Allahabad High Court
Varun Thakur vs State Of U.P. And Another on 28 March, 2018
Equivalent citations: AIRONLINE 2018 ALL 5496
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Order Reserved on : 20.02.2018 Order Delivered on : 28.03.2018 Court No. - 14 Case :- APPLICATION U/S 482 No. - 5359 of 2018 Applicant :- Varun Thakur Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Deepak Rana Counsel for Opposite Party :- G.A. Hon'ble Umesh Chandra Tripathi,J.
1. Heard Sri Deepak Rana, learned counsel for the applicant and Sri L.D. Rajbhar, learned A.G.A. for the State of U.P.
2. By way of instant application under Section 482 of Code of Criminal Procedure (in short 'Cr.P.C.'), prayer has been made to quash the impugned charge sheet dated 15.04.2017, cognizance order dated 05.05.2017 as well as the entire proceeding against the applicant arising out of Case Crime No. 817 of 2016 (State of U.P. v. Varun Thakur) under Sections 354B, 323, 504, 506 IPC, Police Station - Noida Sec-20, District - Gautam Buddha Nagar pending in the court of Chief Judicial Magistrate, Gautam Buddha Nagar.
3. To dispose of this matter, brief narration of facts is necessary, which is as follows.
4. Vineet Arora, husband of opposite party no. 2 Arti Arora lodged a non-cognizable report on 05.06.2016 at 09.15 P.M. at Police Station - Noida Sec-20, District - Gautam Buddha Nagar with the allegation that on 05.05.2016 at about 04.17 P.M., labour of Rakesh Narang were painting the upper part of his house using ladder. That ladder was put inside the flat of informant Vineet Arora. The labour had also painted wall of 'chhajja' (balcony) of informant Vineet Arora's house. He asked the labour to remove the paint from the wall of his balcony, on which, Rakesh Narang got enraged and threatened him. After ten minutes, applicant Varun Thakur, brother-in-law of Rakesh Narang came on the spot by car. Then he along with Rakesh Narang started abusing informant Vineet Arora and assaulted him brutally. They also scuffled with opposite party no. 2 Smt. Arti Arora. Thereafter, on 08.06.2016 at about 02.00 P.M., Smt. Arti Arora lodged a first information report at Police Station - Noida Sec-20 at Case Crime No. 817 of 2016 under Section 354B, 323, 504, 506 IPC of the same incidence with additional fact that her dignity was also shattered.
5. Sri Rakesh Narang also lodged a first information report on 05.06.2016 at 07.00 P.M. at Police Station - Noida Sec-20 at Case Crime No. 806 of 2016 under Section 324, 352, 504 IPC alleging that on 05.06.2016 at about 04.15 P.M., Smt. Arti Arora and her husband Vineet Arora were causing obstruction in painting of outer wall of Rakesh Narang's house. When Smt. Sapna Thakur Narang, wife of Rakesh Narang requested them not to do so, they started abusing her. They scuffled with Rakesh Narang and attacked him with a sharp-edged weapon. When applicant Varun Thakur tried to rescue him, he sustained grievous injury on his right hand by the weapon.
6. Applicant Varun Thakur and Vineet Arora were medically examined on the same day (05.06.2016) at 05.00 P.M. and 05.20 P.M., respectively at Community Health Center, Sector 30, Noida by the same doctor (Dr. Richa). In this case, the police has submitted charge-sheet under Section 323, 504, 506 IPC against the applicant Varun Thakur and his brother-in-law Rakesh Narang. Later on, after recording statement of Smt. Arti Arora under Section 164 Cr.P.C., the police submitted charge-sheet, adding Section 354B IPC against the applicant.
7. Learned counsel for the applicant contended that the proceedings were initiated on malicious ground, as a counterblast to the proceedings initiated by Rakesh Narang, brother-in-law of applicant Varun Thakur. Relying on the verdict of Hon'ble Apex Court in M/s. Eicher Tractor Ltd. and others v. Harihar Singh and another 2009 (64) ACC 296, he further contended that proceedings under Section 482 Cr.P.C. are maintainable, even though alternative remedy is available to the applicant under the statute. In M/s. Eicher Tractor Ltd.'s case (supra), Hon'ble Apex Court held as under :
5. Exercise of power under section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers 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 (iii) 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 recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the section through 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 such 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 process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complainant, 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 toto.
