MARINAL KANT MALLIK Vs. STATE OF U P

JUDGEMENT

(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. "

(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.