Allahabad High Court
Wasiullah And Another vs State Of U.P. And Others on 13 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 1848
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On : 06.02.2020(In Court No.34) Delivered On : 13.04.2020(At Residence) At Residence 1. Case :- APPLICATION U/S 482 No. - 4692 of 2003 Applicant :- Wasiullah And Another Opposite Party :- State of U.P. and Others Counsel for Applicant :- D.S.Misra (Senior Advocate),Prabhakar Singh, M. I. Farooqui Counsel for Opposite Party :- Govt. Advocate,Dr. Abida Syed 2. Case :- APPLICATION U/S 482 No. - 2188 of 2004 Applicant :- Smt. Surayya Rani And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- M.A. Qadeer,D.S.Mishra (Senior Advocate), Prabhakar Singh, M. I. Farooqui Counsel for Opposite Party :- Govt. Advocate, Dr.Abida Syed, Pashali Solanki Hon'ble Sudhir Agarwal,J.
1. Heard Sri D. S. Misra, Senior Counsel assisted by Sri M.I. Farooqui, learned counsel for applicants, Sri Syed Ali Murtaza, learned AGA for State and Smt. Pashali Solanki, learned counsel for respondent-2. Criminal Misc. Application u/s 482 No.4692 of 2003 (hereinafter referred to as "CrMA-1") has been filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") by two applicants namely, Wasiullah and Mahfooz with a prayer that proceedings in Case No.1453 of 2000 including Charge sheet No.60 of 2000 pending in Court of Chief Judicial Magistrate IV, Allahabad be quashed.
3. Sri D. S. Misra, learned Senior Counsel assisted by Sri M.I. Farooqui, Advocate appearing for applicant at the outset stated that applicant-1 Wasiullah has already died, hence, CrMA-1 is surviving only in respect of applicant-2 Mahfooz.
4. Facts in brief stated in respect of CrMA-1 is that one Syyed Najib Talha, brother of O.P. No.2, Syyed Mujib, had criminal antecedents. He was indubitable and police was also in his search in various criminal cases. He disappeared in early 1999 and local people believed that he has fled to some gulf country. Opposite party-2 lodged a report dated 20.06.1999 addressed to Station In-charge, Police Station-Kareli, Allahabad that his brother, Syed Najib Talha, was missing. It has been learnt by O.P.-2 that he used to take the daughter of Advocate, M. A. Qadeer to University and other places on his motor cycle. Said daughter Arshi had affairs with many boys which included one Danish of Usha Phone. He also intended to marry Arshi against consent of his family members. For marriage of Arshi, her parents also sent message to parents of Danish. All of a sudden, Danish refused to marry Arshi and told her parents that Najib, brother of Complainant/Informant, told him about character of Arshi, hence, he will not marry her. This was not tolerated by Arshi's mother. In a planned manner, mother of Arshi along with her son Hisham and driver Mahfooj kindnapped Najib along with his motorcyle, bearing registration No.U.P. 70 K 5510, Sujuki Samurai Make, colour black. On the said complaint, Case No.133 of 1999 under section 364 IPC at Police Station-Kareli was registered on 20.06.1999 at 4.30 PM in which date of incident was mentioned as 18.04.1999.
5. After investigation police submitted charge sheet no.60 of 2000 under Section 364 IPC dated 17.10.2000 against accused Suraiyya Rani wife of M. A. Qadeer, Mohd. Hisham, Wasiullah son of Abdul Hakim and Mahfooz son of Ajju Khan.
6. Police during investigation recorded statements of Danish Ahmad son of Rizwan Ahmad, Nadim Mohammad son Late Shri Mohammad, Arshad son of Nisam Ahmad, Rashid son of Ajij Ahmad, Nasir Fakhri son of Maulana Saahid Fakhri, Iqbal Kazmi son of Rabban Kazmi.
7. A counter affidavit has been filed by O. P.-2 wherein lodging of report and charge sheet submitted by police is admitted. It is also said that statements of Arjun Kochar alias Chiku s/o Naresh Kochar and Sajid son of Abdul Hamid were also recorded by police.
8. State has also filed counter affidavit stating that investigation was made and after recording statements under Section 161 Cr.P.C. of various witnesses, police found prima facie case, hence, charge sheet has been submitted against accused-applicants. It is also said that names of applicants have been disclosed clearly during investigation by Nasir Fakri and Ikhlakh Kazami, Arjun Kochar, Rashid, Sazid, Danish.
9. Criminal Misc. Application u/s 482 No.2188 of 2004 (hereinafter referred to as "CrMA-2") has been filed under Section 482 CrPC by two applicants namely, Suraiyya Rani and Mohd. Hisham challenging entire proceedings and order passed in Criminal Case No.1453 of 2000.
