Tayyab Khan And Another vs State Of U.P. And Another
2022 Latest Caselaw 4834 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- APPLICATION U/S 482 No. - 13303 of 2022
 

 
Applicant :- Tayyab Khan And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pradeep Kumar,Mohd Achhay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Pradeep Kumar, learned counsel for the applicants and Sri Munne Lal learned A.G.A. for the State.

The applicant herein has filed the present application u/s 482 Cr.P.C. for quashing of the entire criminal proceeding against the applicants arising out of Case No. 888 of 2022, State of U.P. Vs. Tayyab Khan, relating to case crime no. 790 of 2019, u/s 452/323/504/506 IPC, P.S. Kotwali, District Fatehpur, pending in the court of learned Chief Judicial Magistrate, Fatehpur as well as quash the charge sheet no. 358/2020 dated 28.6.2020 submitted by the Investigating Officer.

Learned counsel for the applicants has sought to argue that a first information report has been lodged by the respondent no.2 who happens to be the complainant against the applicants and one another along with two unnamed persons before the P.S. Kotwali, District Fatehpur being F.I.R. No.790 of 2019 on 27.11.2019, under Sections 147/452/323/504/506 IPC relatable to the commission of the offences on 26.11.2019 with regard to the fact that the applicants have been alleged to have inflicted wound upon the complainant and others. He has further argued that the applicants herein and the complainant happens to be the brother and sister belonging to the same stream of family and thus primarily the said dispute can be said to be a family dispute which though has been given criminal tinch.

In nutshell, learned counsel for the applicants has further argued that even if the medico legal report of the complainant is taken into face value which is appended at page 20 of the paper book then the injury so sustained by the complainant case is simple. He has further argued that so far as the other injured being Reshma Jafar daughter of Jafar Hasan is concerned, she did not herself medically examined as she was absconding.

Learned counsel for the applicants has thus made a submission that the entire proceedings are vindictive and they have been sought to be lodged and device just to falsely implicated the applicants.

Countering the said submissions Sri Munne Lal learned A.G.A. has argued that even from the deposition of the complainant cognizable offences have been made out and there cannot be any doubt with regard to the fact that even in the first information report cognizable offences are made which cannot be interfered in a pre-trial stage that to in the proceedings purported to be under Section 482 Cr.P.C.

Recently, the Hon'ble Supreme Court has reiterated the principles of law as enumerated right from the decision in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192 and the paragraph no. 23 culled the following propositions of law which is enumerated hereinunder:-

"i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

This Court has also in application under Section 482 Cr.P.C. No.21881 of 2021 Rajesh Vs. State of U.P. has also followed the judgment in the case of M/S Neeharika, Infrastructure Pvt. Ltd. (Supra) and held that this Court cannot make a roving inquiry into the veracity of the allegations so contained in the first information report.

This Court after analysing the pleadings set forth by applicants and also the FIR & statement of witness finds that cognizable offence is made out.

On a pointed query, being made to learned counsel for the applicants, as to whether there was any jurisdictional error committed by the court below, the learned counsel for the applicants could not point out any jurisdictional error committed by the court below.

Resultantly, in absence of any jurisdictional infirmity or illegality pointed out by the learned counsel for the applicants, no good ground is made to quash the charge sheet as well as the summoning order, as even otherwise, this Court find that this is not a fit case wherein inherit jurisdiction power under section 482 Cr.P.C. 1973, be invoked.

Accordingly, there is no merit in the present application under section 482 Cr.P.C. accordingly, it is liable to be dismissed.

However, needless to point out that it is always open for the applicant to prefer appropriate application before the court below seeking bail which this Court has no reason to disbelieve the same will be dealt with most expedition.

Order Date :- 1.6.2022

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