Vinay Kumar vs State Of U.P. And Another
2022 Latest Caselaw 4836 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- APPLICATION U/S 482 No. - 13286 of 2022
 

 
Applicant :- Vinay Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Mithilesh Kumar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

Heard Sri Mithilesh Kumar Tiwari, learned counsel for the applicant 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 applicant arising out of Criminal Case No. 161 of 2020, State Vs. Vinay Kumar, relating to case crime no. 411 of 2018, u/s 419 420 IPC, P.S. Khaga, District Fatehpur, pending in the court of learned Chief Judicial Magistrate, District Fatehpur as well as quash the charge sheet dated 30.7.2019 submitted by the Investigating Officer and cognizance order dated 28.2.2020.

Learned counsel for the applicant has argued that a first information report was lodged by the opposite party no.2 before the P.S. Khaga, District Fatehpur being FIR No.0411 dated 26.12.2018 with an allegation that the applicant is stated to be posted as the Purchase Incharge of the relevant Purchase Center and on 26.12.2016 when an inspection was sought to be conducted then it transpired that despite the fact that the concerned Purchase Center was not open and its opening was yet to be on a future date but purchase of Rs.9400/- were sought to be alleged.

Learned counsel for the applicant on the basis of the statement so made under Section 161 read with Section 164 Cr.P.C. has sought to argued that no cognizable offence is made out and otherwise no ingredients so as to attract the provisions contained under Sections 419/420 stands attracted. He has further argued that the entire FIR contains vague allegations which have got no nexus with reality.

Sri Munne lal learned AGA on the other hand has argued that the entire stand so sought to be taken by the applicant cannot be gone into the present proceedings particularly in Section 482 of the Code of Criminal Procedure in view of the fact that this Court at this stage cannot conduct any roving inquiry on the factual score as the stage itself a pre-trial stage and factual issues cannot be gone into. Might be the stand so taken by the applicant may be correct but it is a defence which is to be seen when the trial starts.

I have heard learned counsel for the parties and gone through the records and I find myself unable to subscribe to the contention so sought to be raised by the applicant particularly in view of the fact that under Section 482 Cr.P.C. cannot conduct inquiry at pre-trial stage that too on factual issues as mandated by the Hon'ble Apex Court and 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.

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 applicant, 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

piyush