Sharadkesarwani And 2 Others vs State Of U.P. Thru. Prin. Secy. Home Lko. ...
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Allahabad High Court

Sharadkesarwani And 2 Others vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 3 July, 2024

Author: Shamim Ahmed

Bench: Shamim Ahmed

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2024:AHC-LKO:45198
 
Court No. - 16
 

 
Case :- APPLICATION U/S 482 No. - 4193 of 2024
 
Applicant :- Sharadkesarwani And 2 Others
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Swetank Sharma,Prashant Tiwari
 
Counsel for Opposite Party :- G.A.,Ajay Kumar Singh Tomar
 

 
Hon'ble Shamim Ahmed,J.
 

1. Heard Sri Prashant Tiwari along with Swetank Sharma, learned counsel for the applicants as well as Sri Ajay Kumar Singh Tomar, learned counsel for the opposite party No.3 and Sri Ashok Kumar Singh, learned A.G.A.-I for the State.

2. The instant application under Section 482 Cr.P.C. has been filed with a prayer to quash the summoning order dated 13.01.2021, bailable warrant dated 31.07.2023, charge sheet no.01 dated 27.09.2020 and charge sheet no.02 dated 11.12.2019 as well as to quash the entire proceedings of Case No.3582 of 2021, Case Crime No.269 of 2019, under Section 406 I.P.C., Police Station Kaiserbagh, District Lucknow.

3. On 11.06.2024 this court had passed the following order:

"1. Sri Ajay Kumar Singh Tomar, Advocate has filed his Vakalatnama on behalf of mother of the opposite party No.3-Smt. Neena Shukla, the same is taken on record.

2. Heard Sri Prashant Tiwari, learned counsel for the applicants as well as Sri Ajay Kumar Singh Tomar, learned counsel appearing on behalf of mother of the opposite party No.3 and Sri Ashok Kumar Singh, learned A.G.A.-1 for the State.

3. In compliance of order dated 30.05.2024, mother of the opposite party No.3-Smt. Neena Shukla is present before this Court in person, who has been brought before this Court by Ms. Anamika Singh Chauhan Lady Sub-Inspector of Police, Police Station Aliganj, District Lucknow. Smt. Neena Shukla has been identified by her counsel Sri Ajay Kumar Singh Tomar.

4. Ms. Vidushi Shukla, who is at present in USA California has sent a letter dated 07.06.2024 to the Station House Officer of Police Station Aliganj, District Lucknow that she may be allowed to appear through video conferencing, if the Hon'ble Court may deem it proper and she has also written in her letter that she has executed a Power of Attorney in the name of her Mother Smt Neena Shukla, who was with her in the US for the last few moths and has now returned to Lucknow on Ist June, 2024. The letter is taken on record.

5. Ms. Vidushi Shukla, who is at present in USA California today on Video confernce has clearly stated before this Court that the amount, which is due with the applicants be paid to her mother Smt Neena Shukla, who will accept the same on her behalf.

6. The mother of the opposite party No.3-Smt. Neena Shukla has produced Special Power of Attorney. The same is taken on record. The relevant paragraphs of Special Power of Attorney is being quoted herein below:

"1.To engage or appoint any legal practitioner to conduct the said cases and to pay is fees.

2. To sign, verify and file any case, petition etc.

3. To make and present to the court application in connection with any proceeding in the said cases.

xxx

xxxx

6. to file and receive documentary evidence, summons or any other documents.

xxxx

8. To receive award money in cash or through cheque due to me under such decree or order and to certify the payment to the court and to issue receipt thereof.

9. To deposit the money, cheque of the aforesaid case, in my bank account on my behalf under his signatures.

10. To deposit and withdraw any money for the purpose of any proceedings.

xxx

xxx

xxxx

xxxxx

xxxxxx"

7. Thus, in view of the letter dated 07.06.2024 written by Ms. Vidushi Shukla, who is at present in USA California to the Station House Officer of Police Station Aliganj, District Lucknow; conversation made though video conference and as per the terms and conditions of the Special Power of Attorney, the Bank Demand Draft of Rs. 6 Lakh drawn in favour of Vidusshi Shukla dated 22.05.2024 bearing No. 764518 of Union Bank of India, which has been deposited before the learned Senior Registrar of this Court, be paid to mother of the opposite party No.3-Smt. Neena Shukla today itself.

