Naushin Jamal vs State Of U.P. And Another
2023 Latest Caselaw 23111 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172416
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 15921 of 2022
 

 
Applicant :- Naushin Jamal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ram Chandra Maurya
 
Counsel for Opposite Party :- G.A.,Ashok Kumar Rai
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicant and learned counsel for opposite party No.2 as well as learned AGA and perused the record.

2. The present applicant has invoked the inherent power of this Court under Section 482 Cr.P.C., beseeching the quashing of impugned charge sheet dated 11.2.2022 as well as entire criminal proceeding of Case No.3118 of 2022 (State Vs. Naushin Jamal) arising out of Case Crime No.153 of 2021 under Sections 468, 469, 500, 506, 376 and 120B I.P.C., Police Station Kotwali, District Maharajganj, pending in the Court of Chief Judicial Magistrate, Maharajganj.

3. On the basis of the order passed by the court competent in application under Section 156(3) Cr.P.C. filed on behalf of the (opposite party No.2-prosecutrix) an FIR being, Case Crime No. 153 of 2021 dated 21.3.2021, has been lodged levelling allegations of outraging her modesty, defamation, forgery and criminal intimidation against six (6) accused including present applicant with an averment that opposite party No.2 has taken admission in Sonpati Mahila Mahavidyalaya, Maharajganj and started residing there for the purposes of pursuing her education. She used to go to the Angel Beauty Care where she interacted with the owner of beauty parlour. On one occasion, when she needed some help to fill up scholarship form online she has been introduced by the owner of the beauty parlour with her brother namely Nausheen Jamal (applicant herein). Later on, present applicant has taken the mobile number of the prosecutrix from online feeding when scholarship form was filled up and started harassing her. He has through out pressurized opposite party No.2 to get married with him. The owner of the beauty parlour and her husband has also threatened to the opposite party No.2 to ruin her life in case she refused to marry with the present applicant. Under duress she has changed her address and started living in village Badhara, Police Station Paniyara, Maharajganj. Thereafter, due to Covid-19 pandemic there was lock-down, in the meantime, she received a notice from the Family Court and came to know that case for restitution for conjugal rights (bidai) has been moved by the present applicant on the basis of forged marriage certificate which was procured from Madarsa. She has also received a notice dated 23.11.2022 from Allahabad High Court Bench at Lucknow qua of cheating with Nausheen Jamal (applicant herein).

4. Investigating Officer, after due investigation has submitted the charge sheet only arraigning the present applicant under Sections 376, 468, 469, 500, 506 and 120B I.P.C. Remaining five (5) accused have not been arraigned.

5. It is submitted by learned counsel for the applicant that present applicant has solemnized marriage with opposite party No.2. However, under pressure of her family members she has refused to live with the present applicant and filed a false and malicious prosecution. It is further submitted that the present applicant has filed case for restitution of conjugal rights (bidai) under Section of 281 Muhammadan Law. It is further submitted that in Crl. Writ Petition No.11307 of 2021 this Hon'ble Court has granted interim protection to the present applicant vide order dated 03.12.2021 (Annexure No.8). It is further submitted that FIR has been lodged only to harass the present applicant and blackmail him. Intention of opposite party No.2 and her family members is to exert pressure upon the present applicant so that he may come to the compromise on their terms and conditions. Learned counsel for the applicant has also tired to demonstrate from the record that sufficient money has been transferred in the account of opposite party No.2 to purchase land and jewellery. Learned counsel for applicant has drawn attention of this Court towards order dated 25.3.2022 passed by Family Court rejecting the application moved by the present applicant. Lastly, it is submitted that instant application may be allowed and the false and malicious prosecution instituted against the present applicant may be quashed. In support of his submission learned counsel for applicant has cited the case of Sonu @ Subhash Kumar Vs. State of U.P. & Anr AIR 2021 5 SC 1405 and the case of Pramod Suryabhan Pawar vs. State of Maharastra and Another (2019) 9 SCC 608.

