Naval Dey Bharti v. State of U.P. Appl. U/s. 482 No. 16228 of 2019

ALLAHABAD HIGH COURT | Sanjay Kumar Singh, J. Appl. U/s. 482 No. 16228 of 2019 25-07-2019

Naval Dey Bharti

v.

State of U.P.

Cognizance of an Offence – Before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the police report.

Judicial Mind – Without applying judicial mind and without even looking at the facts of the case mechanically issuing process only on the basis of operative portion of the charge sheet, does not amount to application of mind by the Magistrate.

Judicial Order – The judicial order cannot be allowed to be passed in a mechanical manner. Such tendency must be deprecated and cannot be allowed to perpetuate.

Frivolous Prosecution – Charge-sheet under Section 3/10 Examination Act, 1982 – In this case the magistrate concerned also did not take pain even to examine whether the Examination Act 1982 is in existence or not – It is the solemn duty of the Court to protect apparently an innocent person, not to be subjected to such frivolous prosecution on the basis of wholly untenable allegations and complaint, if criminal proceeding is allowed to go on, the same will tantamount to causing grave miscarriage of justice, therefore in order to secure the ends of justice, the impugned criminal proceeding against the applicant is liable to be quashed.

Fundamental Rights – the Court cannot shut its eyes to the flagrant violation of fundamental rights guaranteed under Article 21 of The Constitution of India which provides for protection of life and personal liberty of the citizens.

Miscarriage of Justice – The expression ” miscarriage of justice” or “failure of justice”, include , violation of law or procedure of such a nature that if it was to be corrected the procedure could not stand. Neglect of principles of law or procedure, a glaring mistake in the procedure or manifest error on a point of law also amounts to “miscarriage of justice”.

The present case is case of “miscarriage of justice” as it neither followed the “substantive due process doctrine” nor the “ procedural due process doctrine”, which has led to clear violation of rights of the applicant guaranteed under Article 21 of the constitution of India. The damages which the applicant is likely to claim have to be founded on the pecuniary and non pecuniary losses suffered to the applicant. In the present case, however, there being no relief and no pleadings to establish the claim for the damages, this court deems it appropriate to permit the applicant to avail of the Constitutional remedies for claiming the damages to which the applicant may be entitled on the basis of the pleadings to be substantiated by evidence , thus, this court deems it proper to permit the applicant to initiate appropriate legal proceedings for claiming the damages, if so advised, in proper legal proceedings. [Para 26]

Facts of the Case

This application under Section 482 Cr.P.C. has been preferred by the applicant with a prayer to quash the charge-sheet, summoning order as well as proceedings Section 3/10 Examination Act, 1982. In the said FIR allegation has been levelled against the applicant that, the applicant appeared in Combined State/Upper Subordinate Services Main Examination, 2016. On completion of examination she did not submit her answer sheet to the invigilators, instead left the examination room alongwith her answer sheet of essay. In C.D., the Investigating Officer has made an entry of concluding the investigation by mentioning that after completion of investigation, offence under section 3/10 of Examination Act is made out against the accused/applicant. The investigating officer submitted the impugned charge-sheet against the applicant under Section 3/10 of the Examination Act, 1982 on which Judicial Magistrate First took cognizance and by separate order the applicant has been summoned by the Judicial Magistrate, Court No.1, Allahabad to face trial.

Under the facts and circumstances of this case, the court held that :

The investigating officer did nothing except to bolster up the prosecution case and without applying his mind submitted the charge sheet in arbitrary manner under section 3/10 of Examination Act 1982, while there is no such Act in existence. Such investigation cannot be said to be fair, impartial and conscious investigation and is not liable to be approved in the eyes of law. In this case the principle of Fair and Proper Investigation has been comatosed by the investigating agency, which has crucified the concept of faith in the investigation which is expected to maintain loyalty to law and sustain fidelity to its purpose.

Counsel for Applicant :- Upendra Kumar

Counsel for Opposite Party :- G.A., Satish Chaturvedi