 11, 12, 13, 25, 26, 27 and 49. 34, 35, 36, 37, 38, 39, 40, 41, 42 and 53. 14, 15, 16, 61, 62 and 63. 44, 45, 46 and 47. 48 64 67, 68, 71, 73 and 74. (I have pointed out the gist of each decision as is relevant from my point of view). (a) Khwaja Nazir Ahmad's case, AIR 1945 PC 18-charge sheet had not come. Investigation after lodging FIR was going on. ...17 (b) Lala Jai Ram's case, AIR 1945 PC 94-No power to grant bail under section 561-A when leave to appeal granted by PC after conviction was recorded by HC. ...38 (c) R. P. Kapur's case, AIR 1960 SC 866-FIR was challenged but in the meantime charge sheet had come its magistrate's court. Offence disclosed-Non interference. ...18 (d) S. N. Basak's case, AIR 1963 SC 447-FIR quashed by High Court in exercise of powers under section 459/561 (A) CrPC. Supreme Court sets aside that order. ...19 & 20 (e) S. N. Sharma's case, AIR 1970 SC 786-Magistrate can't stop investigation under section 159 CrPC. If Investigation malafide, remedy under Article 226 of the Constitution available. ...21, 22 & 23 (f) Hazari Lal Gupta's case, AIR 1972 SC 484-FIR was being investigated. Hence no interference with investigation. ...24 (g) Jahan Singh's case, AIR 1974 SC 1146-No FIR quashing possible since investigation was going on and no complaint had been filed in court ...28 (h) Kurukshetra University's case, AIR 1977 SC 2229-No charge sheet or complaint in Court. High Court quashed, FIR. Supreme Court sets aside that order inherent power not to be used. ...29 (i) Saldanna's case, AIR 1980 SC 326-Power of High Court to issue directions under Article 226 of the Constitution for using, section 173 (8) was considered. High Court's order set aside. ...30 & 31 (j) Swapan Kumar's case, AIR 1982 SC 949-High Court's order quashing FIR and investigation in exercise of powers under Article 226 of the Constitution upheld because no offence was disclosed in FIR. ...32 (k) Sampat Lal's case, AIR 198S SC 195-Some directions given by the High Court under Article 226 of the Constitution regarding investigation, set on merits by the Supreme Court. ...33 (1) Ratilal Bhanji's case, AIR 1967 SC 1639-High Court's power under section 561-A to cancel bail in bailable offence: case granted by Magistrate upheld. ...42 (m) Smt. Lilawati's case, AIR 11957 SC 521-On principles of 'ejusdem-generis' where the word 'otherwise' has been used in the statute. ...51 & 52 (n) Lala Sri Bhagwan's case, AIR 1965 SC 1767-How single Judge should make reference, judicial decorum etc. ...57 (o) 1. Bhagwan Swarup's case If law has been interpreted by Privy 2. AIR 1965 SC 682 Council or Supreme Court, it cannot 3. Kishan Chand's case asise in High Court again. 62 AIR 1965 Alld. (FB) 55 4. Director of Rationing's case, AIR 1960 SC 1355 (I may mention here that only one or two more decisions noted in the FBD is not being referred to by me here separately because they cover one or the other point summarised above and appear to be repetition only).