Brijesh Kumar Tiwari @ Pankaj vs State Of U.P. And Another
2023 Latest Caselaw 12820 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 

 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 41462 of 2022
 

 
Applicant :- Brijesh Kumar Tiwari @ Pankaj
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Dr. C.P. Upadhyay
 
Counsel for Opposite Party :- G.A.,Deepak Dubey
 

 
Hon'ble Umesh Chandra Sharma, J.

1. Heard Dr. C.P. Upadhyay, learned counsel for the applicant, Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material available on record.

2. At the time of hearing of argument an objection regarding maintainability of this petition, has been raised by the learned A.G.A that since the order dated 25.11.2022, by which 19-B Discharge application has been rejected, has been challenged which is a final order, hence a revision can be preferred against such order and a petition under Section 482 Cr.P.C. is not maintainable. Contrary to that learned counsel for the appellant argued that since the entire proceeding of the aforesaid case has also been challenged, hence this petition under 482 Cr.P.C is maintainable. In support of the argument learned counsel for the applicant has relied on following citations.

3. In Amit Kapoor Vs. Ramesh Chander and others Manu/SC/0746/2012, para 19 and 20, following principles have been laid down:-

"19. 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 :

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.

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.

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.

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 loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

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.

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.

7) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

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.

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.

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.

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.

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 with by the prosecution.

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.

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.

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 interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist.

{Ref. State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. [AIR 1982 SC 949]; Madhavrao Jiwaji Rao Scindia & Anr. v. Sambhajirao Chandrojirao Angre & Ors. [AIR 1988 SC 709]; Janata Dal v. H.S. Chowdhary & Ors. [AIR 1993 SC 892]; Mrs. Rupan Deol Bajaj & Anr. v. Kanwar Pal Singh Gill & Ors. [AIR 1996 SC 309; G. Sagar Suri & Anr. v. State of U.P. & Ors. [AIR 2000 SC 754]; Ajay Mitra v. State of M.P. [AIR 2003 SC 1069]; M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. [AIR 1988 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705]; Ganesh Narayan Hegde v. s. Bangarappa & Ors. [(1995) 4 SCC 41]; Zundu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque & Ors. [AIR 2005 SC 9]; M/s. Medchl Chemicals & Pharma (P) Ltd. v. M/s. Biological E. Ltd. & Ors. [AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala & Anr. [(2009) 14 SCC 466]; V.V.S. Rama Sharma & Ors. v. State of U.P. & Ors. [(2009) 7 SCC 234]; Chunduru Siva Ram Krishna & Anr. v. Peddi Ravindra Babu & Anr. [(2009) 11 SCC 203]; Sheo Nandan Paswan v. State of Bihar & Ors. [AIR 1987 SC 877]; State of Bihar & Anr. v. P.P. Sharma & Anr. [AIR 1991 SC 1260]; Lalmuni Devi (Smt.) v. State of Bihar & Ors. [(2001) 2 SCC 17]; M. Krishnan v. Vijay Singh & Anr. [(2001) 8 SCC 645]; Savita v. State of Rajasthan [(2005) 12 SCC 338]; and S.M. Datta v. State of Gujarat & Anr. [(2001) 7 SCC 659]}.

20. 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 to the requirements of the offence. At this stage, we may also notice that the principle stated by this Court in the case of Madhavrao Jiwaji Rao Scindia (supra) was reconsidered and explained in two subsequent judgments of this Court in the cases of State of Bihar & Anr. v. Shri P.P. Sharma & Anr. [AIR 1991 SC 1260] and M.N. Damani v. S.K. Sinha & Ors. [AIR 2001 SC 2037]. In the subsequent judgment, the Court held that, that judgment did not declare a law of universal application and what was the principle relating to disputes involving cases of a predominantly civil nature with or without criminal intent. "

4. In Girish Kumar Suneja Vs. C.B.I. 2017 Law Suit (SC) 685, paras 28 & 29 to 34, 38,

28. However, this does not mean that the appellants have no remedy available to them - paragraph 10 of the order does not prohibit the appellants from approaching this Court under Article 136 of the Constitution. Therefore all that has happened is that the forum for ventilating the grievance of the appellants has shifted from the High Court to this Court. It was submitted by one of the learned counsel that this is not good enough for the appellants since this Court is not obliged to give reasons while dismissing such a petition unlike the High Court which would necessarily have to give reasons if it rejected a revision petition. In our opinion, the mere fact that this Court could dismiss the petition filed by the appellants under Article 136 of the Constitution without giving reasons does not necessarily lead to the conclusion that reasons will not be given or that some equitable order will not be passed. The submission of learned counsel has no basis and is only a presumption of what this Court might do. We cannot accept a submission that has its foundation on a hypothesis.

29. This leads us to another facet of the submission made by learned counsel that even the avenue of proceeding under Section 482 of the Cr.P.C. is barred as far as the appellants are concerned. As held in Amar Nath and with which conclusion we agree, if an interlocutory order is not revisable due to the prohibition contained in Section 397(2) of the Cr.P.C. that cannot Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.) be circumvented by resort to Section 482 of the Cr.P.C. There can hardly be any serious dispute on this proposition"

34. How ridiculous a challenge can become was illustrated in Centre for Public Interest Litigation v. Union of India 14 wherein this Court cautioned against challenging the appointment of the Special Public Prosecutor or his assistant advocates! Quite obviously, these are tactics employed by the accused to delay the trial while the endeavour of Parliament is to expedite all trials to prevent harassment to the accused. This has led to odd situations in 14 (2012) 3 SCC 117 Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.)

