Arvind Singh And 2 Others vs State Of U.P. And Another
2022 Latest Caselaw 5611 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 43
 

 
Case :- APPLICATION U/S 482 No. - 17519 of 2022
 

 
Applicant :- Arvind Singh And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pusp Raj Singh
 
Counsel for Opposite Party :- G.A.,Rajesh Kumar
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Pusp Raj Singh, learned counsel for the applicants at length and Sri A.P. Tripathi, the learned A.G.A, who appears for the State/ O.P. no.1.

2. This is an application under Section 482 of Criminal Procedure Code, 1973 (hereinafter referred to as 'CrPC') preferred by the applicants, who are 3 in number, for quashing the summoning order dated 22.04.2022 passed by learned Civil Judge (J.D.) /F.T.C., Banda, Under sections 120-B, 420, 467, 468 & 471 I.P.C., as well as entire criminal proceedings of the complaint case no. 102//2021 (Ashish Kumar Gupta Vs. Arvind Singh and others), Police Station- Kotwali Nagar, District Banda, pending Judge before learned Civil (J.D.) /F.T.C., Banda.

3. Learned counsel for the applicant has drawn the attention of this Court towards the fact that in the year 2017, the applicants themselves have lodged proceedings purported to be under Section 138 of N.I. Act against O.P. no.2 on 13.12.2017, in which on 29.1.2018 summons were sought to be issued. However, as a counterblast, now, O.P. no.2 has filed a complaint case against the applicants that too on 21.1.2019 with an allegation that the complainant had gone for some work and thereafter his wallet was missing and in the said wallet certain amount and cheque was also there, which even in fact was sought to be illegally used as the money, which was already there was distributed amount between applicants and others and so far as cheque is concerned, certain names and amount was sought to be incorporated in the cheque and same was used for offering the said money to a third person. Learned counsel for the applicant has thus argued that he has been falsely implicated in the case and the entire attempt of the complainant side just in order to rope in the applicants so as to compel the applicants to withdraw the proceeding.

4. On the other hand Sri A.P. Tripathi, learned A.G.A. has opposed the present application while arguing that the entire argument of learned counsel for the applicants centers around factual score which cannot be considered at a pre-trial stage, as whatever defence is available to the applicant, it can be very well raised and addressed during the course of trial. Learned A.G.A. has also drawn attention of this Court towards judgment of the Hon'ble Apex Court in the case of M/S Neeharika, Infrastructure Pvt. Ltd. vs. State Of Maharashtra and others reported in AIR 2021 SC 192, wherein the Hon'ble Apex Court has clearly mandated that at a pre-trial stage, this Court in exercise of jurisdiction under Section 482 CrPC embark upon the factual enquiry with regard to the merits of the allegations, as they are subject matter of trial. The proposition of law laid down by the Hon'ble Apex Court in M/S Neeharika, Infrastructure Pvt. Ltd. (Supra) is as under:-

"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;

iii) 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."

5. I have heard learned counsel for the parties and perused the records. However, this Court has found itself unable to subscribe to the arguments so sought to be raised by learned counsel for the applicant, particularly, in view of the fact that in view of the judicial mandate in the case of M/S Neeharika, Infrastructure Pvt. Ltd. (supra), this Court in exercise of the power under Section 482 CrPC cannot delve into factual issues as the same will tantamount to preempting the trial in this regard. Moreso, learned counsel for the applicant has completely failed to show any jurisdictional error committed by the court below. Accordingly the Court declines to quash the proceedings in the complaint. However, it is always open for the applicants to prefer appropriate application seeking discharge raising all the legal and factual issues.

6. Resultantly, the present application under Section 482 CrPC is consigned to record. This Court expects that the court below will consider the said application in the most expedition, as per law without being influenced by any of the observations made above.

Order Date :- 30.6.2022

N.S.Rathour