Allahabad High Court

Rajan@ Rajan Kumar Gupta And 3 Others vs State Of U.P. And Another on 17 August, 2023

Author:
Dinesh Pathak

Bench:
Dinesh Pathak

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2023:AHC:165318

Court No. - 90

Case :- APPLICATION U/S 482 No. - 18927 of 2023

Applicant :- Rajan@ Rajan Kumar Gupta And 3 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Anwar Ali

Counsel for Opposite Party :- G.A.,Pawan Kumar Singh Kaushik

Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicants, learned counsel for opposite party no. 2 as well as learned A.G.A. and perused the record.

2. The present applicants have invoked the inherent jurisdiction of this Court under
Section 482
Cr.P.C. to quash the entire proceedings of Complaint Case No. 9055 of 2021 (Shivnath Gupta Vs. Rajan and others), under
Section 323
,
,
I.P.C., Police Station- Phephana, District- Ballia, pending in the court of Chief Judicial Magistrate, Ballia as well as summoning order dated 15.12.2022 passed by the learned Magistrate.

3. Opposite party no. 2 has moved a complaint dated 07.12.2021 with an averment that the marriage of his son, namely, Ashish Gupta was solemnized with Smt. Pooja D/o Ram Saran, who is sister of the present applicants/accused. Due to the family discord, intending to observe peace and tranquility, he has left his parental house and living separately in district Ballia and possession of the house has been given to daughter-in-law, namely, Pooja, however, he is running a shop in the front portion of the said house. Due to the notorious act of brothers of the daughter-in-law, complainant has lodged an F.I.R., wherein he used to do pairvi. On 16.10.2021 all accused persons, with common intention, have beaten the complainant up and threatened him for facing dire consequences, in case, he does not stop doing pairvi in criminal case. On 12.11.2021 they came to the shop of the complainant along with some unknown persons and badly abused and thrashed to the complainant. They have stolen money, which was kept in moneybox and thrown the moneybox about one kilometer away from the shop. They have also broken the mobile phone of the complainant. In support of his case, the complainant has made statement under
Section 200
Cr.P.C. and to corroborate the incident, as mentioned in the complaint, P.W.-1, P.W.-2 and P.W.-3 have also made their statement under
Section 202
Cr.P.C. Considering the contents of the complaint and the statements under
Sections 200
and
Cr.P.C., learned Magistrate has issued process against the present applicants (accused) under
Section 323
,
and
I.P.C. vide order impugned dated 15.12.2022. Having been aggrieved, present application has been filed assailing the summoning order.

4. Learned counsel for the applicants submits that matrimonial discord has illegally been tried to be dragged in the instant criminal proceeding. Previously, Smt. Pooja had made a complaint of torture and cruelty for demand of dowry, however, on compromise took place between the parties, she has been permitted to live separately in the parental house. It is further submitted that now the in-laws of Smt. Pooja are intending to throw her from the house where she is residing, therefore, a complaint has been moved on behalf of the father-in-law. It is further submitted that false and malicious prosecution has been made against the present applicants, who used to help their sister. It is further submitted that the complaint has been moved only to exert pressure upon the present applicants so that they may not help their sister and come to a compromise on the terms of the complainant.

5. Per contra, learned A.G.A. as well as learned counsel for opposite party no. 2 have vehemently opposed the submission as advanced by the learned counsel for the applicants and contended that on the face of record, prima facie, the complicity of the present applicants in the commission of crime cannot be ruled out. It is further contended that learned trial court has rightly passed the summoning order after considering the averment of the complainant and the statements under
Sections 200
and
Cr.P.C., which does not require any interference of this Court in exercise of its inherent jurisdiction under
Section 482
Cr.P.C. It is further contended that at this juncture innocence of the present applicants cannot be inferred, which can be adjudicated upon by the trial court more appropriately after appraising the evidence on record to be adduced by the parties. The applicants have still an opportunity to defend their case before the trial court, as such, instant application is liable to be dismissed being misconceived and devoid on merits.

6. Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that clear cut allegation has been made on behalf of the complainant (opposite party no. 2) in his complaint filed against the present applicants (accused), who are brother of Smt. Pooja (daughter-in-law of the complainant). Factum of separate living of Smt. Pooja from her in-laws has not been denied by the present applicants. On the pointed query being raised by this Court, it has been submitted by the learned counsel for the applicant that the husband of Smt. Pooja (son of the complainant) is serving in para military force (C.I.S.F.), who used to live in with battalion at the place of his posting. The parental house of the complainant has been given in the possession of Smt. Pooja, who is residing there solely. The contents of the complaint and the statement made under
Sections 200
and
Cr.P.C. are manifested the strained family situation, wherein complainant (father-in-law of Smt. Pooja) is residing separately in city Ballia, and used to come at his native place for the purposes of running his shop, which is situated at the front of the house in question where Smt. Pooja resides. Considering the surrounding circumstances of the instant case and the submission made by the learned counsel for the parties, prima facie, the complicity of the present applicants in the commission of crime cannot be ruled out. Learned Magistrate has consciously considered the averment of the complaint and the statement made under Sections 200 and 202 Cr.P.C. and, accordingly, issued process against the present applicants (accused) under Sections 323, 504 and 379 I.P.C.

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

8. 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.

9. 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.

10.
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."

11. 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
.

12. 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.

13. 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."

14. 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.

15. 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.

16. 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.

17. Having considered the rival submissions advance by learned counsel for the parties 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.

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

19. 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 applicants appear/surrender 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.

20. As such, the application stands disposed of.

Order Date :- 17.8.2023

Pkb/