Siraj vs State Of U.P. And Another
2023 Latest Caselaw 28468 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:198287
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 22143 of 2023
 

 
Applicant :- Siraj
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Brij Raj Singh
 
Counsel for Opposite Party :- G.A.,Anil Kumar
 

 
Hon'ble Dinesh Pathak,J.

1. Heard Sri Brij Raj Singh, learned counsel for the applicant, Sri Anil Kumar, learned counsel for the opposite party No.2 as well as learned A.G.A. for the State.

2. The present applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the charge sheet dated 31.03.2023 and cognizance order dated 25.04.2023 passed by learned Special Judge SC/ST Act Kasganj in Session Case No.347 of 2023 (State Vs. Siraj), arising out of Case Crime No.76 of 2023, under Sections 323, 504, 506, 354B IPC and Section 3(2)5A of Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act (in brevity SC/ST Act) Police Station Patiyali, District Kasganj, pending in the court of learned Special Judge SC/ST Act, Kasganj.

3. Opposite party No.2 has lodged an FIR against the present applicant levelling allegation of use of criminal force intending to disrobe, pounding and criminal intimidation with an averment that on the date of occurrence dated 14.02.2023 at about 8:00 PM while the first informant was going for excretion to Ganjdundwara Road, she had been intercepted by the accused (applicant herein) near mango tree, who was already present there in a white car. He held the hand of the first informant intending to drag her into car. In the process of resistance her cloths were torn and body was scratched resulting in oozing of blood. Having heard her screaming, ladies coming behind her for excretion have soughted asking the identity of accused. Having seen himself surrounded accused has pushed her and while fleeing away he threatened her of life, in case, she told any one about the incident.

4. Learned counsel for the applicant submits that the incident has allegedly been shown to take place on 14.02.2023 whereas an FIR has been lodged at a belated stage on 07.03.2023. He has drawn attention of the Court towards the application dated 14.02.2023, which was moved by the first informant on the same date to the SHO of the concerned police station and submits that in said complaint the name of the present applicant was not mentioned. It is further submitted that the applicant is residence of the same area where first information resides and has purchased the shop over there, therefore, it cannot be said that he is not known to the first informant and his family members. It is further submitted that from the later part of the FIR, it is evident that she knew the present applicant. Nothing has been found in the medical report to corroborate the incident in question wherein first informant has got injured. False and malicious prosecution has been instituted against the present applicant for the reason known to the first informant best. It is further submitted that the present applicant is native of the same place, therefore, in case he involved in the incident in question his name would have been mentioned by the first informant in his first application dated 14.02.2023 moved to the SHO. Absence of present applicant's name in application dated 14.02.2023 shows that he has been inculpated afterthought in the FIR. It is further submitted that all the witnesses which were examined by the Investigating Officer are the family members/relatives of the first informant, however, no independent witness has been examined to corroborate the occurrence of crime as mentioned in the FIR. Learned counsel for the applicant has also tried to question the genuineness of the statement made by the witnesses and the first informant on the ground that it has been taken at a very belated stage after the alleged incident dated 14.02.2023.

5. Per contra, learned A.G.A. as well as learned counsel for the opposite party No.2 has vehemently opposed the submissions as raised by learned counsel for the applicant and supported the charge sheet as well as cognizance/summoning order dated 25.04.2023.

6. Having considered the rival submissions as advanced by learned counsel for the parties and perusal of the record, it is manifested that the first informant has unequivocally narrated an occurrence of offence allegedly took place on 14.02.2023 in which she has allegedly been assaulted by the present applicant intending to disrobe her while she was going to excretes at about 8:00 PM. In her statements under Sections 161 and 164 Cr.P.C., prosecutrix has categorically stated the incident in question which clearly corroborates the assertion of fact as articulated in the FIR. Investigating Officer, after due investigation, has submitted the charge sheet wherein he has shown the name of the several persons as a witness of the incident who were allegedly present at the time of occurrence. Learned court subordinate while taking the cognizance and issuing summon, vide order dated 25.04.2023, has mentioned the name of all the witnesses who have made statement during investigation and their statement are accompanied with the charge sheet, which are part of case diary.

7. Learned counsel for the applicant has tried to question the veracity of the statements made by the witnesses on the ground that they are close relatives/ family members of the first informant. In my opinion same are matter of trial and can be adjudicated upon by the trial court.

8. So far as the submission advanced by learned counsel for the applicant with regard to absence of the name of present applicant in the complaint dated 14.02.2023 moved by the first informant to the SHO is concerned, perusal of the later part of the FIR 07.03.2023 reveals that she has unequivocally stated that on 16.02.2023 when she went to the doctor, she had recognized the persons who was present on the date of occurrence. As per FIR version, accused was known to the father-in-law of the first informant, who is running his cobbler shop by side the shop of the accused. Questioning the injury inflicted to first informant, in the light of the medical report and the statement of the doctor, is not much relevant as well at this stage, which is a subject matter of trial and, therefore, this Court constraint itself to give any observation with respect to the injuries and the genuineness of the medical report.

9. Having considered the entire contents of an F.I.R. and the other supporting documents, which are part of the case diary, prima facie, complicity of present applicant in the commission of crime cannot be ruled out. The innocence of the present applicant as is being tried to put-forward by the learned counsel for the applicant is a matter of trial which can more appropriately be adjudicated upon by the learned trial court after appreciating the evidence on record. At this juncture, in exercise of inherent power under Section 482 CrPC, this Court is not expected to conduct a mini trial to examine the innocence of the present applicant in the light of the submission as advanced by learned counsel for the applicant. In the charge sheet and the summoning order, under challenge, I did not find any abuse of process of Court or any ground to pass an order to secure the ends of justice. Opportunity is still open to the present applicant to adduce the evidence and prove his innocence before the trial court.

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

11. 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.

12. 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.

13. 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."

14. 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.

15. 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."

16. 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."

17. 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.

18. 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.

19. 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.

20. Having considered the rival submissions advance by learned counsel for the applicants 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. Resultantly, the instant application, being misconceived and devoid of merits, is dismissed with no order as to costs.

21. Before parting, learned counsel for the applicant 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 applicants 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.

22. 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.

Order Date :- 13.10.2023

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