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3346/2015
1
.Respondents
=============================================
Coram:
Honble Shri Justice A. M. Khanwilkar, Chief Justice
Honble Shri Justice Rohit Arya, J.
: 17.04.2015
Date of Decision :
05.05.2015
JUDGMENT
[Delivered on 05th May of 2015]
Per: A.M.Khanwilkar, Chief Justice:
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3.
by
resorting
to
unfair
means
in
the
(hereinafter
referred
to
as
VYAPAM
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the excel sheet to which reference has been made in the FIR has
been forged by alteration and the name of Governor has been
substituted in place of the Chief Minister. That information
ought to have been verified before registration of FIR. At the
same time, however, it is conceded by the petitioner that the said
material pertained to selection of Teachers and not Forest
Guards, which is the subject matter of the impugned FIR. The
third ground urged in the writ petition, is that, the FIR does not
disclose that the informant had personal knowledge of the
factum of Governor having made any recommendation nor the
informant has mentioned that the Governor had communicated
with him in that behalf. On the other hand, the allegations in the
FIR refer to some intermediary and the statement made by
unknown and undisclosed intermediary. That cannot be used to
implicate the Governor of the State. The next ground urged is
that the Governor is a highly respected statesman who is now
more than 87 years old having unblemished record in various
capacities including being Member of Parliament and Chief
Minister of State of Uttar Pradesh. It is then contended that the
petitioner has been suffering from serious health problems and
was admitted to Intensive Care Unit (ICU) for sometime before
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in
suo-moto
proceedings
being
Writ
Petition
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even for
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that in any case, the present FIR does not reveal any facts which
would constitute commission of offence by the petitioner in
particular, with reference to the sections (offences) mentioned
therein. In that, no facts are stated as to what accused No.10, the
present petitioner, had done or illegally omitted to do except
being named as one of the 101 accused cited therein. Reliance is
placed on the celebrated decision in the case of State of
Haryana and Ors Vs. Bhajanlal and others7, wherein the
Court ruled that FIR can be quashed if the allegations made in
the FIR even if believed to be true do not prima facie constitute
or make out a case against the accused or where the allegations
made in the FIR even if proved to be true do not disclose a
cognizable offence.
wholly
26
inadmissible
of
the
being
Evidence
hit
Act
by
as
Sections
25
well
as
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attracted.
In
other
words,
registration
of
FIR
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Blacks Law Dictionary (6th edn 1990 at Page 374). The criminal
proceeding means a proceeding which lies under the law of
procedure in a criminal court and which is in accordance with
some requirement of, or is performed under some power
conferred by, the relevant procedural provisions. It means some
steps taken before a Court against person or persons charged
with violation of the criminal law. Further, if the investigation
referred to in Chapter XIV of the Cr.P.C. is a proceeding
it necessarily follows that it is a criminal proceeding; and the
very fact that expression criminal proceedings in Section 211
of the I.P.C. is not qualified by the word judicial or by anything
else, goes to show that it is a proceeding before a Court of law
or other Tribunal. It is wide enough to include a proceeding
under the said Chapter of the Criminal Procedure Code.
It is submitted that criminal law is set in motion by
giving information to the police about the commission of
cognizable offence and the police are bound to investigate that
accusation and file report under Section 173 of the
Cr.P.C.
For
understanding
the
meaning
of
expression
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1914 1 KB 122
AIR 1962 MP 73
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15
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No
criminal
proceedings
whatsoever
shall
be
..
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AIR 1978 SC 68
(1990) 1 SCC 109
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reasonably
be
comprehended.
The
provision
of
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FIR
would
qualify
the
expression
criminal
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29.
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216 (220).
Instituted (proceedings) See (1897) 1 Q.B. 159.,
19 Bom.46.
Institution The term institution does not mean
merely the original institution or the first establishment
of a society, since that may be altered as many
institutions have been, but the purposes to which it is
applied at the present time. (1960) 3 ALL. E.R. 715
(728) (1849) 3 Exch. 349. It means an undertaking
formed to promote some defined purpose having in view
generally the instruction or education of public. 1896
A.C. 500.
Institution of proceedings The word institute
means laying of an information before a Magistrate.
