Mohit Sharma vs State Of U.P. And 2 Others
2022 Latest Caselaw 72 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?
 
A.F.R.
 
Court No. - 89
 

 
Case :- APPLICATION U/S 482 No. - 1482 of 2022
 

 
Applicant :- Mohit Sharma
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Yadvendra Mani Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Anil Kumar Ojha,J.

Heard learned counsel for the applicant, learned A.G.A. for the State by means of Video-Conferencing and perused the record.

This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the order dated 02.12.2021 passed by Addl. District & Sessions Judge/Special Judge, (POCSO Act), Court No. 1, Muzaffar Nagar in S.T. No. 410 of 2018 (State Vs. Mohit Sharma) arising out of Case Crime No. 1426 pf 2016 under Sections 363, 376-D, 377 IPC & Section 3/4 of POCSO Act, P.S. New Mandi, District Muzaffar Nagar whereby applicant's discharge application under Section 227 Cr.P.C. has been rejected.

Submission of learned counsel for the applicant is that applicant has been falsely implicated in this case. Applicant has not committed the alleged offence. Impugned order dated 2.12.2021 has been wrongly passed. There is no evidence against the applicant so charge cannot be framed against him, hence, this Petition.

Per-contra, learned A.G.A. opposed the prayer and submitted that victim in her statement under Sections 161 and 164 Cr.P.C. has implicated the applicant. Statement of victim is itself sufficient for framing the charge against the applicant.

In Amit Kapoor Vs. Ramesh Chander and Another (2012) 9 SCC 460, Hon?ble Apex Court has held in para 19 that at the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that accused has committed an offence, which if put to trial, could prove him guilty. All that the Court has to see is that the matter on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.

Relevant portion of the aforesaid judgement is quoted hereinbelow:

"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533] : (SCC pp. 41-42, para 4)

?4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ?the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing?, as enjoined by Section 227. If, on the other hand, ?the Judge is of opinion that there is ground for presuming that the accused has committed an offence which? ? (b) is exclusively triable by the court, he shall frame in writing a charge against the accused?, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.?

............................................

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 exercisedex debito justitiaei.e. to do real and substantial justice for administration of which alone, the courts exist.

[Ref.State of W.B.v.Swapan Kumar Guha[(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] ;Madhavrao Jiwajirao Scindiav.Sambhajirao Chandrojirao Angre[(1988) 1 SCC 692 : 1988 SCC (Cri) 234] ;Janata Dalv.H.S. Chowdhary[(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] ;Rupan Deol Bajajv.Kanwar Pal Singh Gill[(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] ;G. Sagar Suriv.State of U.P.[(2000) 2 SCC 636 : 2000 SCC (Cri) 513] ;Ajay Mitrav.State of M.P.[(2003) 3 SCC 11 : 2003 SCC (Cri) 703] ;Pepsi Foods Ltd.v.Special Judicial Magistrate[(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128] ;State of U.P.v.O.P. Sharma[(1996) 7 SCC 705 : 1996 SCC (Cri) 497] ;Ganesh Narayan Hegdev.S. Bangarappa[(1995) 4 SCC 41 : 1995 SCC (Cri) 634] ;Zandu Pharmaceutical Works Ltd.v.Mohd. Sharaful Haque[(2005) 1 SCC 122 : 2005 SCC (Cri) 283] ;Medchl Chemicals & Pharma (P) Ltd.v.Biological E. Ltd.[(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869] ;Shakson Belthissorv.State of Kerala[(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412] ;V.V.S. Rama Sharmav.State of U.P.[(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356] ;Chunduru Siva Ram Krishnav.Peddi Ravindra Babu[(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297] ;Sheonandan Paswanv.State of Bihar[(1987) 1 SCC 288 : 1987 SCC (Cri) 82] ;State of Biharv.P.P. Sharma[1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260] ;Lalmuni Deviv.State of Bihar[(2001) 2 SCC 17 : 2001 SCC (Cri) 275] ;M. Krishnanv.Vijay Singh[(2001) 8 SCC 645 : 2002 SCC (Cri) 19] ;Savitav.State of Rajasthan[(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] andS.M. Dattav.State of Gujarat[(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201] .]

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."

Keeping in view the aforesaid principles of the Hon?ble Apex Court the facts of the case are being examined and analyzed.

Perusal of the record reveals that a case was registered at P.S. New Mandi, District Muzaffar Nagar in Case Crime No. 1426 of 2016 under Sections 363, 376D against the applicant. Police investigated the matter and recorded the statement of witnesses including the victim and after collection of evidence and conclusion of investigation, submitted charge-sheet in the matter.

Victim in her statement recorded under Section 161 Cr.P.C. has implicated the applicant. Her statement under Section 164 Cr.P.C., photocopy of which at page no. 59-60 of the paper-book is as follows:

??????? 13/09/2016 ??? ?? 5.30 ??? ?? ??? ??? ??? ???? ???? ???? ????? ????? ?? ??? ???? ????? ?? ????? ???? ??? ??? ??? ??? ????? ???? ??? ?? ????? ???? ???? ?? ???? ?????? ???? ?? ??? ?? ???? ???? ?????????? ?? ??? ??? ???? ??????? ?????? ??? ???? ??? ???????? ???? ??? ???? ???? ????? ????? ??/?? ???????? ?????, ???? ???? ???????? ????? ??? ?? ???? ??? ?? ????? ??? ????? ???? ????? ????? ????? ???? ???? ??? ??? ???? ??? ?? ???????? ???? ?? ????? ?????? ?? ???? ??? ???? ??? ??? ???? ????? ?? ???? ???? ?? ??? ?? ?? ???? ???? ??? ?? ??? ??? ??? ???? ???? ???? ?? ???? ???? ????? ???? ???? ??? ???? ????? ??? ????????? ???? ???? ??? ???? ?????? ???? ??????? ??? ??? ?? ??? ???? ???? ???? ???? ??? ??? ????? ???? ?? ???? ?? ???? ??? ??? ???? ??? ??? ???? ???? ??????? ?? ?? ???? ??? ??????? ??? ?? ???? ?? ???? ???? ???? ???? ??? ???? ?? ???? ????? ?? ??? ??? ??? ??? ??? ????? ???? ?? ???????? ???? ????? ???? ???? ???? ???? ??? ??? ?? ??? ???? ??? ??? ?? ???? ??? ???? ???? ??? ???? ??? ?? ???? ??? ?? ? ???? ???? ??? ??? ????? ???? ???? ???? ?? ??????? 15/09/2016 ?? ?? ????? ???? ??? ??? ???? ???? ??? ?? ?? ??? ?? ??????? ????? ???? ??? ?? ??? ???? ???? ??? ?

Perusal of the above statement of the victim during investigation shows that victim is minor. Offence has been committed against her. There is sufficient material to frame charge against the applicant. Appraisal of evidence is not permissible in proceedings under Section 482 Cr.P.C.

In view of the above, the present Application lacks merit and is liable to be dismissed.

Accordingly, this Application under Section 482 Cr.P.C. is dismissed at the admission stage itself.

Order Date :- 4.2.2022

A. Mandhani