Deepak Kumar vs State Of U.P. And Another
2023 Latest Caselaw 23751 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 



 
Reserved on: 17.8.2023
 
                                                                                   Delivered on: 29.8.2023
 
Neutral Citation No. - 2023:AHC:174059
 
Court No. - 78
 

 
Case :- APPLICATION U/S 482 No. - 24280 of 2023
 

 
Applicant :- Deepak Kumar
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Rajan Upadhyay
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard Shri Ramesh Upadhyay, learned Senior Advocate, assisted by Shri Rajan Upadhyay, learned counsel for the applicant-accused and learned A.G.A. for the State.

2. The present application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings, including cognizance order dated 29.08.2018 and charge-sheet dated 18.08.2018, of Criminal Case No. 1280 of 2018, arising out of Case Crime No. 307 of 2009, under Sections 420, 467, 468, 471, 120-B I.P.C. read with Section 13(1)(c), 13(1)(d) and 13(2) of Prevention of Corruption Act, Police Station-Feelkhana, District-Kanpur Nagar, pending in the Court of learned Special Judge (Anti Corruption Act), Lucknow.

3. Learned Senior counsel submitted that the first information report of this case been lodged making false and baseless allegations and that no prima facie case is made out against the applicant-accused. The sanction for prosecution of applicant-accused has been granted by Superintending Engineer, who was not the competent authority to grant sanction for prosecution of the applicant-accused and thus, sanction for prosecution of applicant is against the law. It was pointed out that in the first information report of impugned case, several other employees were also named and in respect of some of the co-accused persons, the Division Bench of this Court (Lucknow Bench) has granted interim relief vide order dated 19.12.2018 and the case of applicant-accused is also on similar footing. Learned Senior counsel has referred facts of the matter and submitted that no prima facie case is made out against the applicant-accused.

4. It is further submitted that earlier the applicant-accused has filed an application under Section 482 Cr.P.C. No. 8228 of 2018 before the Lucknow Bench of this Court, which was disposed of vide order dated 19.12.2018. It is further submitted that in view of law laid down in case of Anil Khadkiwala Vs. State (Government of NCT of Delhi) and Arn. (Criminal Appeal No. 1157 of 2019) decided by the Hon'ble Apex Court on 30.07.2019, this second Application under Section 482 Cr.P.C. would be maintainable.

5. Learned A.G.A. has opposed the application and submitted that the instant application under Section 482 Cr.P.C. is not maintainable. Earlier, the applicant-accused has filed an application under Section 482 Cr.P.C. seeking same relief, which has already been disposed of by the Co-ordinate Bench of this Court (Lucknow Bench) vide order dated 19.12.2018, wherein the prayer of quashing of proceedings was refused and the applicant-accused was directed to surrender before the trial court within a period of 30 days but in spite of surrendering before the trial court, after 5 years, the applicant-accused has again filed this application under Section 482 Cr.P.C. which is nothing but abuse of process of Court. Referring to facts of the matter, it was also submitted that a prima facie case is made out against the applicant-accused.

6. I have considered the rival submissions and perused the record.

7. At the outset, it may be mentioned that earlier the applicant has filed an application under Section 482 Cr.P.C. (No. 8228 of 2018) with prayer for quashing of charge-sheet of the impugned case which was disposed of on 19.12.2018 by following order:

"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The present application under Section 482 Cr.P.C. has been filed for quashing the chargesheet dated 21.11.2018 submitted in criminal case no. 1280 of 2018 (State Vs. Subhash Agrawal and others) under Sections 420/467/471/120B IPC read with Section 13 (1)(c), 13 (1)(d) and 13 (2) of P.C. Act, P.S. Feel Khana, District Kanpur Nagar pending before the Special Judge (P.C. Act), Lucknow with a further prayer to stay the proceedings of the aforesaid case.

The contention of learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention. At last he submitted that the applicant is ready to appear before the court and to face the trial. He sought some time to surrender before the court below.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.

Considering the facts and circumstances of the case, I do not find any ground to quash the entire proceeding of the court below of the aforementioned case, therefore, the prayer for quashing the same is hereby refused.

However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

With the aforesaid directions, this application is finally disposed of."

