Gopal Alias Gopal Das Gurjar vs State Of U.P. And 3 Others
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Allahabad High Court

Gopal Alias Gopal Das Gurjar vs State Of U.P. And 3 Others on 19 November, 2024

Author: Dinesh Pathak

Bench: Dinesh Pathak

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:180836
 
Court No. - 76
 

 
Case :- APPLICATION U/S 482 No. - 35044 of 2024
 

 
Applicant :- Gopal Alias Gopal Das Gurjar
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Rashid Ali
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dinesh Pathak,J.
 

1. Heard learned counsel for the applicant as well as learned A.G.A. and perused the record on Board.

2. The applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 13.05.2022 passed by the Additional Sessions/Special Judge, POCSO Act, Sonbhadra in Sessions Trial No.75 of 2022 arising out of Case Crime No.124 of 2021 under Section 323, 504, 506, 354 IPC and 7/8 of POCSO Act read with Section 3(2) (va) of Schedule Caste & Schedule Tribe Act, Police station- Bijpur, District- Sonbhadra whereby application dated 27.02.2024 (paper no.28 kha) moved by the accused (applicant herein) under Section 311 Cr.P.C. has been rejected. Record evince that respondent no.2 has lodged an F.I.R. levelling allegation against the present applicant that he has molested and thrashed her minor daughter. During pendency of the trial, while the evidence of victim (PW-2) is completed on 14.12.2022, present accused has moved an application dated 27.02.2024 (paper no.28 kha) under Section 311 Cr.P.C. to summon the PW-2 again for cross-examination. Prosecution has filed detailed objection (paper no.28 kha) against the said application. After hearing both the parties, learned Special Judge, POCSO Act has rejected the application on the ground of delay by order 13.05.2024.

3. Having considered the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. and perusal of record, it is manifested that PW-2 has been cross-examined by the accused (applicant herein) and after giving proper opportunity of hearing, evidence of PW-2 was closed on 14.12.2022. I am skeptical of the submissions advanced by learned counsel for the applicant that to clarify the role of Guddu, opportunity may be granted to the present applicant to again cross- examine PW-2 inasmuch as she has taken the name of Guddu in her previous cross-examination. Perusal of the statement along with cross-examination of PW-2 (Annexure-9) evince that in her cross-examination, PW-2 has taken the name of Guddu who has taken her to the road on bike.

4. Learned counsel for the applicant has emphasised that Guddu has not been produced as prosecution witness. In the application under Section 311 Cr.P.C., no such plea has been taken by the applicant, however, plea qua Guddu has been raised for the first time before this Court. Even assuming that Guddu has not been made prosecution witness whose name has been taken by the victim (PW-2), it is for the prosecution to whom he wants to produce as a witness. Prosecution cannot be forced to produce the particular person as a witness in the case. While the evidence of PW-2 was concluded on 14.12.2022, it was well within the knowledge of the accused that name of Guddu was taken in her cross-examination. However, no convincing and plausible reasons have been assigned as to why highly belated application under section 311 Cr.P.C. has been moved to cross-examine the PW-2 again. In the application dated 27.02.2024, no specific point/ground has been mentioned on which accused wants to cross-examine the PW-2. At this juncture, seeking a relief to cross-examine PW-2 again intending to clarify the role of Guddu is not justifiable in the eyes of law. The role of Guddu as is being tried to put forward by learned counsel for the applicant, is a matter of examination which can be adjudicated upon by the trial court more appropriately after appraising the evidence on record. I neither found any abuse of the process of law in passing the order impugned 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.

5. 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.

6. 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.

7. 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."

8. 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.

9. 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."

10. 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."

11. 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.

12. 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.

13. Having considered the rival submissions advance by learned counsel for the applicant 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. Learned trial court has not committed any error in rejecting the application under section 311 Cr.P.C. moved on behalf of present applicant. As such, prayer of quashing, as made in instant application, is hereby refused and the present application under Section 482 Cr.P.C. is hereby dismissed.

Order Date :- 19.11.2024

VR