Manoj Kumar Singh And Another vs State Of U.P. And Another
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Allahabad High Court

Manoj Kumar Singh And Another vs State Of U.P. And Another on 29 May, 2024

Author: Gautam Chowdhary

Bench: Gautam Chowdhary

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


									
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 20652 of 2016
 

 
Applicant :- Manoj Kumar Singh And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anil Kumar Bajpai
 
Counsel for Opposite Party :- G.A
 

 
Hon'ble Dr. Gautam Chowdhary,J.
 

1. By means of the present application under Section 482 Cr.P.C., the applicant has sought for quashing of the entire proceedings of Complaint Case No. 04 of 2011 (Ajay Kumar Vs. U.P. Singh and others) under Sections 147, 323, 504, 454 (A), 427, 392 I.P.C. Police Station Kotwali, District Varanasi pending before Additional Chief Judicial Magistrate, Court Room No.2, District Varanasi.

2. The facts giving rise to the instant application are that a first information report was lodged by the opposite party no.2-informant namely, Ajay Kumar, pursuant to the order passed on an application under Section 156 (3) Cr.P.C. with the averments that on 08.03.2001 the informant had taken a loan from the Union Bank India Branch Viseshganj, Varanasi in which, some instalments could not be repaid, due to which on 29.12.2009, an agreement/compromise was entered into between the parties that he would repay the entire amount within six months but an ill-will developed in the mind of accused no.1 Udai Pratap Singh, Chief Manager, Recovery, Banch Texsal Theatre Nadesar, and had lodged a F.I.R. against him in Case Crime No. 29 of 2009 under Sections 419, 420, 467, 468, 471 I.P.C. On 03.05.2009 at about 05:00, the accused-Udai Pratap Singh, along with Manoj Kumar Singh (applicant no.1) S.P.Karm (applicant no.2) and Ram Kumar Sharin as well as two unknown persons came to his house and had abused him, when he resisted they had threatened him to leave the house, to enable him to attach. When the informant asked about the attachment order, they started destructing the articles and that the accused -Udai Pratap Singh dragged and slapped him, the accused-applicant no.1 Manoj Singh had exhorted to kill him, the accused-applicant no. 2-S.P. Kark had snatched his golden chain and all the accused persons have had beaten him as well as his mother and had also taken Rs. 50,000/- on alarm, some persons were gathered and all the accused persons have damaged the articles worth Rs. 10.000/- Upon aforesaid averments, a first information report was lodged by opposite party no.2 in Case Crime No. 29A of 2009 under Sections 147, 452, 323, 504, 506, 427, 392 I.P.C. at Police Station Kotwali, District Varanasi. Thereafter, the matter was entrusted for investigation and after recording of the statements under Sections 161 Cr.P.C. as well as collecting evidence, the Investigating Officer found no offence against the applicants, which culminated into submission of the final report no. 61 of 2010 dated 12.12.2010 before the concerned Court, which was protested by the first informant and the learned trial Court vide order dated 22.04.2013 treated it, as complaint, which was registered as Complaint Case No. 04 of 2011 (Ajay Kumar Vs. U.P. Singh and others). After recording of the statements under Sections 200 and 202 Cr.P.C., the learned Additional Chief Judicial Magistrate, Court Room No.2, District Varanasi, vide order dated 05.03.2016 summoned the applicants to face trial under Sections 147, 45(A), 323, 504, 427, 392 I.P.C. It is these proceedings as well as summoning order dated 05.03.2016 are under challenge before this Court.

3. The applicants challenged the aforesaid proceedings before this Court by way of filing the instant application under Section 482 Cr.P.C. which came up for consideration before the co-ordinate Bench of this Court on 15.07.2016 and the co-ordinate Bench of this Court, had been pleased to issue notice to the opposite party no.2 in the meantime, stayed the further proceedings of the aforesaid case.

4. The learned Chief Judicial Magistrate, Varanasi vide its report dated 01.09.2016 has reported that notice has been served upon the opposite party no.2 personally, despite service of notice, neither the opposite party no.2 appeared before this Court nor any counsel has put in appearance on his behalf and it appears that the opposite party no.2 has lost interest in the matter, since the matter pertains to the year 2016, therefore the instant matter is proceeded exparte as against the opposite party no.2. However, I have gone through the pleadings, grounds and also the material available on the face of record.

