Kailash And 8 Others vs State Of U.P. And Another
2023 Latest Caselaw 22663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:169337
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 22615 of 2023
 

 
Applicant :- Kailash And 8 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ajay Kumar Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants, learned AGA and perused the record.

2. The present applicants have invoked the inherent jurisdiction of this Court under Section 482 CrPC beseeching the quashing of cognizance/summoning order dated 7.12.2022 in Complaint Case No. 19388 of 2021 (Sunil Kumar Vs. Kailash & Ors.) under Sections 452, 323 and 506 IPC, Police Station Jasrana, District Firozabad pending before the Additional Chief Judicial Magistrate, Shikohabad, District- Firozabad.

3. The facts culled out from the instant application are that opposite party no.2 has filed a complaint dated 6.7.2021 qua incident dated 29.6.2021 at 10:30 p.m. with an averments that all the accused persons with common intention barged into the house of the complainant and badly thrashed him and his family members. Considering the contents of the complaint coupled with the statements under Section 200 Cr.P.C. and 202 Cr.P.C., learned Additional Chief Judicial Magistrate has issued summons against the present applicants under Section 452, 323 and 506 IPC, vide order impugned dated 17.12.2022, which is under challenged before this Court.

4. It is submitted by learned counsel for the applicant that the respondent no.2 has filed complaint in counter blast to the earlier written report moved by the applicant no.5 showing the incident dated 4.7.2021. It is further submitted that no injury has been caused in the incident in question to the respondent no.2 and his family members. False and concocted story has been portrayed by respondent no.2 just to harass the present applicants and exert pressure upon them so that they may come to the compromise on the terms of the respondent no.2. It is further submitted that, in fact, in the incident dated 4.7.2021, the present applicants have been badly thrashed by the respondent no.2 and his family members wherein they have sustained serious injuries. With respect to the incident dated 4.7.2021 FIR, being Case Crime No. 0332 of 2021 dated 1.8.2021, has been lodged by Ramakant (applicant no.5). It is further submitted that the false and malicious prosecution has been made by the respondent no.2 by moving a complaint. It is next submitted that learned Additional Chief Judicial Magistrate has illegally issued the process without properly appreciating the evidence on record and without recording its satisfaction with respect to the occurrence of cognizable offence and the complicity of the present applicants in the aforesaid crime. It is next submitted that order impugned is liable to be rejected being illegal and unwarranted under the law.

5. Per contra, learned AGA has opposed the submissions as raised by learned counsel for the applicants and contended that, prima facie, on the face of the record, the complicity of the present applicants in commission of crime cannot be ruled out. It is further contended that learned Additional Chief Judicial Magistrate has passed the order after thoroughly considering the contents of the complaint in light of the statement made by the complainant and his witness recorded under Section 200 and 202 Cr.P.C. It is further contended that innocence of the present applicants cannot be inferred at this stage which can be adjudicated upon by the trial court more appropriately after appreciating the evidence on record, therefore, instant application may be rejected being misconceived and devoid of merits.

6. Having considered the rivals submissions as advanced by learned counsel for the parties and perusal of the record, it reveals that learned Additional Chief Judicial Magistrate has issued the process, vide order impugned dated 7.12.2022, after throughly considering the contents of the complaint and the statement of the complainant under Sections 200 Cr.P.C. and the statement of witnesses namely Shashi Prabha (P.W.-1) and Phoolmala (P.W.-2) under Section 202 Cr.P.C. Learned Magistrate has recorded its satisfaction with respect to the involvement of the present applicants, prima facie, in commission of cognizable offence as narrated in the complaint. So far as the written report moved on behalf of applicant no.5 is concerned, perusal of the record reveals that at the bottom of the written report 4.7.2021 has been mentioned as a date, however, in the FIR dated 1.8.2021, the date of written report has been shown to be dated 1.8.2021. The written report (Annexure No.1) is a typed copy, however, original copy has not been filed. At this juncture, authenticity of the said written report cannot be ascertained which is a matter of scrutiny. On the other hand respondent no.2 has filed complaint dated 6.7.2021 qua incident dated 29.6.2021. Learned Magistrate is competent enough to examine the veracity of the facts as stated by the present applicants. At this juncture, this Court is not expected to commit the mini trial to examine the correctness of the case as averred in the complaint. Learned Magistrate after considering the material on record has, prima facie, satisfied with respect of the occurrence of the cognizable offence, therefore, at this juncture, the defence of the accused is not expected to be examined.

7. Record reveals that learned counsel for the applicant has raised disputed question of fact qua involvement of present applicant in the incident in question.

8. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

9. It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

10. In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :-

"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

11. In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

12. In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows:

"23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

13. The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bur engrafted in any of the provisions of the Code on the concerned Act (under which a criminal proceeding is instituted to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due 10 private and personal grudge."

14. It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

15. Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted.

16. Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

17. Having considered the rival submissions advance by learned counsel for the applicant and learned AGA and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused.

18. Accordingly, the present application under Section 482 CrPC is hereby dismissed.

19. Before parting, learned counsel for the applicants submits that in all sections, as mentioned in the FIR, maximum punishment is seven years or less than 7 years, therefore, the bail application if filed by the present applicant may be considered in the light of the dictum of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 Supreme Court Cases 773. In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences.

20. Considering the entire facts and circumstances of the case and the dictum of Hon'ble Supreme Court, I think it appropriate that in case, the present applicants appear/surrender before the concerned court below and move bail application within two weeks, the same shall be considered and decided in accordance with law, considering the judgment of Hon'ble Supreme Court, expeditiously as early as possible.

Order Date :- 22.8.2023

Akbar