STATE OF U.P. AND ANR. versus NITIN AGNIHOTRI AND ANR.

[2008] 11 S.C.R.26

STATE OF U.P. AND ANR.

NITIN AGNIHOTRI AND ANR. (Criminal Appeal No.1126 of 2008)

JULY 21, 2008

[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]

Cost - Imposition of - FIR JOdged - Allegation t/Jat daughter of complainant was abducted by Respondent No.1 · [-][ Writ petition ][by ][Respondent No.1 for quashing ][of ][FIR-: ][High ]Court quashed FIR and all consequential proceedings against· Respondent No. 1 - However, imposed cost on State af!d com-plain ant - On appeal, held: Order of High Court so· far as it related to imposition of cost was without basis since there was [no finding recorded by it that the police officials; were remiss ]in any way and/or had committed any lapse during investiga-tion - In absence of any reason for imposing cost, direction for payment of cost cannot be sustained and is set aside ...:. Constitution of India, 1950 - Art. 226 - Penal Code, 1860 ...:.

E· [s.366. ]

Respondent No.2 lodged FIR stating that Respon-dent No.1 alongwith his mother and sister had abducted his daughter. The FIR was registered as Crime Case un-der Section 366, IPC. Respondent No.1 filed writ petition seeking for issuance of writ in the nature of certiorari for quashing of the FIR. High Court quashed the FIR and all consequential proceedings against Respondent No~ 1 and imposed cost of Rs.50,000/- on the State and Respondent No.2.

In appeal to this Court, Appellant-State contended

that the police authorities had investigated into the mat-ter on the basis of the complaint and the High Court was not justified in directing imposition of cost when it did not notice any lapse on the part of the concerned authorities.

& ANR. [DR. ARIJIT PASAYAT, J.]

Allowing the appeal, the Court

HELD:1.The impugned order of the High Court so far as it relates to the imposition of cost is founded on no basis. There is not even finding recorded that the po-lice officials were remiss in any way and/or had commit-ted any lapse during investigation. In the absence of any reason having been indicated by the High Court as to why the Court felt necessary for imposing cost, the direction for payment of cost cannot be sustained and is set aside. [Para 5] [29-E,F,G]

2. The Courts should not impose cost in the manner

done· in the present case without recording any finding as to why imposition of cost was considered necessary. Unless any lapse on the part of any authority is found and opportunity is granted to the alleged erring official, cost should not be imposed. Whenever it is felt that cost is to be imposed, the reason for such conclusion has to be recorded. [Para 6] [29-G, 30-A]

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1126 of 2008

From the final Judgment and order dated 28/6/2005 of

the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 4120(MB) of 2005

Shail Kumar Dwivedi, A.A.G., Sahdev Singh Gunnam Venkate~wara Rao and Vibha Dwivedi for the Appellants.

Siddharth Bambha, M.A. Krishna Moorthy, K. Krishna Kumar and Anish Kumar Gupta for the Respondents.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment of Division Bench of the Allahabad High Court, Lucknow Bench, Lucknow in Writ Petition No. 4120 (M/B) of 2005.

3. Background facts in nutshell are as follows:

; The aforesaid writ petition was filed by respondent No.1, practicing advocate in the High Court of Allahabad fpr issu-.ance.of writ petition in the nature of certiorari for quashing the [FIR registered as Crime Case No.165/2005 under Section 366 ]of; the Indian Penal Code, 1860 (in short the 'IPC') in Police Station, Krishna Nag.ar, Lucknow and for certain other reliefs. It was stated that FIR dated 9.6.2005 was lodged by Sardar Mahendra Singh- respondent No.2 at the aforesaid police sta-c [tion. ][In ][the FIR it was stated that respondent.No.1 alongwith his ]mother and sister had abducted daughter of respondent No.2 ~ ~ ' ~ ' . . . . " 0118:6.2005.at 7.30 p.tn. After the FIR was lodged, police started investigation and recorded the statement of wife of the com-plainant. Statement of one Kamaljit. Kaur was also recorded wh9s:e v~rsion was same as that of ~mt. Manjit Kaur. The statB·-D ni~nf,of ~agjitKaur, aunt of the abducted girl was also recorded . . ·on 20.6}005 statement of ArunKumar Singh was recorded by the police. According to him at about 8.00 p.m. he had seen the girl alongwith present respondent No.1-Nitln Agnihotri on rick-shaw. The statements of Raj Kumar and Sanjeev Sabarwal neighbours of the complainant were also recorded. Father and mother of the accused were arrested by the police on 21.6.05. ·The High Court by an interim order stayed the further·investiga-tion in Crime Case No.165/05. By an order dated 27.6.05 it further held that FIR against Nitin Agnihotri by respondent No.-2 was filed with oblique motive. The High Court restrained the authorities and directed that they should not interfere with the pepceful living of the accused persons in connection with the FIR referred to above. The High Court also directed grant of protection to Ms. Neena Agn!hotri and observed that she was [free to go and stay at any place she desired. direction was ]given for her appearance on 25.6.2905 under police force pro-tection. On 28.6.2005 the High Court quashed the FIR and all consequential proceedings including Crime Case No.165/05 pending before learned Specia: Chief Judicial Magistrate (Gus·· [toms), Lucknow. The accused ][persons_.in ][the FIR were directed ]

to be set free and the Judicial Magistrate was directed to take cognizance,under Section 181 of the Code of Criminal Proce-dure, 1973 (in short 'the Code') against respondent No.2 for filing with oblique motive the FIR. Before the said order was signed Ms. Neena Arora complained that she was being threat-ened by her-in-laws. The concerned Bench of the High Court 8 was again constituted and order was passed that Shri Manornm Agnihotri and his wife were to be released, and security was to be provided to Nitin Agnihotri and his wife and the authorities were to ensure that the aforesaid persons were not harassed in any way. The High Court thereafter in the concluding para of the judgment held that it was fit case where cost of Rs.50,000/ - was to be imposed against the State and respondent No.2-the father of the girl. The High Court further observed that impo-sition of cost on respondent No.2 would create rift between the two families and cost should not be paid by respondent No.2 0 on giving an undertaking that he would re-concile to the situa-tion:

4. Learned counsel for the appellant-State submitted that

the police authorities had investigated into the matter on the basis of the complaint. They were performing their duties and have recorded the statements of various, persons. The High Court did not notice any lapse on the part of the authorities and yet directed imposition of cost as aforesaid.

5. We find that the impugned order of the High Court so

far as it relates to the imposition of cost is founded on no basis. There is not even finding recorded that the police officials were remiss in any way and/or had committed any lapse during investigation. In the absence of any reason having been indi-cated by the High Court as to why the Court felt necessary for imposing cost, the direction for payment of cost cannot be sus-tained and is set aside.

6. Before parting with the case, we would like to indicate

that the courts should not impose cost in the manner done in the present case without recording any finding as to why impo~

sition of cost was considered necessary. Unless any lapse on the part of any authority is found and opportunity is granted to the alleged erring official, cost should not be imposed. When-ever it is felt that cost is to be imposed' the reason for such conclusion has to be recorded.

7 .. The appeal is allowed. There shall be no order as to costs.

Appeal allowed.