Shubham And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 18640 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:146585
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 4273 of 2023
 

 
Applicant :- Shubham And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amit Pathak
 
Counsel for Opposite Party :- G.A.,Jagdish Prasad Mishra
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants and learned A.G.A. as well as learned counsel for the opposite party no. 2 and perused the record on board.

2. The present applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the charge sheet dated 16.03.2019 as well as cognizance order dated 03.04.2019 and entire proceeding of S.T. No. 472 of 2019 (State of U.P. Vs. Shubham and Others), arising out of Case Crime No. 0353 of 2018, under Sections 366, 376, 420, 120B, 323 I.P.C., Police Station Janakpuri, District Saharanpur, pending in the Court of learned Additional Session Judge, F.T.C., Saharanpur on the basis of compromise dated 22.03.2022.

3. At the initial stage matter was remitted before the trial court for verification of the compromise on the statement made on behalf of the counsel for the applicants and learned counsel for the opposite party no. 2. For ready reference, order dated 02.03.2023 passed by this Court is being quoted herein below:-

"Heard learned counsel for the applicants, Mr. Jagdish Prasad Mishra, learned counsel for opposite party no.2 and the learned A.G.A. for the State.

This application under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 16.03.2019 as well as cognizance order dated 03.04.2019 and entire proceeding of S.T. No. 472 of 2019 (State of U.P. Vs. Shubham and Others), arising out of Case Crime No. 0353 of 2018, under Sections 366, 376, 420, 120B, 323 I.P.C., Police Station Janakpuri, District Saharanpur, pending in the Court of learned Additional Session Judge, F.T.C., Saharanpur on the basis of compromise so entered into between the parties.

It is submitted on behalf of the applicants that both the parties are known to each other very well and the dispute between them is matrimonial in nature. He further submits that on account of intervention of well-wishers of the applicants and opposite party no.2, they have settled their disputes and arrived at a compromise. On the basis of said compromise, an affidavit has been filed by opposite party no.2 before the court below that she does not want to press the criminal proceedings initiated by her against the applicants. It is, thus, contended that proceedings of the aforesaid case be quashed in the light of law laid down by the Apex Court in the case of Gian Singh v. State of Punjab : (2012) 10 SCC 303.

Learned counsel for opposite party no.2 also does not dispute the correctness of the submissions made by the learned counsel for the applicants.

Whether a compromise has taken place or not can at best be ascertained by the court, where the proceedings are pending, after ensuring the presence of the parties before it.

Put up this case on 26.04.2023 as fresh before the appropriate Bench.

Learned counsel for the parties undertake that they shall make a fresh compromise application before the court below within three weeks from today for verification of the aforesaid compromise. They further undertake to ensure their presence before the court below or any other transferee court, as the case may be, on 12.04.2023 and the court concerned, thereafter, shall ascertain the veracity of the compromise. If the said compromise is verified, the same shall be made part of the record and report to that effect, will be prepared and the parties would be allowed to obtain certified copy thereof and file the same before this Court.

Office is directed to send through FAX a copy of this order within 24 hours.

Parties are also directed to produce certified copy of this order along with a fresh compromise application before the court concerned within a week from today.

Till the next date of listing, no coercive steps would be taken against the applicants in the aforesaid case crime."

4. On last occasion i.e. on 30.05.2023 this Court has declined the factum of compromise took place between the parties and directed the counsel for the parties to argue the matter on merits. This Court has left open for the trial court concerned to proceed with the matter in accordance with law. For ready reference, order dated 30.05.2023 passed by this Court is being quoted herein below:-

"In compliance of the order dated 24.05.2023, the applicant no.1, namely, Shubham as well as opposite party no.2-Tanvi Kansal are present before this Court, who have been identified and their signatures have also been attested by their counsel.

On a query raised by the Court to the girl as to why she has entered into compromise with such a person, who has exploited her, she has stated that she is running to the court since last 6-7 years and being fed up she has no option but to enter into compromise.

This Court feels that the aforesaid statement goes to show that the victim has entered into compromise under pressure as the matter was being delayed and she was not in a position to face the society wasting six years of her precious life in running to the Court. Thus, the aforesaid compromise cannot be said to be out of free will.

At this stage, learned counsel for the applicants requests to adjourn the matter for today so that he may argue the matter on merits.

The matter has been heard at length and in order to avoid the present Court, the adjournment is being sought.

Put up this case on 06.07.2023 as fresh for further hearing.

The fact that this case has been heard at length by this Court, shall be pointed out to the Court wherever this matter is listed, by Mr. J.P. Misra, learned counsel for the opposite party no.2.

As no interim order has been granted in favour of the applicants, it is open to the Court concerned to proceed in accordance with law.

Registrar (Compliance) shall inform about this order to the Court below for necessary information and compliance forthwith."

5. Having considered the order dated 30.05.2023 passed by this Court, the matter is being heard on merits.

6. Learned counsel for the applicants submits that on the date of the alleged incident i.e. on 25.06.2016, wherein allegation has been made against the present applicant to enticed away the prosecutrix to compel her for marriage and enforced her for making physical relation, both the parties were already married, therefore, no case could be made out under Section 376 I.P.C. It is further submitted that both the parties have taken divorce from the court, vide order dated 01.10.2022 (Annexure No. 4), under Section 13-B of the Hindu Marriage Act. It is further submitted that proceeding under Section 12 of the Domestic Violence Act has already been dropped considering the application moved on behalf of the opposite party no. 2 that she does not want to prosecute the matter. It is next submitted that in light of the fact that marriage was solemnized and divorce took place between them, instant criminal proceeding is not sustainable in the eye of law.

7. Per contra, learned A.G.A. has vehemently opposed the submissions as advanced by the learned counsel for the applicants and contended that veracity of the marriage took place between the parties is still to be decided by the court concerned. It is further submitted that the opposite party no. 2 herself has appeared before the court and stated that she has fed up with running to the court, therefore, entered into compromise. The statement of opposite party no. 2 has already been considered by this Court vide order dated 30.05.2023. It is further contended that innocence of the present applicants cannot be inferred at this stage inasmuch as evidences are still to come and the present applicants have full opportunity to defend their case before the trial court. It is next contended that, at this juncture, no legal ground is made out to entertain the instant application in exercise of inherent jurisdiction under Section 482 Cr.P.C. to quash the entire criminal proceeding as arisen out of Case Crime No. 0353 of 2018.

8. Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that in the F.I.R. opposite party no. 2 has specifically expressed the entire incident of enticing her by the present applicants and making forceful physical relation with her. In light of the statement made by opposite party no. 2 before this Court, which has been acknowledged in the order dated 30.05.2023, this Court has no option but to get the matter decided on merits. Disputed question of fact with respect to solemnization of marriage, as submitted by the counsel for the applicants, and the consequential facts thereof can more appropriately be decided by the trial court after considering the evidence adduced by the concerned parties. At this juncture, disputed questions of fact, which requires corroborative evidence, cannot be examined. On the face of record, prima facie, complicity of the present applicants in the commission of crime, as mentioned in the first information report, cannot be ruled out. The applicants have full opportunity to defend their case before the trial court and adduce evidence with respect to solemnization of marriage, as stated by the counsel for the applicants before this Court.

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.

24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debuted before this Court and various High Courts. Though in a MR series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.

25. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this 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."

26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.

27. It has been further elucidated recently by this 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.

28. It is thus settled 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."

14. 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.

15. 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.

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

17. Accordingly, present application is dismissed with no order as to costs.

Order Date :- 24.7.2023

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