Allahabad High Court
Kailash Chaurasiya And Another vs State Of U.P. And Another on 17 December, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:197327 Reserved Court No. - 75 Case :- APPLICATION U/S 482 No. - 24211 of 2024 Applicant :- Kailash Chaurasiya And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinay Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material brought on record.
2. The present application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings, including cognizance order dated 11.05.2018 as well as charge-sheet dated 21.04.2017, of Case No. 2893 of 2018, (State Vs. Kailash Chaurasiya and Another), arising out of Case Crime No. 76 of 2017, under Sections - 171-H, 188 I.P.C., Police Station - Kotwali Shahr, District - Mirzapur, pending in the court of Chief Judicial Magistrate, Mirzapur.
3. On 09.02.2017, Sri Subhash Chandra Singh, Assistant Engineer, Rural Engineering Department, Mirzapur has lodged first information report, alleging that he along with some other officials was part of flying squad in relation to assembly elections pertaining to Sadar Constituency, Mirzapur. In that election applicant-accused Kailash Chaurasiya, who was a Samajwadi Party candidate, was carrying a procession comprising about 1,000 persons and that one government escort gypsy was also being used for canvassing purpose. It was further alleged that in City Club Lawn, a meeting of about 1200 persons was held against the sanctioned strength. The first information report was registered against applicant No.1 and two others under Sections - 171-H, 188 I.P.C. and after investigation, charge sheet was submitted for offences under Section -171-H, 188 I.P.C.
4. Learned counsel for the applicants submits that no prima facie case is made out against the applicants/accused. In view of the provisions under Section 195 Cr.P.C., the prosecution of applicants for the offence under Section 188 IPC is permissible only on a complaint in writing made by the competent officer, whose order could have been violated by the accused. The prosecution for offence under Section 188 IPC cannot be initiated on a police report filed under section 173(2) Cr.P.C.. It was submitted that cognizance for offence under Section 188 I.P.C. against the applicants is against the law.
5. It was further submitted that so far the offence under Section 171-H IPC is concerned, there is absolutely no allegations so as to make out the ingredients of that offence and thus, no prima facie case under Section 171-H IPC is made out. Referring to these facts, it was submitted that the trial court did not consider the matter in correct perspective while taking cognizance and summoning the applicants for the aforesaid offences. It was submitted that the impugned proceedings are nothing but are abuse of the process of court and thus, the impugned proceedings, including summoning order are liable to be quashed. In support of his contentions, learned counsel has reliance upon the case of Harvinder Singh @ Romi Sahni v. State of U.P. [Application u/s 482 Cr.P.C. No. 9190 of 2022], decided on 13.12.2022.
6. Learned A.G.A. has opposed the application and submitted that there are allegations against the applicants that during election of Legislative Assembly in the year 2017, the applicant no.1, being contesting candidate of Samajwadi Party, was taking out a road show comprising about 1000 persons and meeting of about 1200 persons was held in City Club Lawn, against the sanctioned limit. It was submitted that a prima facie case is made out against the applicants.
7. I have considered rival submissions and perused the record.
8. Before proceeding further, it would be apt to quote Section 195 Cr.P.C., which reads as under:-
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-(1) No Court shall take cognizance -
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), 1 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appellable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
9. Thus, it is apparent that in respect of offences punishable under Sections 172 to 188 IPC or abetment thereof, the Court can take cognizance only on a complaint in writing made the public servant concerned or some public servant to whom he administratively subordinate. The prohibitory orders are issued by the executive Magistrates. In the instant matter, admittedly no such complaint of public servant concerned has been filed and the cognizance has been taken on the charge-sheet submitted by the police. The charge-sheet / report under section 173(2) Cr.P.C. cannot be treated to be a complaint, as envisaged under section 195 Cr.P.C.
10. In view thereof, taking cognizance for offence under Section 188 I.P.C. by the learned Trial Court is hit by Section 195 Cr.P.C. and therefore, the order taking cognizance for offence under Section 188 I.P.C. against the applicants on a police report is not sustainable and impugned proceedings under section 188 I.P.C. are liable to be quashed.
11. So far the offence under Section 171-H I.P.C. is concerned, it would be relevant to reproduce the provisions of section 171-H I.P.C., which reads as under:
"[171H. Illegal payments in connection with an election.?Whoever without the general or special authority in writing of a candidate incurs or authorises expenses on account of the holding of any public meeting, or upon any advertisement, circular or publication, or in any other way whatsoever for the purpose of promoting or procuring the election of such candidate, shall be punished with fine which may extend to five hundred rupees:
Provided that if any person having incurred any such expenses not exceeding the amount of ten rupees without authority obtains within ten days from the date on which such expenses were incurred the approval in writing of the candidate, he shall be deemed to have incurred such expenses with the authority of the candidate."
12. From the aforesaid provision, it is quite apparent that the said provision deals with mischief of illegal payment made in connection with an election. In the instant matter, there is absolutely no such allegation that applicants/accused have incurred or authorized expenses on account of holding of any public meeting or upon any advertisement, circular or publication for the purpose of promoting or procuring the election of such candidate. In fact in the first information report, it was mentioned that during election of Legislative Assembly in the year 2017, applicant no.1 being contesting candidate of Samajwadi Party, was taking a road show comprising about 1000 persons. After perusing the record and statements of witnesses, examined during investigation, there is absolutely no such material so as to fulfil the ingredients of the offence as prescribed under Section 171-H IPC and thus, no prima facie case under Section 171-H IPC is made out.
13. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Hon'ble Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. The Hon'ble Court held 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 17 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.
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."
14. The inherent power of quashing of first information report or proceedings has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. But in exercise of the powers court would be justified to quash any proceeding if it finds that from the complaint no prima facie case is disclosed or initiation/continuance of it amounts to abuse of the process of court or quashing of the proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, 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.
15. In the instant matter, considering the allegations made in the first information report and the material collected during investigation, no prima facie case under Section 171-H IPC is made out. So far the offence under sections 188 IPC is concerned, as stated above, no complaint of public servant was filed in terms of Section 195 Cr.P.C. and the charge-sheet submitted by the police cannot be treated to be a complaint and thus, the cognizance of the offence under section 188 IPC is hit by the bar of Section 195 Cr.P.C. Thus, the instant case falls within the categories carved out by the Hon'ble Apex Court for quashing of proceedings. Therefore, no useful purpose would be served by subjecting the applicants/accused to trial.
16. In view of aforesaid, the impugned proceedings, including cognizance order and charge-sheet, of Case No. 2893 of 2018, (State Vs. Kailash Chaurasiya and Another), arising out of Case Crime No. 76 of 2017, under Sections - 171-H, 188 I.P.C., Police Station - Kotwali Shahr, District - Mirzapur, are hereby quashed.
17. The application under Section - 482 Cr.P.C. is allowed.
Order Date :- 17.12.2024 S Rawat