Rajeev Kumar Agarwal And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 1535 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 69
 
Case :- APPLICATION U/S 482 No. - 1495 of 2023
 
Applicant :- Rajeev Kumar Agarwal And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ajay Kumar Pandey,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Shri Satish Trivedi, learned Senior Advocate assisted by Sri Ajay Kumar Pandey, learned counsel for the applicants, Shri Raj Kumar Gupta, learned counsel for the State and perused the material brought on record.

3. The present application under Section 482 Cr.P.C. has been filed by the applicants Rajeev Kumar Agarwal, Atul Kumar Bansal and Yogesh Kumar Gupta with the prayer to quash the summoning order dated 2.9.2022 passed by Addl. Chief Judicial Magistrate, Court No.4, Agra in Criminal Case no.11404 of 2022 (State of U.P. Vs. Shri Bhagwan Agrawal and others), charge sheet dated 8.12.2021 arising out of Case Crime No.29 of 2021, u/s 448 IPC, P.S. Mantola, District Agra as well as entire proceedings of Criminal Case No.11404 of 2022 pending in the Court of A.C.J.M., Court No.4, Agra and further with the prayer to stay the further proceeding of aforesaid case during the pendency of the present application before this Hon'ble Court.

4. The facts of the case in brief are that a FIR was lodged on 8.6.2021 by Harihar Puri against Bhagwan Agarwal, Rajiv Kumar Agarwal, Atul Bansal, Yogesh Kumar under Sections 406, 420, 467, 468, 471, 323, 504, 506 IPC with the allegations that he is the administrator of Mankameshwar Math Mandir, Agra. The keys of the rooms situated in the courtyard of the temple were given to Sri Bhagwan Agarwal and his associates for Ramleela purposes through Circle Officer, Chata, Agra. The said persons have in conspiracy kept the said keys with them and are not returning it. A complaint was made to the Senior Superintendent of Police and I.G, Police, Agra but the complaint has not been decided yet. The accused persons and other Bhoo-Mafia's in a planned manner have made a forged map and have produced the same before the administrative officers and are misleading them. Previously an application was given to the Commissioner, Agra and when the inquiry was being done by Sunil Tomar (Sub-Inspector, P.S. Mantola), a letter was called for from the Cantt. Board and then it came to be known that no such map is present in the records. Since there is no map in the records, it is clear that the same has been prepared by the Bhoo-Mafia's just in order to take forceful possession of the property of temple. On the basis of the said forged map, the accused persons on 13.1.2021 had a scuffle with the first informant and had also abused him and also threatened him for which he had made a complaint to the police officials. The FIR has thus been lodged. The matter was taken up in investigation and charge sheet was submitted against Bhagwal Agarwal, Rajiv Kumar Agarwal, Atul Bansal and Yogesh Kumar under Section 448 IPC. Vide order dated 2.9.2022, the trial court summoned the said accused persons. The petition has thus been filed with the aforesaid prayer by three of the accused out of four persons charge sheeted.

5. Learned counsel for the applicants argued while placing annexure no.9 to the affidavit that the opposite party no.2 had filed a Writ-C No.46214 of 2014 (Harihar Puri and another Vs. State of U.P. and others) which was dismissed by Division Bench of this Court with liberty to the petitioners to approach such other alternative forum available to them in law for redressal of their grievances. It is further argued while placing annexure no.10 to the affidavit that the applicant no.1 has filed a civil suit against the first informant and two other persons dated 7.7.2021 before the Civil Court for permanent injunction which is pending disposal, copy of the plaint has been placed before the Court. While placing para 33 and 34 of the affidavit, it is argued that no notice of trespass has been given under Section 441 IPC under the Uttar Pradesh Amendment of it and since there is no notice given, the present proceedings are totally illegal and are liable to be quashed. As such the proceedings deserves to be quashed and the petition deserves to be allowed.

6. Per contra, learned counsel for the State opposed the prayer for quashing and argued that the applicants are named in the FIR and there are allegations against them. Even during investigation, the implication of the applicants has surfaced. The charge sheet has been submitted on which the applicants and another accused have been summoned by the trial court. It is argued that in so far as the suit is concerned, the same does not bar filing of criminal proceedings. It is argued that the order summoning the applicants and co-accused is a speaking order passed on merits and deserves no interference.

7. After hearing learned counsel for the parties and perusing the records, it is evident that the applicants are named in the FIR and there are allegations against them. The investigation has concluded and charge sheet has been submitted against the applicants and one other accused person and they have been summoned by the trial court by speaking order passed on merits. In so far as writ petition is concerned, although the same was filed by the first informant and other persons but the same was dismissed on the ground of there being alternative forum available to them for redressal of their grievances, and as such there was no adjudication on merits. A civil suit as is stated to have been filed, was filed after lodging of FIR as from the records it shows that the same was filed on 7.7.2021 whereas the FIR was lodged on 8.6.2021. The same thus appears to have been filed just in order to show that the matter also relates to some civil dispute between the parties but the same was after lodging of the FIR. In so far as Section 441 IPC is concerned, the said Section defines "criminal trespass" which has an Uttar Pradesh Amendment being Uttar Pradesh Act, 31 of 1961 which was w.e.f 13.11.1961. The "punishment for criminal trespass" is provided in Section 447 IPC. The Charge Sheet in the present matter has been submitted under Section 448 IPC which is a "punishment for house trespass". The "house trespass" is defined in Section 442 IPC which has no such amendment as Section 441 IPC. Thus there is no ground available with regards to arguments as raised of no notice being served under Section 441 IPC.

8. The Apex Court in the case of State of M.P. v. Awadh Kishore Gupta : (2004) 1 SCC 691 has in paragraphs 8 to 13 has held that High Court cannot appreciate evidence but can evaluate material and documents on records to the extent of its prima facie satisfaction about existence of sufficient ground for proceeding against the accused, it is not proper for High Court to act upon documents annexed to the petition under Section 482 Cr.P.C. and the annexures to the petition cannot be termed as evidence without being tested and proved. The same read as under :

"8. Exercise of power under Section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

                                                                                      (AIR para 6)

10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102)

"(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 bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides 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 to private and personal grudge."

11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304], State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : AIR 1999 SC 1216].]

                                                                                       (emphasis supplied)

12. These aspects were also highlighted in State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539] .

13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal [(1992) 3 SCC 317 : 1992 SCC (Cri) 636] it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116 of 1994) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further.

(emphasis supplied)"

9. In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147, Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44, Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424 it has been held by the Apex Court that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case.

10. In the cases of Bhushan Kumar Vs. State of NCT of Delhi : (2012) 2 SCC 424, Nupur Talwar Vs. CBI : (2012) 11 SCC 465, Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons.

11. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of State of Haryana and Others Vs. Bhajan Lal and Others : (1992) Suppl (1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. It has further been held that existence of a civil remedy and initiation of it will not in any manner be an abuse of process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings.

12. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while excercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.

13. Looking to the facts of the case, the prima facie allegation against the applicant and the law as stated above, no case for interference is made out. The present application under Section 482 Cr.P.C. is thus dismissed.

                                                                                    (Samit Gopal, J.)

Order Date :-16.1.2023

Gaurav