Mere presentation of challan by police under S. 173,
Cr.P.C., in a Magistrates Court or mere presentation of
complaint by a private individual cannot be said to
constitute the institution of proceedings. 1944 S. 103,
(1914) I. K.B. 122 (123) = 109 L.T. 822 = 23 Cox. C.C.
631, 1927 C. 721. (1939) 3 All. E.R. 540. Institution of
proceedings do not include search, arrest, investigation.
1928 P. 146 See 1957 Mad. 216 (220).
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Indeed, the privilege in Clause (2) and Clause (3) of Article 361
is confined during the term of office and there would be no such
bar to proceed, soon after the incumbent ceases to hold the office
either by efflux of time or because of resignation or removal.
37. Although the learned Advocate General had stoutly relied
on the decision of the Hyderabad High Court in the case of
H.E.H. the Nizam Rajpramukh of Hyaderabad per Khan
Bahadur C.B. Tarapurwala, General Power of Attorney
(supra),
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further that intendment. In para 38, the Court opined that there is
fine distinction between taking cognizance of an offence and
institution of criminal proceedings. The latter must be looked at
from the point of view of something done to commence such
proceedings. In para 40, it is held that the object of such
provision is not only to prohibit the Heads of the executive from
being exposed to criminal proceedings during their term of
office, but also to avoid any publicity whatever in relation to
any alleged offence, because it is necessary in the interests of
the State and good government that those persons should as long
as they are holding the office, be kept free from involvement in a
criminal Court. The Court after adverting to the legal precedents
opined that the insertion of the word whatsoever makes a great
difference in the interpretation of an exempting clause, and to
enlarge its operation. Indeed, in the later part of the decision in
para 45 while considering the question whether laying of an
information or the issue of search warrant by a Magistrate before
he orders enquiry or investigation may amount to institution of a
criminal proceedings, it opined that the words, whatsoever
used with the words criminal proceedings in Article 361 (2),
might enlarge the scope of this immunity it did not decide that
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361 and in particular Clauses (2) and (3) thereof, which are
markedly distinct. As is noticed, the immunity extended to the
Head of a State in terms of Article 361 (2) is absolute on
fulfillment of the conditions specified therein, inter-alia the
proceedings must be criminal proceedings instituted in any
Court. Article 361 (3) predicates absolute prohibition of issuing
process of arrest or imprisonment of the Head of a State by any
Court during his term of office. The moot question examined in
that decision was whether the power to be exercised by the
Governor was discretionary in nature and not based on the aid
and advice of the Council of Ministers and that the exercise of
discretion is not justiciable.
54. Even the decision in the case of Dr. S.C.Barat and
another (supra) of the Division Bench of this Court will be of no
avail to the respondents for the same reason. For, the issue
before the Court was in the context of the provision in Section
11 (2) of Jabalpur University Act, 1956. The Court was called
upon to examine whether the committee consitituted under that
provision is merely advisory and it is not open to the Chancellor
to ignore its recommendation. This is noticed from the final
decision in the same case reported in AIR 1962 MP 180. In
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and in paragraph 38 observed thus :It is fairly well settled that First Information
Report is not a substantive piece of evidence and it can
be used only to discredit the testimony of the maker
thereof and it cannot be utilized for contradicting or
discrediting the testimony of other witnesses. In other
words, the First Information Report cannot be used with
regard to the testimony of other witnesses who depose in
respect of incident. It is equally well settled that the
earliest information in regard to commission of a
cognizable offence is to be treated as First Information
Report. It sets the criminal law in motion and the
investigation commences on that basis. Although First
Information Report is not expected to be encyclopedia of
events but an information to the police to be `first
information report' under Section 154(1), must contain
some essential and relevant details of the incident. A
cryptic information about commission of a cognizable
offence irrespective of the nature and details of such
information may not be treated as First Information
Report.
59. In the present case, the FIR has been registered on the
information given by D.S.Baghel, Deputy Superintendent of
Police, the informant. Further, the impugned FIR contains facts
which have been gathered during the investigation of other
crimes of similar type, by the informant. The specific role played
by the petitioner (named as accused No.10) has not been stated,
except the general information received from co-accused that the
petitioner had recommended names of five candidates. As is well
settled, the other information regarding the complicity of a
person can always be gathered during the investigation.
However, we do not wish to dilate any further on the other issues
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61.
AM.
(Rohit Arya)
Judge