10. Since, both matters have arisen from same proceedings, therefore, have been heard together.
11. Sri D. S. Misra, Senior Advocate submitted that there was no credible or otherwise evidence to implicate applicants and, therefore, police has submitted charge sheet on mere conjectures and surmises and the entire proceedings are malicious, to harass applicants, hence, liable to be set aside. He has placed reliance on Supreme Court's judgments in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 and Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, (1998) 5 SCC 749.
12. Charge sheet for trial of offence under Section 364 IPC has been submitted. Proceedings are challenged on the ground that there is no credible prima facie evidence to implicate applicants and entire proceedings are based on conjectures and surmises. First question up for consideration is the scope of judicial review at this stage under Section 482 Cr.P.C. when charge sheet has been challenged and trial is yet to proceed as parties have nor led evidence in Court.
13. The principles which justify interference under Section 482 Cr.P.C. by Court have been laid down in various authorities in which Supreme Court's judgment in State of Haryana vs. Bhajan Lal and others (supra) was leading precedent but thereafter much water has flown and matter has been examined by even Larger Benches. In State of Haryana vs. Bhajan Lal and others (supra) issue of jurisdiction of this Court under Section 482 Cr.P.C. has been considered and what has been laid therein in paragraph 102 has been repeatedly followed and reiterated consistently. In very recent judgment in Google India Private Limited Vs. Visakha Industries and Ors. , AIR 2020 SC 350, guidelines laid down in paragraph 102 in Bhajal Lal's case (supra) have been reproduced as under :
"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 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 to private and personal grudge."
14. Court has also reproduced note of caution given in paragraph 103 in Bhajan Lal's case (supra) which reads as under :
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
15. What would be the scope of expression "rarest of rare cases" referred to in para 103 in State of Haryana vs. Bhajan Lal (supra) has been considered in Jeffrey J. Diermeier and Ors. Vs. State of West Bengal and Ors. , 2010 (6) SCC 243 and Court has said that words "rarest of rare cases" are used after the words 'sparingly and with circumspection' while describing scope of Section 482 CrPC. Those words merely emphasize 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 emphasize that the power under Section 482 Cr.P.C. to quash FIR or criminal proceedings should be used sparingly and with circumspection. Supreme Court in Jeffrey J. Diermeier (supra) infact referred to Three Judges' Bench judgment in Som Mittal Vs. State of Karnataka, 2008 (3) SCC 753, to explain phrase "rarest of rare cases". In Som Mittal (supra), Court also said that exercise of inherent power under Section 482 CrPC is not a rule but exception. Exception is applied only when it is brought to notice of Court that grave miscarriage of justice would be added if trial is allowed to proceed where accused would be harassed unnecessarily or if trial is allowed to linger when prima facie it appears to Court that trial would likely to be ended in acquittal. Whenever question of fact is raised which requires evidence, Courts always said that at pre trial stage i.e. at the stage of cognizance taken by Magistrate power under Section 482 CrPC would not be appropriate to be utilized, since, question of fact has to be decided in the light of evidence which are yet to be adduced by parties.
16. In Lakshman vs. State of Karnataka and others, 2019 (9) SCC 677 Court said that it is not permissible for High Court in application under Section 482 CrPC to record any finding wherever there are factual disputes. Court also held that even in dispute of civil nature where there is allegation of breach of contract, if there is any element of breach of trust with mens rea, it gives rise to criminal prosecution as well and merely on the ground that there was civil dispute, criminality involved in the matter cannot be ignored. Further whether there is any mens rea on part of accused or not, is a matter required to be considered having regard to facts and circumstances and contents of complaint and evidence etc, therefore, it cannot be said pre judged in a petition under Section 482 CrPC.
17. In Chilakamarthi Venkateswarlu and Ors. Vs. State of Andhra Pradesh and Ors., AIR 2019 SC 3913, Court reiterated that inherent jurisdiction though wide and expansive has to be exercised sparingly, carefully and with caution and only when such exercise would justify by tests specifically laid down in Section itself. In paragraph 14 of judgment, Court said :
"14. For interference Under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief."
(emphasis added)
18. Court also said that in exercise of jurisdiction under Section 482 CrPC it is not permissible for the Court to act as if it were Trial Court. Court has only to be prima facie satisfied about existence of sufficient ground for proceeding against accused. For that limited purpose, Court can evaluate material and documents on record but it cannot appreciate evidence to conclude whether materials produced are sufficient or not for convicting accused. High Court should not exercise jurisdiction under Section 482 CrPC embarking upon an enquiry into whether evidence is reliable or not or whether on reasonable apprehension of evidence, allegations are not sustainable, or decide function of Trial Judge. For the above proposition, Court relied on its earlier authority in Zandu Pharmaceuticals Works Limited and others vs Mohd. Sharaful Haque and others, 2005 (1) SCC 122.
