Rakesh Kumar Sharma vs State Of U.P. And Another
2021 Latest Caselaw 2998 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 28.01.2021
 
Delivered on 24.02.2021
 
Court No. - 64
 

 
Case :- APPLICATION U/S 482 No. - 4888 of 2020
 
Applicant :- Rakesh Kumar Sharma
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Prashant Kumar Singh
 
Counsel for Opposite Party :- G.A.,Tejasvi Misra
 

 
Connected with 
 
Case :- APPLICATION U/S 482 No. - 4926 of 2020
 
Applicant :- Suresh Kumar Sharma And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Prashant Kumar Singh
 
Counsel for Opposite Party :- G.A.,Tejasvi Misra
 

 
Hon'ble Raj Beer Singh,J.

1. The first application under Section 482 Cr.P.C. No. 4888 of 2020 has been filed by applicant Rakesh Kumar Sharma for quashing the entire proceedings of complaint case no. 4012 of 2019, (Mukesh Sharma vs. Rakesh Sharma And Others), under Sections 323, 406, 420, 452, 506 IPC, police station Chakeri, District Kanpur Nagar, pending in the court of Additional Chief Metropolitan Magistrate, Court No. 1, Kanpur Nagar as well as for quashing the summoning order dated 17.10.2019 passed in the above-stated complaint case.

2. The second application under Section 482 Cr.P.C. No. 4926 of 2020 has been filed by applicants Suresh Kumar Sharma and Rishabh Kumar Sharma seeking same relief i.e. for quashing the entire proceedings of complaint case no. 4012 of 2019, (Suresh Sharma v. Rakesh Sharma And Others), under Sections 323, 452, 506 IPC, police station Chakeri, District Kanpur Nagar pending in the court of Additional Chief Metropolitan Magistrate, Court No. 1, Kanpur Nagar as well as for quashing the summoning order dated 17.10.2019 passed in the above-stated complaint case.

3. As the above-stated two 482 Cr.P.C. applications pertain to one and the same matter, thus both the applications are being heard and decided together by this common order with the consent of learned counsel for the parties.

4. Heard Sri Prashant Kumar Singh, learned counsel for the applicants, Sri Tejasvi Mishra, learned counsel for opposite party no. 2, learned A.G.A. for the State and perused the entire record.

5. It has been argued by learned counsel for the applicants that applicants, namely, Rakesh Kumar Sharma and Suresh Kumar Sharma are step brothers of complainant/opposite party no. 2 Mukesh Sharma alias Surendra and applicant Rishabh Kumar Sharma is nephew of complainant/opposite party no. 2 and that earlier the mother of applicants Rakesh Kumar Sharma and Suresh Kumar Sharma has died under suspicious circumstances, but the family of their grand-maternal father has not taken any action against the father of applicants. After that as per oral compromise, agricultural land of Arazi no. 289 measuring 6.10.0 bigha was purchased in the names of applicants Rakesh Kumar Sharma and Suresh Kumar Sharma through registered sale-deed dated 29.01.1972. It was submitted that one Vinod Kumar Tripathi and Pramod Kumar Tripathi have executed a registered power of attorney in favour of applicant Rakesh Kumar Singh and one Harpal Singh on 28.04.2000 in respect of Arazi nos. 657 and 670 and thereafter applicant Rakesh Kumar Singh and said Harpal Singh have executed a sale-deed in favour of complainant/opposite party no. 2 Mukesh Sharma alias Surendra and one Smt. Basudha Singh vide registered sale-deed dated 17.09.2001 and after that opposite party no. 2 and Smt. Basudha Singh have executed a registered power of attorney in favour of applicant Rakesh Kumar Singh and one Harpal Singh on 22.02.2005 in respect of Arazi no. 657 and after that on the basis of said power of attorney, applicant Rakesh Kumar Singh and said Harpal Singh have sold the aforesaid land to different persons from the year 2006 to 2011 and they have handed over the sale consideration to opposite party no. 2 and that till 2017, opposite party no. 2 has not raised any dispute in that regard, but now he has filed the impugned complaint making false and baseless allegations with mala fide intention to grab the family properties. Learned counsel for the applicants has submitted that applicant Rakesh Kumar Singh has sold the disputed land on the basis of registered power of attorney and thus, no offence against the applicants is made out and that matter in dispute is purely of civil nature. It was further submitted that the allegations regarding house trespass, assault and theft made against applicants, are false and baseless and that no such incident has taken place and that in alleged incident no one has sustained any injury. Learned counsel has submitted that impugned summoning order has been passed without considering the matter in correct perspective and without applying the judicial mind. It was also submitted that in fact the dispute, if any, was amongst the co-sharer with regard to the family properties and no prima facie case is made out against the applicants and thus, the impugned summoning order and proceedings are liable to be set aside.

6. On the other hand, learned A.G.A. as well as learned counsel for opposite party no. 2 have opposed the application and argued that there are clear allegations that on 29.04.2019, applicants have trespassed into the house of opposite party no. 2, assaulted him and threatened that if opposite party no. 2 did not pay Rs. 5 lacs to them, they would kill him. It was submitted that in inquiry under Section 202 Cr.P.C., witnesses have also supported the version of complainant/opposite party no. 2. It was further submitted that no illegality or perversity could be shown in the impugned summoning order and in view of the material on record, it cannot be said that no prima facie case is made out against the applicants.

7. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.

8. In the instant case perusal of record shows that substance of allegations of complainant/opposite party no. 2 Mukesh Sharma alias Surendra against the applicants is that regarding the dispute of property, on 29.04.2019 they have trespassed into the house of opposite party no. 2, assaulted and threatened him that if opposite party no. 2 did not pay Rs. 5 lacs to them, they would kill him. The version of the complainant/opposite party no. 2 is supported by his statement under Section 200 Cr.P.C. and by the witnesses examined under Section 202 Cr.P.C. In fact, the submissions raised by learned counsel for the applicants call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and 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. In view of allegations, it cannot be said that no prima facie case is made out.

9. After considering arguments raised by the learned counsel for parties and perusing the impugned complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 Cr.P.C. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C. No such ground appears to be available to the applicants, on the basis of which the impugned complaint can be quashed going by the settled law laid down in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 SCC (Cr.) 283.

10. Similarly so far as the impugned summoning order is concerned, perusal of material on record shows that the impugned order has been passed by applying due procedure and no substantial illegality, perversity or any other substantial error could be pointed out. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C. are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power can not be exercised to stifle a legitimate prosecution. Such powers have to be exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice.

11. In view of the aforesaid, no case for quashing of impugned proceedings of the aforesaid complaint case and summoning order is made out and accordingly, in both the instant applications under Section 482 Cr.P.C. the prayer for quashing of impugned proceedings and summoning order is, hereby, refused.

12. However, keeping in view the facts of the matter, it is directed that in case applicants appear and surrender before the Court below and apply for bail within a period of 45 days from today, their bail application shall be considered and decided expeditiously in accordance with settled law. For a period of 45 days from today or till the applicants surrender before the court below, whichever is earlier, no coercive action shall be taken against the applicants. Applicants would also be at liberty to move an appropriate application for discharge at appropriate stage, in accordance with law.

13. With the aforesaid observations, the above-stated two applications under Section 482 Cr.P.C. are disposed of finally.

Order Date :- 24.02.2021

Anand