6. Per contra, learned counsel for opposite party No.2 has vehemently opposed the submissions raised by learned counsel for the applicant and contended that, prima facie, on the face of record the complicity of the present applicant in the commission of crime cannot be ruled out. Investigating Officer has submitted charge sheet along with the damning evidence which make out, prima facie, a cognizable offence against the present applicant. It is further contended that on the basis of forged marriage certificate present applicant has filed the matrimonial case for restitution of conjugal rights which has no bearing upon the opposite party No.2. It is further contended that by way of different litigations present applicant is trying to harass and blackmail the opposite party No.2. It is next contended that no legal ground is made out to entertain the instant application in exercise of inherent jurisdiction under Section 482 Cr.P.C., therefore, instant application may be rejected being misconceived and devoid on merits.

7. Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it reveals that opposite party No.2 has unequivocally made allegations against the present applicant mentioning the chain of events wherein, she has taken admission to pursue her studies in Sonpati Mahila Mahavidyalaya, Maharajganj and started living there. During this period she came in touch with Sufia Khatoon who was the owner of Angel Beauty Care and she took the prosecutrix to her brother (applicant) for the purposes of filling up online scholarship form. At later stage, applicant has taken the phone number to the opposite party No.2 from the online form and started harassing and pressurizing her to get married with him. Sufia Khatoon and her husband namely, Sarvare Alam have supported that applicant No.1 and threatened to the prosecutrix for facing dire consequences, in case, she refused to marry with the accused. During lock-down owing to Covid-19 pandemic entire movement was halted, however, in the meantime, she has received notice from the Family Court and came to know that case of restitution of conjugal rights (bidai) has been filed by the applicant on the basis of forged marriage certificate. Taking entirety of facts as mentioned in the FIR, prima facie, it cannot be said that no case is made out for the cognizable offence. Investigating Officer, after due investigation, has submitted charge sheet along with the corroborating evidence which has rightly been taken into account by the court concerned while passing the cognizance/summoning order. During pendency of the matrimonial case before the family court present applicant has filed an application dated 15.3.2022 with the prayer that second marriage of opposite party No.2 may be stopped. Learned trial court, vide order dated 15.3.2022, has rejected the said application with an observation that marital status of the parties is still to be decided which is a subject matter of evidence, therefore, at this stage, no case is made out to entertain the application moved on behalf of the applicant No.1. Case cited by learned counsel for the applicant i.e. Sonu @ Subhash Kumar (Supra) and Pramod Suryabhan Pawar (Supra) are distinguishable in facts and circumstances of the present case. In both the aforesaid matter Hon'ble Supreme Court was satisfied that case of consensual sex has illegally been tried to be dragged into the forceful sexual assault. However, in the instant matter considering the entire case as mentioned in the FIR, it cannot be inferred that there was any consensual sex between the parties. In her statement u/s 164 Cr.P.C. prosecutrix has stated that they (applicant and his relatives) have procured objectionable video and photographs and pressurised her to get married with applicant. She was in talking terms with the applicant who had committed sexual assault on her on the pretext of said objectionable video and photographs, despite objection raised by her. In this backdrop of factual matrix, prima facie, complicity of the present applicant in the commission of crime cannot be ruled out. Defence of the present applicant as tried to put by the learned counsel for the applicant before this Court is not acceptable to be considered which is a subject matter of trial. This Court is not expected, in exercise of inherent jurisdiction under Section 482 Cr.P.C., to conduct mini trial to examine the innocence of the present applicant which can be adjudicated upon by the trial court more appropriately after apprising the evidence on record. I do not find any justifiable ground to entertain the instant application in exercise of inherent jurisdiction under Section 482 Cr.P.C. Neither there is an abuse of process of court nor any ground is made out to pass an order to secure the ends of justice.

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

9. 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.

10. 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.

11. 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."

12. 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.

13. 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.

14. 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."

15. 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.

16. 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.

17. 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 applicant has 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.

18. 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.

19. Before parting, learned counsel for the applicant submits that 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 applicant appears/surrenders 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.

21. As such, the application stands disposed of.

Order Date :- 24.8.2023

Md Faisal