8. Hon'ble Apex Court also referred to its earlier judgment in State of Haryana And Ors v. Ch. Bhajan Lal And Ors 1992 SCC Supl. (1) 335 in which Hon'ble Apex Court held that power under Section 482 Cr.P.C. may be exercised by the High Courts in the following categories :
'' (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 1552 (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 Act concerned (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 Act concerned, 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. ''
9. In M/s. Eicher Tractor Ltd.'s case (supra), Hon'ble Apex Court added that the power should be exercised sparingly and that too in the rarest of rare case. However, the proceedings of the aforesaid case were quashed, holding that the case squarely fell within the parameters indicated in category (7) of Bhajan Lal's case (supra).
10. It is further contended by learned counsel for the applicant that in M/s. Eicher Tractor Ltd.'s case (supra), alternative remedy was available to the applicant to get discharged under Section 245 Cr.P.C., even though Hon'ble Apex Court held that application under Section 482 Cr.P.C. before this court is maintainable. In M/s. Eicher Tractor Ltd.'s case (supra), Hon'ble Apex Court has not considered this point that inherent power is not to be exercised if alternative remedy is available under the statute. This point has been dealt with by Hon'ble Apex Court in Hamida v. Rashid @ Rasheed & Ors 2008 (1) SCC 474. In that case, Hon'ble Apex Court held as follows:
7. It is well established principle that inherent power conferred on the High Courts under Section 482 Cr.P.C. has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 Cr.P.C. were examined in considerable detail in Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 and it was held as under :
"The following principles may be stated in relation to the exercise of the inherent power of the High Court - (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
8. In State v. Navjot Sandhu (2003) 6 SCC 641 (para 29), after a review of large number of earlier decisions, it was held as under : "29. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
9. In Arun Shankar Shukla v. State of U.P. (1999) 6 SCC 146 the High Court had entertained a petition under Section 482 Cr.P.C. after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal this Court set aside the order of the High Court after reiterating the principle that it is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 Cr.P.C. could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482 Cr.P.C. cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.
11. A three-judge Bench of Hon'ble Apex Court in Prabhu Chawla v. State of Rajasthan & Anr 2016 (16) SCC 30 held that :
"...Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice..."
12. Section 239 of Cr.P.C. reads as under :
239. When accused shall be discharged. - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
13. Accordingly, remedy is available to the applicant to get discharged under Section 239 Cr.P.C.
14. There may be cases in which alternative remedy will not help in preventing abuse of process of court. For example, if magistrate takes cognizance of the offence punishable with death or imprisonment for life and criminal proceedings are maliciously instituted with an ulterior motive and mala fide intention. In such circumstances, as per provision of Section 437 Cr.P.C., if the accused is not under the age of sixteen years or is not a woman or is not sick or infirm, the magistrate cannot release him on bail and his personal liberty will be curtailed. In such circumstances, if power under Section 482 Cr.P.C. is not exercised, it will be an abuse of process of court.
15. As per law laid down by Hon'ble Apex Court in the aforementioned cases, general rule is that inherent power is not to be resorted to if there is specific provision in the code or any enactment for the redressal of grievance of the aggrieved party, but in exceptional cases, if specific provision in the code or any enactment for the redressal of grievance is not able to protect the personal liberty of the aggrieved party, the extraordinary jurisdiction under Section 482 Cr.P.C. may be invoked.
16. In Hamida's case (supra), Hon'ble Apex Court further observed that :
''........The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 Cr.P.C. at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice.''
17. In the present case, from the perusal of FIR lodged by Rakesh Narang and Smt. Arti Arora and also from the perusal of material on record, it is evident that the incidence had taken place on 05.06.2016 at about 04.15 P.M. At this stage, in extraordinary jurisdiction, credence of facts/version of parties is not to be examined. It shall be examined by the trial court on the basis of evidence produced. At this stage, it cannot be said that proceedings have maliciously been instituted against the applicant with ulterior motive and mala fide intention.
18. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this court under Section 482 Cr.P.C.
19. In view of above, the prayer for quashing the impugned charge sheet dated 15.04.2017, cognizance order dated 05.05.2017 as well as the entire proceeding against the applicant arising out of Case Crime No. 817 of 2016 (State of U.P. v. Varun Thakur) under Sections 354B, 323, 504, 506 IPC, Police Station - Noida Sec-20, District - Gautam Buddha Nagar pending in the court of Chief Judicial Magistrate, Gautam Buddha Nagar is hereby refused.
20. In the result, the instant application under Section 482 Cr.P.C. is rejected.
Order Date :- 28.3.2018 I. Batabyal [Umesh Chandra Tripathi,J.]