Allahabad High Court
Ankit Kumar Mishra vs State Of U.P. Thru. Prin. Secy. ... on 27 May, 2022
Bench: Anil Kumar Ojha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- APPLICATION U/S 482 No. - 3193 of 2022
Applicant :- Ankit Kumar Mishra
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Mahendra Kumar Shukla
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 and perused the record.
This application under Section 482 Cr.P.C. has been filed with a prayer to set-aside the charge-sheet bearing No.A-297 of 5.12.2020 in pursuance of Special Trial No. 224 of 2021 in case crime no. 108/ 2019 (State of U.P. vs. Ankit Kumar Mishra) registered under Sections 323, 354 (kha), 504 IPC and 7/8 of POCSO Act, Police Station- Antu, District- Pratapgarh with a further prayer to stay further proceeding in the aforesaid case.
Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case; he is an innocent person. Victim is major. Offences alleged are not made out against the applicant. Applicant has been implicated in the present case owing to village factionalism. F.I.R. has been lodged on account of enmity to harass the applicant. No case is made out against the applicant under Sections 323, 354 (kha), 504 IPC and 7/8 of POCSO Act, hence this petition.
Learned counsel for the applicant has relied upon a judgment of Punjab and Haryana High Court dated 20.02.2019 passed in CRR No. 767 of 2018 (Gajab Singh vs. State of Haryana).
Per contra, learned A.G.A. vehemently opposed the prayer of quashing and submitted that disputed questions of fact have been raised by learned counsel for the applicant which are beyond the scope of proceeding under Section 482 Cr.P.C.
In M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharastra and others, 2020 SCC Online SC 850, the Hon'ble Apex Court has held as under:
"iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare case (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."
Following other authorities can be cited on the aforesaid point: R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604.
The Hon'ble Apex Court has held that this Court cannot embark upon the enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R./complaint and statement of witnesses.
Perusal of the record reveals that the F.I.R. was registered against the applicants, statement of witnesses were recorded during investigation, after collection of evidence and conclusion of investigation, the I.O. submitted the charge sheet and the learned Magistrate took cognizance in the matter thereafter.Whether victim if major or minor is a question of fact and can be determined by the trial court only. Perusal of the record reveals that victim in her statement under Sections 161 and 164 Cr.P.C. has specifically implicated the applicant. In the proceeding under Section 482 Cr.P.C. the appreciation of evidence is not permissible. Factual controversy cannot be settled in these proceedings. Whether the statement of victim recorded under Sections 161 and 164 Cr.P.C. is reliable or unworthy of credence, cannot be decided at this stage.
In view of the above, the prayer for quashing the proceedings is refused.
Learned counsel for applicants requested that order may be passed for expeditious disposal of bail application in view of law laid down by Hon'ble Apex Court in Satender Kumar Antil v. Central Bureau of Investigation and another, (2021) 10 SCC 773.
In view of the above, it is provided that if the applicants apply for bail before the court below, their prayer for bail be considered and decided in view of the law laid down in Satender Kumar Antil (Supra) and Brahm Singh and others v. State of U.P. and others 2016 (95) ACC 950.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 27.5.2022/Aditya
