Rajkumar Agrawal @ Raju Garg vs State Of U.P. And Another
2018 Latest Caselaw 3992 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- APPLICATION U/S 482 No. - 38100 of 2018
 

 
Applicant :- Rajkumar Agrawal @ Raju Garg
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Prashant Vyas,Sri Gopal S. Chaturvedi, Senior Advocate
 
Counsel for Opposite Party :- G.A.,N . I. Zafri
 

 
Hon'ble Ved Prakash Vaish,J.

1. Heard Sri Gopal S. Chaturvedi, Senior Advocate assisted by Sri Prashant Vyas, learned counsel for the applicant, Sri Sanjay Sharma, learned A.G.A. for the State and have carefully perused the material on record.

2. By way of present application under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') the applicant calls in question the order dated 22.9.2018 passed by learned Sessions Judge, Kanpur Nagar in S.T. No.634 of 2014 (State Vs. Rajkumar Agrawal @ Raju Garg and others, arising out of Case Crime No.211 of 2014 whereby the charges for the offence under Sections 302, 120B, 149 I.P.C. and 7 of Criminal Law Amendment Act and 3/25 Arms Act were framed against the applicant.

3. The brief facts of the case are that on 26.5.2014, respondent no.2, namely, Vishal Gupta lodged a first information report against the applicant, Santosh Kureel and two unknown persons; on the basis of said complaint, Case Crime No.211 of 2014 was registered at Police Station Govind Nagar, District Kanpur Nagar. On completion of the investigation, the Investigating Officer submitted the charge-sheet against all the four accused persons, the case was committed to the Sessions Court and the trial was commenced as S.T. No.634 of 2014.

4. Learned Senior Counsel for the applicant submits that after committal of the charge-sheet, charges for the offence under Sections 302 read with 120B I.P.C. and Section 7 of Criminal Law Amendment Act and Section 3/25 Arms Act were framed on 15.6.2016 and trial commenced. The prosecution examined 12 witnesses. He also submits that the role assigned to the applicant is of conspiracy in respect of the murder of the deceased, Prashant Gupta.

5. Learned Senior Advocate further submits that a pistol was recovered on the alleged pointing out of the applicant and the same was sent to the Science & Forensic Laboratory, Lucknow and the report of the Forensic Laboratory does not support the case of the prosecution.

6. Lastly, learned Senior Advocate for the applicant submits that charges have already framed against the applicant on 15.6.2016 and again, the charges were framed on 22.9.2018 without any basis.

7. On the other hand, learned A.G.A. for the State submits that the charges were framed on 15.6.2016. The applicant did not challenge the said order of framing charge. Learned A.G.A. has also pointed out that after recording statement of some prosecution witnesses, the charge has been amended and Section 149 I.P.C. has been added in the charge. He has also pointed out that all the prosecution witnesses have been examined and statement of accused persons under Sections 313 Cr.P.C. has been recorded.

8. I have carefully considered the submissions made by learned counsel for both the parties.

9. Before examining the facts of the present case it would be appropriate to consider the scope of interference of Section 482 of Cr.P.C. The Hon‟ble Supreme Court of India in "Dhanalakshmi v. R. Prasanna Kumar", (1990) Supp. SCC 686, observed as under: -

"Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/ offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.

The High Court without proper application of the principles that have been laid down by this Court in Sharda Prasad Sinha v. State of Bihar, S. Trilok Singh v. Satya Deo Tripathi and Municipal Corpo. Of Delhi V. Purshotam Dass Jhunjhunwala proceeded to analyse the case of the complainant in the light of all the probabilities in order to determine whether a conviction would be sustainable and on such premises arrived at a conclusion that the proceedings are to be quashed against all the respondents. The High Court was clearly in error in assessing the material before it and concluding that the complaint cannot be proceeded with. We find that there are specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of. It is for the complainant to substantiate the allegations by evidence at a later stage. In the absence of circumstances to hold prima facie that the complaint is frivolous when the complaint does disclose the commission of an offence there is no justification for the High Court to interfere."

10. Further in "Amit Kapoor vs. Ramesh Chander & Anr.", (2012) 9 SCC 460, Hon'ble Supreme Court of India while dealing with the issue of interference at the stage of charge in a petition under Section 482 Cr.P.C. observed as under:-

"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."

11. While exercising jurisdiction under Section 482 of Cr.P.C. this Court would have ordinarily embarked an enquiry in order to determine whether the evidence in question is reliable or not or whether on a reasonable appreciation of it acquisition would be sustained or not. That is the function of the trial court. It is true that Court should be circumspect and judicious in misusing discretion and should take all relevant facts and circumstances into consideration. Though, the powers under Section 482 of Cr.P.C. are wide, however, such powers require care and caution in its exercise. The interference must be on sound principles and the inherent powers should not be exercised to stifle a legitimate prosecution. The above mentioned judgments clearly reflect that inherent powers while quashing criminal proceedings should be exercised sparingly and with circumspection. The framing of charge is an exercise of jurisdiction by the trial court in terms of Section 228 of Cr.P.C., unless the accused is discharged under Section 227 of Cr.P.C. Once the ingredients of this section with which the accused is charged are established, the Court would be well within its right in presuming that there is a ground to proceed against the accused and frame charge accordingly. The satisfaction of the Court in respect of ingredients of an offence and facts leading to an offence is a sine qua non for exercise of such jurisdiction. This presumption is not a presumption of law as such.

12. At the stage of consideration on charge, the Court is not required to assess, evaluate and weigh the prosecution evidence as it is done at the final stage. It is not open to shift and weigh the evidence as if the Court is conducting a mini trial and charge can be framed on the basis of grave suspicion and the evidential value of the statement recorded during the course of investigation is required to be seen at the time of trial. At this stage the Court is not required to meticulously go into the material placed on record by the prosecution and is only to consider whether prima facie their exists sufficient ground to proceed against the accused. A roving and phishing inquiry is impermissible and it is sufficient if the prosecution is able to show prima facie the commission of offence and the involvement of the charged person. It is immaterial whether the case is based on direct or circumstantial evidence and the Court is only required to see if prima facie there is sufficient ground for proceeding against the accused.

13. In the instant case, the case was registered on the statement of the respondent no.2 herein (Vishal Gupta), on completion of investigation, charge-sheet for the offence under Sections 302 read with 120B I.P.C. and Section 7 of Criminal Law Amendment Act and Section 3/25 Arms Act was framed on 15.6.2016. The applicant pleaded not guilty to the charge and claimed trial, therefore, the prosecution examined the witnesses. After recording statements of some witnesses, learned trial court amended the charge and charge for the offence under Section 302 read with 120B and 149 I.P.C. and Section 7 of Criminal Law Amendment Act and Section 3/25 Arms Act were framed vide impugned order dated 22.9.2018.

14. Considering the above legal propositions, it can be said that once a prima facie case is made out, the Court cannot delve into the merits of the case at the stage of framing of charges. I do not find any illegality or infirmity in the impugned order passed by learned trial court.

15. For the reasons stated above, the present application under Section 482 of Cr.P.C. is without any merit, the same is liable to be dismissed and the same is hereby dismissed.

(V.P. Vaish, J.)

Order Date :- 27.11.2018

Vivek Kr.