19. Power under section 482 CrPC should not be exercised to stifle legitimate prosecution. At the same time, if basic ingredients of offfences alleged are altogether absent criminal proceedings can be quashed under Section 482 CrPC. Relying on M.A.A. Annamalai Vs. State of Karnataka and Ors. , 2010 (8) SCC 524, Sharda Prasad Sinha Vs. State of Bihar, AIR 1977 SC 1754 and Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Ors., 1976 AIR 1976 SC 1947, Court said that where allegations set out in complaint or charge sheet do not constitute any offence, it is open to High Court exercising its inherent jurisdiction under Section 482 CrPC to quash order passed by Magistrate taking cognizance of offence. Inherent power under Section 482 CrPC is intended to prevent abuse of process of Court and to clear ends of justice. Such power cannot be exercised to do something which is expressly barred under CrPC. Magistrate also has to take cognizance applying judicial mind only to see whether prima facie case is made out for summoning accused persons or not. At this stage, Magistrate is neither required to consider FIR version nor he is required to evaluate value of materials or evidence of complainant find out at this stage whether evidence would lead to conviction or not. It has been so observed by in Rakhi Mishra Vs. State of Bihar and Ors., 2017 (16) SCC 772 and Sonu Gupta Vs. Deepak Gupta and Ors. , 2015 (3) SC 424 and followed recently in Roshni Chopra and others vs. State of U.P. and others, 2019 (7) Scale 152. Here Court also referred to judgment in Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal and Ors., (2003) 4 SCC 139, wherein paragraph 9, Court said that in determining the question whether any process has to be issued or not, Magistrate has to be satisfied whether there is sufficient ground for proceeding or not and whether there is sufficient ground for conviction; whether the evidence is adequate for supporting conviction, can be determined only at the trial and not at the stage of inquiry.
20. At the stage of issuing process to the accused, Magistrate is not required to record reasons. In U. P. Pollution Control Board vs. Mohan Meaking Limited and others, 2000 (3) SCC 745 after referring to a decision in Kanti Bhadra Shah Vs State of West Bengal 2001 SCC 722, Court said as under :
"Legislature has stressed the need to record reasons in certain situations such as dismissal of complaint without issuing process. There is no such requirement imposed on a Magistrate for passed detailed order while issuing summons. Process issued to accused cannot be quashed merely on the ground that Magistrate had not passed a speaking order."
21. Same proposition was reiterated in Nupur Talwar Vs Central Bureau of Investigation and others, 2012 (11) SCC 465.
22. In a Three Judges' Bench in Parbatbhai Aahir and Ors. Vs State of Gujarat and Ors, 2017 (9) SCC 641, Court has observed that Section 482 CrPC is prefaced with an overriding provision. It saves inherent power of High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Paragraph 15 of the judgment Court summarized as under :
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance. "
23. Above observations have been reiterated in Arun Singh and other Vs State of U.P. passed in Criminal Appeal no.250 of 2020 (arising out of Special Leave Petition (Crl.) No. 5224 of 2017), decided on 10.02.2020.
24. Reliance placed by learned counsel for petitioner in Pepsi Foods Ltd (supra) on the scope of Section 482 CrPC is also in conformity with law as discussed above. I do not find anything otherwise stated therein or something which is different than what has been discussed above, which may help petitioner in different manner. No doubt Court said that summoning of accused in criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.
25. I do not propose to burden this judgment with similar catena of decisions, since all are in similar lines.
26. Now, I proceed to consider second question, whether proceedings in case can be said to be consicious grave injustice or there is no evidence whatsoever or that no offence is made out.
27. It is not doubted that victim Syed Najib Telha is not traceable. As per evidence recorded by police, on the basis whereof charge sheet has been submitted, he was last seen with accused persons and thereafter he is not traceable. Statements of O.P.2 providing motive to make Syed Najib Telha disappear cannot be doubted at this stage. Whether it is true or not, is a question of fact, has to be seen in trial after parties have led their evidence. Various statements which are on record, constitute sufficient material to implicate accused-applicants for trial of offence under Section 364 IPC. The question that these statements are correct or not is a question of fact which is not to be examined at this stage, since, it is for the Trial Court to examine the same, after recording evidence.
28. In the circumstances, I do not find that any case is made out justifying interference under Section 482 CrPC in both these applications. These applications lack merit.
29. Both applications are dismissed accordingly. Interim order, if any, stands vacated.
Order Date : 13.04.2020 Manish Himwan