Allahabad High Court
Purnwasi Alias Purnwasi Sahani And 3 ... vs State Of U.P. And 3 Others on 6 November, 2024
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:174317
Court No. - 76
Case :- APPLICATION U/S 482 No. - 30594 of 2024
Applicant :- Purnwasi Alias Purnwasi Sahani And 3 Others
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Ram Bachan Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Pathak,J.
1. Learned AGA has filed copy of the compliance affidavit. As per compliance affidavit, notice is personally served upon Opposite Party No. 2 on 28.9.2024. Despite service of notice, no one has put in appearance on behalf of Opposite Party No. 2.
2. Heard learned counsel for the applicants, learned AGA and perused the record on board.
3. The present applicants have invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of charge sheet dated 9.3.2024, cognizance/summoning order dated 7.5.2024 as well as entire proceeding of Session Case No. 419 of 2024 ( State vs. Purnwasi and others) arising out of Case Crime No. 54 of 2024, under Sections 354, 323, 504 and 506 IPC and Section 7/8 of POCSO Act and Section 3(1) Da, 3 (1) Dha, 3 (1) W (1) of S.C./S.T. Act, Police Station- Nebua Naurgia, District - Kushi Nagar, pending before Special Judge POCSO Act, Kushi Nagar at Padrauna.
4. Opposite Party No. 2 has lodged an FIR, being Case Crime No. 0054 of 2024 dated 13.2.2024, leveling allegation of molestation, thrashing and criminal intimidation against the presentapplicants with an averment that on occurrence of offence dated 12.2.2024 at about 6 p.m. while theniece of the first informant was coming back to home after participating in a congregation to perform Yajna, having found her alone, Poornvasi Sahni (Applicant No.1) had inappropriately touched her. After hearing ordeals of the niece, while the first informant made a complaint of the incident to the family members of applicant No.1, they became annoyedand all the accused (applicants herein) have mobilized at the residence ofthe first informant and hurled caste related filthy language and badly thrashed to thefirst informant and his other family members with sticks. They extended life-threatening threats to thefirst informant.
5. Learned counsel for the applicants has submitted that the Investigating Officer hasillegally arraigned the present applicants in the charge sheet on the basis of false andmalicious prosecution instituted on behalf of the Opposite Party No. 2, however, in fact, no such incident took place on the date of occurrence of offence as averred in the FIR. In fact, first informant has committedforceful sexual assault upon the wife of Dharmendra (daughter-in-law of the applicantNo. 2). In this respect,an application under Section 156(3) CrPC has been filed, which is pending consideration. Hehas emphasized as well, while assailing the cognizance/summoning order, that the same has has been passed in a set proforma without applying mind and without discussing, prima facie, the case as averred in FIR. It is further submittedthat as per the medical report and the statement of the doctor, all injuries inflicted upon theinjured are simple in nature. It is next submitted that sufficient grounds are available for entertaining the instant matter under Section 482 CrPC and quashing the criminal proceeding. In support of his submission, learned counsel for the applicanthas relied upon the cases of Gorige Pentaiah vs. State of A.P. and others, reported in 2009 (64) ACC 430, and Salib @ Shalu @ Salim Vs. State of U.P. and others decided on 8.8.2023, reported in 2023 11 SCR 58, decided by Hon'ble Apex Court.
6. Learned AGA for the State has vehemently opposed the submissions advanced by the learned counsel for the applicants and contended that in view of the charge sheet and the material collected by the Investigating Officer, prima facie, the complicity of the present applicants in the commission of crime cannot beruled out. Statement of victim and the injured collectively discloses the commission of cognizable offence. Thus, instant application may be dismissed, being misconceived and devoidof merits.
7. Having considered the rival submissions advanced by learned counsel for the applicants as well as learned A.G.A. for the State-opposite party and perusal of record on board, it is manifestedthat, prima facie, occurrence of offence on the date of incident and the complicity of thepresent applicants in the commission of crime cannot be ruled out. The statement of injured witness and a statement of victim recorded under Section 161 Cr.P.C., wherein she has unequivocally narrated her ordeal, prima faice, bolster the prosecution case. Medical report and thestatement of the doctor discloses the infliction of simple injury on the body of the injured, however, same cannot be a ground to deny the incident in question and quash the criminal proceeding. Prosecutrix has unequivocally stated in her statement under Section 161 CrPC thatwhile she was advancing to participate in "Klash" immersion ceremony, the applicant No. 1 haspressed her breast (inappropriately touched) in front of general public, however, no one has objected. While a complaint was made to his family members, they brawled. The Investigating Officer, after due investigation hascollected the material evidence and found prima facie case to initiate criminal proceedings against the applicants in different sections of I.P.C. and S.C./S.T. Act. So far as the subsequent application under Section 156 (3) Cr.P.C. filed on behalf of the family members of the applicants levelling allegation of rape and thrashing against the firstinformant and his family members is concerned, it is own pleading of theapplicants that same is still pending consideration. The incident of rape, if any, on 10.2.2024, to wit, two days prior to the date of occurrence of offence as averred in the FIR dated 12.2.2024, and also the subsequent event dated 12.2.2024 as mentioned in the application under Section 156 (3) CrPC, are matter of independent investigation/examination, which can be examined more appropriately by the court concernedwhile considering the prime facie case for the purposes of issuing the summons.
