Mohit Chaudhary vs State Of U.P. And Another
2015 Latest Caselaw 5300 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 27
 

 
Case :- APPLICATION U/S 482 No. - 32940 of 2015
 
Applicant :- Mohit Chaudhary
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Samit Gopal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. This Criminal Misc. Application No. 32940 of 2015 has been preferred under Section 482 Cr.P.C. with prayer to quash the proceedings of G.S.T. No. 350 of 1999, State of U.P. Vs. Rakesh Chaudhary and others, arising out of Case Crime No. 376 of 1997 under Section 2/3 of the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station Kotwali, District Mathura as well as the summoning order dated 29.10.1999 passed by the Special Judge (Gangsters Act), Agra in aforementioned G.S.T No. 350 of 1990. Further prayer is to stay the proceedings of G.S.T. No. 350 of 1999 and also the summoning order dated 29.10.1999 during the pendency of the present application.

2. Heard Sri G.S. Chaturvedi, learned counsel for the applicant and learned A.G.A. for the State.

3. It has been contended on behalf of the applicant that the learned court below has passed a cryptic order without assigning any reasons. It is further submitted that in all the cases mentioned in the gang-chart, the applicant has been acquitted. The applicant is a qualified advocate on record of the Hon'ble Supreme Court of India. He has a law firm at New Delhi and does legal consulting and litigation cases on behalf of various Indian and Foreign Corporate Groups, Legal Entities and their subsidiary companies. It is further submitted that the applicant has been Standing Counsel for various Public Sector Banks/Entities like PNB, Allahabad Bank, NSIC etc. He has worked in various heavy stakes tax matters as a panel counsel for the Union of India before the Hon'ble Apex Court and presently is designated as Standing Counsel for State of J & K before the Hon'ble Apex Court with the status of Additional Advocate General. He has also been appointed as amicus curiae in matters by the Hon'ble Apex Court. He has also qualified A.R.O. Exam. He has been falsely implicated due to enmity when he was a student. On 29.10.1999, cognizance was taken by the Court. No notice of any kind was ever served upon the applicant. Thereafter, bailable warrants were issued against him which were also not served. Later on, non-bailable warrants were ordered to be issued. The applicant and co-accused Rakesh Chaudhary after lodging of the F.I.R. moved bail application (bearing number 353 of 1997) before the Special Judge (Gangsters Act), Agra but, ultimately, the bail application was rejected in absence of the applicant. No approval/sanction was granted by the District Magistrate. Thus, the prayer sought for is liable to be allowed.

4. Learned A.G.A. while supporting summoning order has stated that the relief prayed for in this application cannot be granted under the provisions of Section 482 Cr.P.C.

5. I am required to consider whether such an application under Section 482 Cr.P.C. with the prayer, as aforesaid, is entertainable. The scope of Section 482 Cr.P.C., as is evident from a bare reading of aforesaid provision, can be culled out from the provision itself, which reads as under:-

"482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." (emphasis added)

6. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Supreme Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive on the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. I need not go into various aspects in detail but it would be suffice to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588 and Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74.

7. In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, it was reiterated that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.

8. In the present case, fortunately and interestingly it is not the allegation of applicants that there is any non-compliance of order passed by Court under Cr.P.C. or that there is any abuse of process on the part of Court or that there is any failure or travesty of justice on the part of Court below.

9. In 2008 (62) ACC 650, Pankaj Kumar Vs. State of Maharashtra, the Hon'ble Court has laid down as under

"10. ....The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised saparingly, with circumspection and in the rarest of rare cases, where the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. (See: Janata Dal v. H.S. Chowdhary and others, Kurukshetra University and another v. State of Haryana and another, and State of Haryana and others v. Bhajan Lal and others).

11. Although in Bhajan Lal's case (supra), the Court by way of illustration, formulated as many as seven categories of cases, wherein the extra-ordinary power under the aforestated provisions could be exercised by the High Court to prevent abuse of process of the Court yet it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of the circumstances in which such power could be exercised."

10. In State of Haryana and others Vs. Ch. Bhajan Lal and others reported in AIR 1992 Supreme Court 604, the Hon'ble Apex Court while referring the case of R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 866, has observed in para 88 as under:-

88. Gahendragadkar, J. speaking for the Court while considering the inherent powers of the High Court in quashing the First Information Report Under Section 561-A of the old Code (corresponding to Section 482 of the new Code) in R.P. Kapur v. The State of Punjab (cited above) at page 393 made the following observation:-

Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issues against the accused person.

11. In State of Haryana and others Vs. Ch. Bhajan Lal and others (supra), the Hon'ble Apex Court has further observed in paras 105 and 106 as under:-

"105. 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 extra-ordinary 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, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155 (2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where theproceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

106. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim and caprice."

12. Thus, the factual aspect of the matter cannot be examined by this Court while examining the matter under Section 482 Cr.P.C. The cases mentioned in the gang-chart have ended in acquittal or not has to be seen by the trial court while deciding the case of applicant under Section 2/3 Gangster Act. The validity of the approval/sanction of the D.M. can also be looked into by the trial court. The matter is pending since 1999 and the applicant has not yet surrendered.

13. Accordingly, this application has no force, which is dismissed.

Order Date :- 10.12.2015

Ram Murti