38. The Cr.P.C. is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) of the Cr.P.C. is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 of the Cr.P.C. is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Cr.P.C. or to prevent abuse of the process of any Court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution Crl. Appeal Nos.______/2017 etc. (@ SLP (Crl.) Nos. 9503/2016 etc.) would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Cr.P.C. restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues.

5. In Vijay & others Vs. State of Maharashtra and others, Manu/SC/1633/2016, it was a case under Sections 420, 468, 506, 367 and 392 I.P.C of which para 7 and 8 are relevant, which are as under : -

7.  After hearing the counsel and also after perusing the impugned order, we are of the considered opinion that the order of the High Court has no legs to stand in view of the law laid down by this Court in Prabhu Chawla [Prabhu Chawla v. State of Rajasthan, (2016) 16 SCC 30] . In the above referred case, in view of the divergent opinions of this Court in Dhariwal Tobacco Products Ltd. [Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 : (2009) 1 SCC (Cri) 806] and Mohit v. State of U.P. [Mohit v. State of U.P., (2013) 7 SCC 789 : (2013) 3 SCC (Cri) 727] , the matter was placed before the three-Judge Bench of this Court. The three-Judge Bench took the view that Section 482 CrPC begins with a non obstante clause to state:

"482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."

As Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders! A situation which is wholly unwarranted and undesirable. The three-Judge Bench has confirmed the law laid down by this Court in Dhariwal Tobacco Products Ltd. [Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC 370 : (2009) 1 SCC (Cri) 806]

8.  In view of the above settled law, mere availability of alternative remedy cannot be a ground to disentitle the relief under Section 482 CrPC and, apart from this, we feel that the learned Judge without appreciating any of the factual and legal position, in a mechanical way, passed the impugned order, which warrants interference by this Court. Accordingly, the order of the High Court is set aside and the matter is remanded to the High Court for reconsideration in the light of the settled legal position.

6. Shila Devi Vs. State of U.P. and others Manu/UP/0649/2022, in para 11 of the judgment, the co-ordinate bench of this court has held that a petition under section 482 Cr.P.C is maintainable against the revisional order of the Sessions Court.

7. Contrary to the above citations the learned counsel for the respondent has relied on Haryana Land Reclamation and Development Corporation limited vs. State of Haryana and another 1990 SCC (Cri.) 515, in which it has been held that Magistate's order of discharge of accused on the basis of Police Report is not an interlocutory order. Hence it can be challenged by revision before the High Court.

Learned A.G.A. has relied on following citations.

8. In Sanjay Kumar Rai Vs. State of U.P, and another 2021 0 Supreme (SC) 242, in this case the criminal revision had been dismissed by the high court on the ground of lack of jurisdiction under Section 397 Cr.P.C, the Hon'ble the Apex Court held that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are not affected by bar of Section 397 (2) Cr.P.C. High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstances of individual cases. It was also opined that trial court while considering the discharge application is not to act as a mare post office. Court has to sift through evidence in order to find out whether there are sufficient grounds to try the suspect or not. The court has to consider broad probabilities, total effect of evidence and documents produced and basic infirmities appearing in case and so on. The Apex Court held that the High Court has committed jurisdictional error by not entertaining revision on merit and overlooking the fact that "Discharge" is a valuable right provided to the accused. In para 12 and 13 of the judgment, the Apex Court has referred the judgments Asian Resurfacing of Road Agency Pvt. Ltd. Vs. C.B.I, (2018) 16 SCC 299 and Madhu Limaye Vs. State of Maharashtra, (1977) 4 SCC 551, in which Hon'ble the Apex Court has held that order regarding framing charges can be challenged under Section 397 (2),Section 482 Cr.P.C or Article 227 of the Constitution of India in exceptional situation.

9. In Honnaiah T. H. Vs. State of Karnatka & Ors. 2022 Law Suite (SC) 950, in this case the Revisional power of the High Court has been discussed. In this case the question had arisen during the trial regarding the mark of exhibit, hence this ruling is not applicable on account of deference of situation.

10. From the perusal of the aforesaid judicial precedents it is very much clear that an order regarding rejection of the discharge application would be generally challenged by filing a criminal revision, but in some exceptional cases such orders may also be challenged under Section 482 Cr.P.C. So far as the quashment of entire proceedings is concerned, it can be challenged under Section 482 Cr.P.C in this case the entire proceedings has been challenged which cannot be looked into in a criminal revision. As per F.I.R, the case is based on circumstantial evidence and the applicant has been made accused and the charge-sheet had been submitted against him. The discharge application has been rejected and the charge has to be framed. The applicant has taken several grounds that his name has come into picture during the course of investigation only on the basis of confessional statement of the accused Mohd. Farooq. The dead body / Skelton was recovered after three month of the incident. It is also mismatched to the deceased Gopal. It could not be ascertained as to whether the Skelton belonged to a male of female. Neither any direct evidence nor last seen evidence nor PM report is available. Mobile number, basis of the case is not in the name of the applicant which can only be decided during the trial and its validity might be seen under Section 482 Cr.P.C to some extent.

Since the applicant has also challenged the legality of entire proceeding, of the concerned Criminal Case, hence this application is maintainable under Section 482 Cr.P.C.

O R D E R

a) This application under 482 Cr.P.C is held to be maintainable. It is made clear that this Court has not touched the merit of this case.

b) List on 08th May, 2023, for hearing on merit, before the appropriate Bench.

c) The interim stay order passed on 17.02.2023, shall continue till the next date of listing.

Order Date :- 27.04.2023.

Vinod.