8. Moreover, I amskeptical of the submission advanced by the learned counsel for the applicants that cognizance/summoning order is non-est in the eye of law in asmuch as it has been passed in a set format without applying mind and discussing prima faice case of the first informant as mentioned in the FIR. Taking the cognizance of offence and issuing summons by learned Magistrate/court concerned under Section 190(1)(b) of Cr.P.C. based on police report undoubtedlystands on a different pedestal than that of summoning order passed by the leaned Magistrate in a private complaint. Learned court concerned while taking the cognizance of offence based on police report is not expected toconsider and discuss the case of the parties in detail showing prima facie conviction of the accused. Observation made by learned court would be suffice thathe had gone through the chart sheet and other material on record. Muchdiscussion about the material collected by the Investigating Officer anddiscussion of fact in the light of the material is not required. In the matterof Om Prakash and another Vs. State of UP and another, theco-ordinate Bench of this Court in Application U/s 482 Cr.P.C. No. 3041 of 2022 reported in 2022 8 ILR ALLD 222, after considering the decision of Hon'ble Supreme Court in the matter of State of Gujarat Vs. Afroz Mohammad Hasanfatta reported in (2019) 20 SCC 539 and Pradeep S. Wodeyar Vs. The State of Karnataka reported in 2021 SCC OnLine SC 1140, expounded that in the matter arising out of police case issuing an order of cognizance on the printed proforma does not warrant any indulgence of this Court. It is further observed by the co-ordinate Bench that such cognizance order cannot be treated to be illegal. The relevant paragraph Nos. 13, 14, 15, 16 and 17 of the order passed in the case of Om Prakash and another (supra) is quoted hereinbelow:
"13. The next argument advanced by learned counsel for the applicants is that cognizance order was passed by the court below on printed proforma in cryptic manner, which reflects non-application of judicial mind.
14. The present case is a State case, in which, after investigation charge-sheet has been submitted and court below took cognizance on the basis of police report.
15. The Apex Court in case of State of Gujarat Vs. Afroz Mohammad Hasanfatta (2019) 20 SCC 539 observed as:-
"23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Code of Criminal Procedure and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge- sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) Code of Criminal Procedure, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process.
In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the Accused. Such an order of issuing summons to the Accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the Accused. In a case based upon the police report, at the stage of issuing the summons to the Accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file."
16. Recently, three judge Bench of the Apex Court in the case of Pradeep S. Wodeyar Vs. The State of Karnataka 2021 SCC OnLine SC 1140 after considering the matter in detail observed in paragraph no. 75 as:-
"75. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 Code of Criminal Procedure and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta (supra). The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous."
17. Further, the Apex Court in para 85 (viii) summarised as:-
"85 (viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material;"
9. After careful consideration of the case as setforth in the FIR and the material available on record coupled with the statement of the victim and the injured, and the injury report, prima facie, occurrence of cognizable offence cannot be ruled out. The innocence of the applicants, as is being tried to put forward by learned counsel for the applicants, is a matter of examination which can be adjudicated upon by the trial court more appropriately after appraising the evidence on record. At this juncture, this Court is not expected to conduct a mini trial to examine the innocence of the present applicant. I neither found any abuse of the process of law to the proceeding which has been challenged before this Court nor any justifiable ground to pass any order for the purposes of securing the ends of justice, therefore, there is no justification to exercise inherent power of this Court under Section 482 Cr.P.C.
10. In my considered opinion, none of the guidelines as expounded by Hon'ble Supreme Court in the matter of State of Haryana and others. Vs. Bhajan Lal and Others reported in 1992 Supp (1) SCC 335 are attracted in the givencircumstances of the present case. In case of Salib @ Shalu @ Salim (supra), Hon'ble Supreme Courthas elucidated that in frivolous and vexatious proceedings, Courtowes a duty to look into many other attending circumstancesemerging from the record of the case over and above the averment, if needbe, with due care and circumspection try toread in between the lines. The Court while exercising its jurisdiction under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India need not to restrict itself only to the stage of a case but is empoweredto take into account the overall circumstances leading to the initiation/registration of case as well as the materials collected in the course ofinvestigation (emphasis supplied). However, in the instant matter, no such case is made out. Record reveals that learned counsel for the applicants has raised disputed question of fact qua involvement of present applicants 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 they are 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 A.G.A. and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground is made out to consider the merits of the instant case. As such, prayer of quashing, as made in instant application, is hereby refused.
21. Accordingly, the present application under Section 482 Cr.P.C. is hereby dismissed.
Order Date :- 6.11.2024
vinay
