Allahabad High Court
Lalli @ Siv Lali And Anr. vs State Of U.P. Thru. Its Secy. Home And ... on 31 January, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 35 Case :- APPLICATION U/S 482 No. - 1805 of 2018 Applicant :- Lalli @ Siv Lali And Anr. Opposite Party :- State Of U.P. Thru. Its Secy. Home And Anr. Counsel for Applicant :- Arvind Kumar Counsel for Opposite Party :- Govt. Advocate Hon'ble Subhash Vidyarthi,J.
Heard Mr. Arvind Kumar, learned counsel for the applicants and Mr. Prem Prakash, learned AGA for the State.
By means of the present application under Section 482 Cr.P.C. the applicants have sought quashing of summoning order and the order dated 12.10.2017 passed by the Additional Sessions Judge, Court No. 5, Barabanki in C.T. No. 39/2017 as well as charge-sheet No. 127/2016 dated 04.09.2016 in case Crime No. 90/2016, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Ramnagar, District Barabanki.
The facts of the case, briefly stated, are that on 29.03.2015 a first information report under Sections 363, 366 IPC was lodged at Police Station Ramnagar, District Barabanki by the opposite party no. 2, Ghan Shyam, father of the applicant no. 1 alleging that Parvesh, Nandu, Pratap and wife of Parvesh have enticed away his daughter-applicant no. 1 alleged to be 15 years of age. Although the applicant no. 2 was not named in the FIR, his name was subsequently added and the name of all the persons made accused in the FIR were expunged upon coming into the light the fact that the applicant no. 1 had married with applicant no. 2.
The applicant no. 1 was produced before the Chief Medical Officer, Barabanki for her medical examination who certified her age to be 18 years.
In her statement recorded under Section 164 Cr.P.C., which was recorded after expiry of a period of four years of the alleged incident and in pursuance of the direction issued by this Court vide order dated 23.06.2016 passed in Writ Petition No. 14565 (MB) of 2016, the applicant no. 1 stated that she had gone away with the applicant no. 2 out of her own free will and she married the applicant no. 2 and is residing with him as his wife. She gave birth to a son who could not survive. She categorically stated that her father had lodged an FIR on false allegations and no wrong has been committed with her. She is living happily with the applicant no. 2 as her parents used to beat her with sticks. She ran-away with the applicant no. 2 out of her own free will.
A copy of the marriage certificate issued by the District Marriage Officer, Barabanki has also been placed on record, in which the age of the applicant no. 2 is mentioned to be 21 years and it has been certified that the applicant no. 1 got married to the applicant no. 2 on 09.07.2015.
The applicants have also brought on record a copy of a certificate dated 05.03.2018 issued by the Village Pradhan certifying that the applicant no. 1 is the wife of the applicant no. 2, they reside in Village Utkhara, Police Station and Tehsil Ramnagar, District Barabanki and they have got a son, namely, Kishan who was born on 04.12.2017. The applicants have also filed a copy of "Mother and Child Care Card" issued by the Integrated Health Development Service, National Health Mission which states that the applicant no. 1 gave birth to a son on 04.12.20174 and in this card apparently prepared in the year 2017, the age of the applicant no. 1 stated to be 20 years.
By means of an order dated 04.04.2018, notice was ordered to be issued to the opposite party no. 2-informant and the respondent-State was also given opportunity to file its objections/counter affidavit.
The learned Chief Judicial Magistrate, Barabanki has submitted a report dated 23.04.2018 stating that the notice issued to the opposite party no. 2 has been served in person but in spite of personal service of notice, the opposite party no. 2 has not filed any objection nor a counter affidavit in this case. The State has also elected not to oppose the application by filing a counter affidavit.
It has been pleaded in the affidavit filed in support of the application that the applicants had filed Writ Petition No. 14565 (MB) of 2016 seeking quashing of the FIR registered as case Crime No. 90/2016, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Ramnagar, District Barabanki lodged by the opposite party no. 2 and by means of an order dated 23.06.2016 this Court had disposed off the writ petition with a direction that till a report under Section 173 (2) Cr.P.C. was forwarded by the police, the applicants shall not be arrested in the aforesaid case crime.
It has been pleaded by the applicants that the applicant no. 1 was found to be major in her medical examination and was willing to go with her husband-applicant no. 2, however, her father deliberately detained her and, therefore, the applicant no. 1 had to approach this Court again by filing Writ Petition No. 21317 (HC) of 2016 and when the applicant no. 1 was produced in this Court, she categorically stated that she wanted to go with the applicant no. 2-Tannu Yadav son of Parag Yadav.
By means of the judgment and order dated 19.09.2016, the aforesaid writ petition was allowed and the applicant no. 1 was allowed to live her life as per her own wish and since then applicant no. 1 is residing with the applicant no. 2 as wife and husband peacefully.