5. Learned counsel for the applicants submits that the applicant no.1 Manoj Kumar Singh, was the Senior Manager, Assets Recovery Branch, Union Bank of India Varanasi whereas, the applicant no.2 namely, Shiba Prasar Kar was the then Branch Manager of the Union Bank of India, who after serving the bank has retired and their work and conduct were always appreciated by the concerned authorities. Learned counsel further submits that the opposite party no.2 was running a firm in the name and style of M/s Ajay Trading Proprietorship through its proprietor Ajay Kumar son of Channu Lal situated at Mohan Lal Viveshshwar Ganj, Police Station Kotwali District Varanasi and on 08.03.2009 the bank had granted cash credit limit of Rs. 5 lacs, which was enhanced to Rs. 15 lacs on 03.07.2001 again on 11.01.2002 the said limit was enhanced to Rs. 21 lacs against which, sale deed dated 27.02.2001 with respect to the immoveable property of Arazi No. 818 area 40 decimal, registered in the name of Smt. Krishna Devi wife of Channu Lal resident of 18/44 Brahmaghat, Police Station Kotwali District Varanasi, the mother of the opposite party no.2, was mortgaged with the bank. Learned counsel further argued that when the instalments/payment could not be made by the opposite party no.2 the proceedings under of Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act 2002 (hereinafter to be referred to as "SARFAESI Act") was initiated against the firm of the opposite party no.2 as well as guarantor, inspite of the same, the payment was not made. He further submits that in the mean time, stay order dated 27.02.2007 passed by High Court was served before the bank, by one Dr. Abhinav Mishra arising out Misc. Case No. 10811 of 2007 (Dr. Abhinav Mishra and others Vs. Union of Bank of India and others) and after perusing the same, it came to the knowledge that the erstwhile owner of the property in question namely, Smt. Sudha Jaiswal, Shiv Kumar Jaiswal, Smt. Annapurna Jaiswal, Deependra Jaiswal had already mortgaged the deed before the Punjab National Bank Branch Nichi Bagh for providing loan to M/s Laxmi Trading Company and to usurp the bank amount, the erstwhile owner had executed a sale deed dated 27.02.2001 in favour of Smt. Krishna Devi wife of Channu Lal, which was mortgaged with the applicant's bank. Learned counsel next argued that with regard to commission of such forgery upon the bank, a first information report was lodged against the opposite party no.2, his mother-Smt. Krishna Devi, Smt. Sudha Jaiswal, Annapurna Jaiswal, Shiv Kumar Jaiswal, Deependra Kumar Jaiswal on 02.02.2009 by the Chief Manager, Asset Recovery Officer Taxsal Theatre, District Varanasi on 02.02.2009 in Case Crime No. 29 of 2009 under Sections 419, 420, 467, 468, 471 I.P.C. at Police Station Kotwali Sadar, District Varanasi. Learned counsel further argued that the opposite party no.2 only to exert pressure upon the bank had lodged the F.I.R. dated 11.09.2010 against the applicant as well as bank employees. Learned counsel further argued that after lodging of the F.I.R., the matter was investigated in which, final report was submitted, which was protested by the opposite party no.2. Thereafter, the learned trial Court treated the same as a complaint case and relying upon the evidence adduced under Sections 200 and 202 Cr.P.C., the trial Court has summoned the applicants in a routine manner, inspite of the fact, that there is no credible evidence and cogent evidence against the applicants and the learned trial Court without considering the factual aspect that the opposite party no.2 only to wreak vengeance with the bank employees/applicants with a malafide intention just to thwart the recovery proceedings without applying its judicial mind in correct perspective summoned the applicants. Learned counsel for the applicants has relied upon a reported decision of Hon'ble Apex Court in the matter of Priyanka Srivastava and another Vs. State of U.P. and others( 2015) 6 SCC 287 in support of his contention. It is thus contended that the applicants has been victimised of malicious and false accusation and therefore the entire proceedings are liable to be quashed by this Court.

