Mahendra Kumar vs State Of U.P. & Anr.
2021 Latest Caselaw 813 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 29
 

 
Case :- U/S 482/378/407 No. - 3066 of 2020
 

 
Applicant :- Mahendra Kumar
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Applicant :- Pankaj Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Pankaj Kumar Srivastava, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P.

2. By means of present application u/s 482 Cr.P.C., the applicant as prayed for quashing the Charge Sheet No. 325/2018, dated 14.11.2018 as well as summoning order dated 27.07.2020, passed by the Judicial Magistrate-II, Hardoi in Criminal Case No. 8973 of 2020 (IPHRO 40119842020) - State Vs. Mahender, arising out of Case Crime No. 224 of 2018, under Sections 308, 323, 504, 506, 452, 427 I.P.C., Police Station - Kachhauna, District - Hardoi.

3. It has been submitted by learned counsel for the applicant that the first information report was lodged on 29.06.2018 by opposite party no. 2 which was registered as Case Crime No. 224 of 2018, under Sections 308, 323, 504, 506, 452, 427 I.P.C., Police Station - Kachhauna, District - Hardoi. He further submits that as per the first information report it has been alleged that there is public path way in front of house of complainant and the applicant and his family members started abusing father of the complainant. On being requested not to abuse them, the accused persons started beating father of the complainant with fists and danda and he fell down on the 'khadanja' and received serious injuries. The accused persons also damaged the house of the complainant. The injured i.e. father of the complainant was referred to Trauma Center where he was undergoing treatment at the time of registration of first information report. It has also been stated that in the medical report of the injured it has come that 'trachea' was broken and he was beaten black and blue and also stated that the accused are hardened criminals. He submits that the applicant has been falsely implicated in this case due to previous enmity among the families of the applicant and complainant.

4. Learned Additional Government Advocate has opposed the application and has stated that during investigation, statements of eight witnesses were recorded some of which have been annexed with the application. The complainant in his statement recorded under Section 161 Cr.P.C. has reiterated the contents of the FIR. The Doctor who had treated father of the complainant, in his medical report has recorded that the injured has received serious injuries. Similarly, statement of one Shiv Prasad Sharma who was a witness of the occurrence has also been recorded where he has confirmed the fact that the complainant's father was beaten by the accused and he received serious injuries and was referred to the hospital and that the severity of the injuries was such that father of the complainant was unable to move. In this regard statements of Ram Chander and Babu Ram were also recorded.

5. Heard learned counsel for the parties and perused the record.

6. From the perusal of record it is clear that the Magistrate after considering the entire material available on record has taken cognizance by means of order dated 27.07.2020. Learned counsel for the applicant while assailing the aforesaid order has stated that the injured was never examined and therefore the Magistrate at the very inception should not have taken cognizance and as such he has committed illegality and proceedings against the applicant are liable to be quashed.

7. Perusal of first information report as well as the documents annexed with the application would indicate that the injured who is father of the complainant was injured to the extent that his 'trachea' was damaged and was unable to breath and he received serious injuries on head as has been recorded in the medical report of the injured which has also been annexed, it is also mentioned in the medical report that the injured received serious injuries and that he was unable to move.

8. In State of Haryana vs. Bhajan Lal and others, 1992 Supp (1) 335, issue of jurisdiction of this Court under Section 482 Cr.P.C. has been considered and what is laid down therein in paragraph 102, has been repeatedly followed and reiterated consistently. In a very recent judgment in Google India Private Limited Vs. Visakha Industries and Ors., (2020) AIR SC 350, guidelines laid down in paragraph 102 in Bhajal Lal's case (supra) have been reproduced as under :

"102. 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 extraordinary 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 FIR 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 FIR 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 the proceeding 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."

9. Court has also reproduced note of caution given in paragraph 103 in Bhajan Lal's case (supra) which reads as under :

"103. 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 FIR 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 or caprice."

10. What would be the scope of expression "rarest of rare cases" referred to in para 103 in State of Haryana vs. Bhajan Lal (supra) has been considered in Jeffrey J. Diermeier and Ors. Vs. State of West Bengal and Ors., (2010) 6 SCC 243, Court has said that words "rarest of rare cases" are used after the words 'sparingly and with circumspection' while describing scope of Section 482 CrPC. Those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash FIR or criminal proceedings should be used sparingly and with circumspection.

11. After perusing the entire material available on record as well as legal position discussed above, I do not find any infirmity in the impugned order of cognizance passed by the Magistrate. The case clearly discloses cognizable offence.

12. The application lacks merit and is accordingly rejected.

Order Date :- 13.1.2021

A. Verma

(Alok Mathur, J.)