The applicants had filed the instant application under Section 482 Cr.P.C. on 02.04.2018 and on 04.04.2018, this court had passed an order issuing notice of the application to the opposite party no. 2, which was served on him personally on 22.04.2018. However, the opposite party no. 2 has not put in appearance in the case to contest the same and it appears that he is not interested in prosecution of the applicant no. 2, who is now the son-in-law of the informant - opposite party no. 2.
The scope of interference by the High Courts in proceedings under Section 482, Cr.P.C. has been succinctly laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, in the following words: -
"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 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."
12. In Vineet Kumar versus State of U.P. reported in (2017) 13 SCC 369, the Hon'ble Supreme Court has been pleased to hold that: -
"41. 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 v. 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 materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal, which is to the following effect: (SCC p. 379, para 102) "102. (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."
In Pankaj Kumar v. State of Maharashtra, (2008) 16 SCC 117, the Hon'ble Supreme Court was pleased to explain the scope and ambit of powers of the High Courts under Section 482, Cr.P.C. in the following words: -
"14.The scope and ambit of powers of the High Court under Section 482 CrPC or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases,ex debito justitiaeto do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (See Janata Dal v.H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] ,Kurukshetra University v. State of Haryana [(1977) 4 SCC 451 : 1977 SCC (Cri) 613] and State of Haryana v.Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] .)"The expression "rarest of rare cases" used by the Hon'ble Supreme Court in Bhajan Lal has been explained in Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162 in the following words: -
"43. As to what is the scope of the expression "rarest of rare cases" indicated in para 103, we may only refer to the judgment of this Court in Jeffrey J. Diermeier v. State of W.B.,(2010) 6 SCC 243 wherein the law laid down by a Bench of three Judges in Som Mittal (2) v. State of Karnataka (2008) 3 SCC 574 has been referred to : (Jeffrey J. Diermeier case(2010) 6 SCC 243, SCC p. 252, para 23) "23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. State of Karnataka(2008) 3 SCC 574. Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said : (SCC pp. 580-81, para 9) ''9. When the words "rarest of rare cases" are used after the words "sparingly and with circumspection" while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection.'"
In a recent pronouncement reported in 2021 SCC Online SC 873, Geo Varghese Vs. State of Rajasthan, the Hon'ble Supreme Court held as under:-
"35. The scope and ambit of inherent powers of the Court under Section 482 CrPC or the extra-ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, every High Court has inherent power to actex debito justitiaei.e., to do real and substantial justice, or to prevent abuse of the process of the Court. The powers being very wide in itself imposes a solemn duty on the Courts, requiring great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power vested in the Court should not be exercised to stifle a legitimate prosecution. However, the inherent power or the extra-ordinary power conferred upon the High Court, entitles the said Court 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 the ends of justice require that the proceeding ought to be quashed.
36. The following observations made by this Court in the case of State of Karnataka v. L. Muniswamy may be relevant to note at this stage:--
"The whole some power under Section 482 CrPC entitles the High Court to quash a proceeding when 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 High Courts have been invested with inherent power, both in civil and criminal matters, to achieve a salutary public purposes. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature."
The entire material available on record, including the statements of the applicant no. 1 under Section 161 Cr.P.C. and Section 164 Cr.P.C., report of the medical examination of the applicant no. 1 conducted by the Chief Medical Officer, Barabanki, the certificate of registration of marriage of the applicant no. 1 and applicant no. 2 and the mother and child safety card issued by the Integrated Child Development Services, National Health Mission establish that the applicant no. 1 is major, she had gone with the applicant no. 2 and has married him willingly and the allegations levelled against the applicant no. 2 in the FIR are false. The police has submitted the charge-sheet dated 04.09.2016 and the Additional Sessions Judge, Court No. 5, Barabanki has passed an order summoning the applicant no. 2 and has issued non-bailable warrant against him without a proper application of mind to the aforesaid material available on record.
The State as well as the opposite party no. 2 have not filed any counter affidavit and, therefore, the averments made in the affidavit filed in support of the application under Section 482 Cr.P.C. remain uncontroverted.
Considering the aforesaid facts and circumstances, it appears that the FIR in question was lodged on false allegations and the proceedings initiated on the basis of the said FIR are a clear abuse of the process of law.
Therefore, in view of the above and considering the dictum of the Apex Court, the entire proceedings initiated in pursuance of the charge-sheet No. 127/2016 dated 04.09.2016 in case Crime No. 90/2016, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Ramnagar, District Barabanki as well as summoning and NBW dated 12.10.2017 including the charge-sheet No. 127/2016 and FIR registered as case Crime No. 90/2016 are hereby quashed.
Accordingly, the application is allowed.
[Subhash Vidyarthi, J.] Order Date :- 31.1.2022 Santosh/-