8. The balance amount as per the RERA order shall be paid to the mother of the opposite party No.3 Smt. Neena Shukla with interest up to date on the next date fixed i.e. 03.07.2024 by way of Bank Draft, which should be brought in the name of Ms. Vidushi Shukla.

9. List this case on 03.07.2024 before this Court for further orders.

10. On the next date fixed, mother of the opposite party No.3-Smt. Neena Shukla shall appear in person before this Court to receive the draft of balance amount.

11. The personal appearance of Ms. Anamika Singh Chauhan Lady Sub-Inspector of Police, Police Station Aliganj, District Lucknow is exempted till further orders of this Court.

12. Interim order, granted earlier, is extended till the next date of listing."

4. In compliance of order dated 11.06.2024, learned counsel for the applicant Sri Prashant Tiwari has brought the Bank Draft of Rs. 10,00,000/- (Rs. Ten Lakhs), drawn in favour of Vidushi Shukla, opposite party No.3 bearing Draft No. 764539 dated 01.07.2024 (Union Bank). The said Draft is being handed over to Smt Neena Shukla, mother of opposite party No.3 before this Court, after keeping the photo stat copy of the same on record.

5. Smt. Neena Shukla, mother of the opposite party No.3 submits that the entire amount of Rs. 56 Lakhs has been paid to Vidushi Shukla and no amount is due. Vidushi Shukla, opposite party No.3 through video conferencing from USA submits that as the entire amount of Rs. 56 Lakhs has been received she is not interested to pursue this matter any further and also submits that she has no objection if the proceedings of the present case be quashed by this Court and the present application be allowed.

6. Learned counsel for the opposite party No.3 and Smt Neena Shukla, mother of opposite party No.3 also submit that they have has no objection if the proceedings of the present case be quashed by this Court and the present application be allowed, as the entire amount of Rs. 56 Lakhs has been paid to Vidushi Shukla and no amount is due.

7. Sri Ashok Kumar Singh, learned A.G.A.-I for the State made an agreement with the argument advanced by learned counsel for the applicant and learned counsel for the opposite party No.3 and submits that as the entire amount of Rs. 56 Lakhs has been paid to Vidushi Shukla and no amount is due and the opposite party No.3 does not want to pursue the matter any further no useful purpose would be served if the proceedings of the aforesaid case go on further.

8. After considering the entire facts and circumstances of the case as well as after considering the arguments as advanced by learned counsel for the parties, this Court finds it appropriate to discuss some judgments which have been pronounced by Hon'ble the Supreme Court of India.

9. Hon'ble the Supreme Court of India in the case of Lalankumar Singh and Others vs. State of Maharashtra reported in 2022 SCC Online SC 1383 has specifically held in paragraph No.38 that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. Paragraph No.38 of Lalankumar Singh and Others (supra) is being quoted hereunder:-

"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation, which reads thus:

"51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."

10. Further, Hon'ble the Supreme Court of India has provided guidelines in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 for the exercise of power under Section 482 Cr.P.C. which is extraordinary power and used separately in following conditions:-

"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 F.I.R. 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 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 to private and personal grudge."

11. Further the Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iii) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283 and (iv) Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, AIR 2021 SC 1918.

12. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.

13. In M/s Pepsi Food Ltd. and another Vs. Special Judicial Magistrate and others: 1998 (5) SCC 749, Hon'ble Apex Court has observed:

"Summoning of an accused in a criminal case, is a serous matter. Criminal law can not be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning the accused. Magistrate had to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

14. In the instant case, there is nothing in the summoning order to show that the Magistrate concerned perused the material available on record before passing summoning order. Hence the summoning order is bad in the eyes of law and resultantly it is not sustainable and, in view of the statement made by the opposite party No.3 and her mother, it deems proper and meet to the ends of justice that the proceeding of the aforementioned case be quashed.

15. The present 482 Cr.P.C. application stands allowed. The entire proceedings of Case No.3582 of 2021, Case Crime No.269 of 2019, under Section 406 I.P.C., Police Station Kaiserbagh, District Lucknow and the summoning order dated 13.01.2021, bailable warrant dated 31.07.2023, charge sheet no.01 dated 27.09.2020 and charge sheet no.02 dated 11.12.2019 are hereby quashed.

16. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

17. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

18. Office is directed to transmit a copy of this order to the learned trial court concerned immediately.

Order Date :- 3.7.2024

Arvind