6. Per contra, learned A.G.A. has opposed the application and has stated that there is no illegality or perversity in summoning the applicant thus the instant application is liable to be dismissed in the interest of justice.

7. Heard Sri Anil Kumar Bajpai, learned counsel for the applicants, learned A.G.A. for the State and perused the material on record.

8. Perusal of the material on record shows that earlier the bank had lodged the F.I.R. against the opposite party no.2, in which, charge sheet was submitted and the opposite party no.2 was also enlarged on bail. The bank had also initiated SARFAESI, proceedings against the opposite party no.2, and only to save skin and to exert pressure upon the applicants as well as bank officials, the opposite party no.2 lodged the F.I.R. against the applicants under the charged Sections, in which, after investigation final report was submitted. The opposite party no.2 filed protest petition upon which, the applicants has been summoned to face trial vide order dated 05.03.2016, which proceedings was challenged before this Court in the year 2016, in which, notice was issued to the opposite party no.2 and that the same has been served personally vide report of Chief Judicial Magistrate, Varanasi dated 01.09.2016. More than seven years have lapsed, despite the service of notice, neither any counsel appeared on his behalf nor the opposite party no.2, and it appears that the opposite party no.2 has lost interest into the matter after initiating the proceedings against the applicants with a malafide intention only to thwart the recovery proceedings.

9. So far as legal position on question of quashing of criminal proceedings is concerned, the Hon'ble Apex Court time and again has examined scope of jurisdiction of High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three Judges Bench of the Apex Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding if it comes to conclusion that allowing the proceeding to continue would be an abuse of the process of Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph-7 of the said judgment it has been stated:

"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

10. In case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, Hon'ble Apex Court has elaborately considered the scope and ambit of Section 482 Cr.P.C., with regard to power of the High Court to quash the criminal proceeding. After noticing various earlier pronouncements, the Court enumerated certain categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure the ends of justice. Paragraph 102 of the said judgment which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C., which are extracted as follows:

"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 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. A three-Judges Bench in State of Karnataka vs. M. Devenderappa and another, 2002 (3) SCC 89, by analysing the scope of Section 482 Cr.P.C., laid down that, that the 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 abuse. It was further held that 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. It was observed that while exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though is 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. It was further observed that 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 the 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. Hon'ble Court held that 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 to. In paragraph 8 following was stated:

"8.....Judicial process 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."

12. The Hon'ble Apex Court in the matter of Vineet Kumar and others Vs. State of U.P. and another reported in AIR 2017 SCC 1884 has held that in paragraph no. 39 as under:-

39. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on, if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana Vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with malafide and proceeding is maliciously instituted with an ulterior motive, the HIgh Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana Vs. Bhajan Lal (AIR 1992 SC 604) which is to the following effect.

"(7) Where a criminal proceeding is manifestly attended with malafide 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"

13. Thus it may be seen that the parameters for exercise of power under Section 482 CrPC have been laid down by the Hon'ble Apex Court in several cases. The section does not confer any new power 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 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 recognises and preserves inherent powers of the High Courts. However, 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 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.

14. Taking into account the facts and circumstances of the case, it is clear that to prevent the abuse of process of any court or otherwise to secure the ends of justice, the powers vested with the Court be exercised. In the instant case The opposite party no. 2 vanished away after initiating proceedings against the applicants and that the applicants are facing false/ malicious accusation. Thus, this Court is of the opinion, that false accusation of the innocent person be not permitted to go on and it is a fit case to exercise powers conferred under Section 482 Cr.P.C. as the instant case clearly falls under category-7 enumerated by the Hon'ble Supreme Court in State of Haryana Vs. Bhajan Lal (supra).

15. In view of above, the entire proceedings arising out of Complaint Case No. 04 of 2011 (Ajay Kumar Vs. U.P. Singh and others) under Sections 147, 323, 504, 454 (A), 427, 392 I.P.C. Police Station Kotwali, District Varanasi pending before Additional Chief Judicial Magistrate, Court Room No.2, District Varanasi as well as summoning order dated 05.03.2016 as against the applicants is quashed.

16. Accordingly, the instant application is allowed.

Order Date:-29.05.2024

S.Ali