8. Thus, it is apparent that the prayer of applicant for quashing of proceedings and charge-sheet of the impugned case has already been refused. After about five years of the said order, the applicant-accused has again approached this Court seeking same relief. In case of Anil Khadkiwala Vs. State (Government of NCT of Delhi) and Arn. (supra), in para Nos. 7 and 11, Hon'ble Apex Court observed as under:

"7. The complaint filed by respondent no.2 alleges issuance of the cheques by the appellant as Director on 15.02.2001 and 28.02.2001. The appellant in his reply dated 31.08.2001, to the statutory notice, had denied answerability in view of his resignation on 20.01.2001. This fact does not find mention in the complaint. There is no allegation in the complaint that the cheques were post-dated. Even otherwise, the appellant had taken a specific objection in his earlier application under Section 482, Cr.P.C. that he had resigned from the Company on 20.01.2001 and which had been accepted. From the tenor of the order of the High Court on the earlier occasion it does not appear that Form 32 issued by the Registrar of Companies was brought on record in support of the resignation. The High Court dismissed the quashing application without considering the contention of the appellant that he had resigned from the post of the Director of the Company prior to the issuance of the cheques and the effect thereof in the facts and circumstances of the case. The High Court in the fresh application under Section 482, Cr.P.C. initially was therefore satisfied to issue notice in the matter after noticing the Form 32 certificate. Naturally there was a difference between the earlier application and the subsequent one, inasmuch as the statutory Form 32 did not fall for consideration by the Court earlier. The factum of resignation is not in dispute between the parties. The subsequent application, strictly speaking, therefore cannot be said to a repeat application squarely on the same facts and circumstances.

11. The Company, of which the appellant was a Director, is a party respondent in the complaint. The interests of the complainant are therefore adequately protected. In the entirety of the facts and circumstances of the case, we are unable to hold that the second application for quashing of the complaint was not maintainable merely because of the dismissal of the earlier application."

9. In view of above stated pronouncement of Hon'ble Apex Court, it appears that a subsequent application under Section 482 Cr.P.C., under changed circumstances or on the basis of some new grounds, may be maintainable.

10. Coming to facts of the matter, it may be stated that the first application of applicant under Section 482 Cr.P.C. was disposed of by Lucknow Bench of this Court vide above referred order dated 19.12.2018 and that applicant-accused has not complied with the direction made in that order. After 5 years, he has again approached this Court seeking same relief through this application. It has been argued that some of the co-accused persons have been granted interim relief. Here, it would be relevant to observe that though no specific period of limitation has been prescribed for filing of application under Section 482 Cr.P.C. but nevertheless, such an application has to be filed within a reasonable period. The proceedings of the impugned case are pending since 2018. In view of the facts of the matter, it appears that applicant-accused wants to evade the process of Trial Court by one way or other. The allegation against the applicant-accused is that he has obtained appointment on the post of 'Tarbabu' in Irrigation Department on the basis of forged documents and it appears that even the verification report of the documents was found forged. The contention that Superintendent Engineer, who granted sanction for prosecution of applicant-accused, was not competent, can be examined by the Trial Court during trial. At this stage, there is no such satisfactory material to show that the Superintendent Engineer was not competent to accord the sanction for prosecution of applicant-accused. Another contention that some of the co-accused persons have been granted interim relief, also cannot be a basis to quash the impugned charge-sheet/proceedings.

11. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.

12. In the case of R. Kalyani v. Janak C. Mehta and Others reported in 2009 (1) SCC 516, the Hon'ble Apex Court has held as under:

"(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."

13. In the instant matter, in view of allegations made in the first information report and material collected during investigation, it cannot be said that no prima facie case is disclosed against the applicant-accused.

14. As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of FIR or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In case of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Section 482 Cr.P.C. In the instant case, in view of material on record, it cannot be said that no prima facie case is made out against the applicant.

15. In view of aforesaid, it is apparent that the instant application under Section 482 Cr.P.C. lacks merit, and thus, liable to be dismissed. However, the applicant would be at liberty to move an application for discharge at appropriate stage in accordance with law.

16. With aforesaid observations, the application under Section 482 Cr.P.C., is dismissed.

Order Date :- 29.8.2023

Suraj