Allahabad High Court
Lalit Parashar vs State Of U.P. And Another on 16 April, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:66818 Court No. - 87 Case :- APPLICATION U/S 482 No. - 6846 of 2024 Applicant :- Lalit Parashar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Adarsh Srivastava,Reena Pal Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Adarsh Srivastava, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State and perused the record.
3. The present application under Section 482 Cr.P.C. has been filed by the applicant Lalit Parashar with the following prayers:
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present application to quash the Cognizance Order dated 10.06.2020 along with the entire proceedings arising out of Case Crime No. 1101 of 2019 in (Case No. 756 of 2020) pending before the Additional Chief Judicial Magistrate, Gautam Budh Nagar, under sections 376, 507, 504 and 509 of I.P.C., and under section 67 of I.T. Act, Police Station- Kasna, District- Gautam Budh Nagar.
It is further prayed that this Hon'ble Court may graciously be pleased to stay the entire proceedings arising out of Case Crime No. 1101 of 2019 in (Case No. 756 of 2020) pending before the Additional Chief Judicial Magistrate, Gautam Budh Nagar, under sections 376, 507, 504 and 509 of I.P.C., and under section 67 of I.T. Act, Police Station- Kasna, District- Gautam Budh Nagar.
And/or, pass such other and further orders which this Hon'ble Cour may deem fit and proper in the circumstances of the case."
4. The facts of the case are that an FIR was lodged on 20.11.2019 by the opposite party no.2 under Sections 376, 507, 504, 509 IPC and Section 67 of I.T. Act against the applicant and two other unknown persons. The matter went up for investigation in which the statement of the first informant/victim/prosecutrix was recorded under Section 161 Cr.P.C. on 13.12.2019 and statement under Section 164 Cr.P.C. recorded on 14.01.2020. The investigation concluded and a charge sheet dated 15.05.2020 was filed against the applicant Lalit Parashar under Sections 376, 507, 504, 509 IPC and Section 67 of I.T. Act.
5. The trial court took cognizance upon the same vide its order dated 10.06.2020. The applicant Lalit Parashar filed an application No. 5-Ka for discharge which was rejected vide order dated 28.09.2021 passed by the Additional Sessions Judge, Court No.5, Gautam Budh Nagar. The charges were framed against the applicant under Sections 376, 506, 507, 509 IPC and Section 67 of I.T. Act and the trial started as Session Trial No. 334 of 2021 (State Vs. Lalit Parashar and another), Police Station Beeta-2, District Gautam Budh Nagar. In the trial, the statement of the first informant/victim/prosecutrix was recorded as PW-1.
6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the order taking cognizance is an illegal order which deserves to be set aside. It is submitted that the FIR has been lodged after an unexplained delay of about five months since the alleged incident is stated to be of 15.06.2019 of which the FIR was lodged on 20.11.2019. It is submitted that the investigation in the matter is cryptic, inasmuch as, the Investigating Officer has not filed the CDR report with the charge sheet. It is submitted that the applicant has a civil dispute with the opposite party no.2 and her father and mother. He submitted that a complaint was filed with regards to two cheques which was dishonoured when presented by the applicant due to signature not matching. The present FIR has been filed just as a counterblast.
7. Per contra, learned counsel for the State opposed the prayer for quashing.
8. After having heard learned counsel for the parties and perusing the records, it is evident that the applicant is facing trial in a case under Sections 376, 506, 507, 509 IPC and Section 67 of I.T. Act. The trial in the matter is going on in which the statement of the first informant/victim/prosecutrix has been recorded as PW-1 before the trial court. In so far as the mala-fides is concerned, the same cannot be looked at the stage for quashing in view of the judgments of the Apex Court in the case of Central Bureau of Investigation Vs. Aryan Singh etc. : AIR 2023 SC 1987 and State of M.P. v. Awadh Kishore Gupta : (2004) 1 SCC 691.
9. Further, in so far as the challenge to the order taking cognizance is concerned, the same at this stage cannot be looked into since subsequently the discharge application was rejected and charges have been framed and then the trial has started. There was no challenge to the order rejecting the discharge application of the applicant and the order framing charge. The trial has started in which the statement of PW-1 who is the first informant/victim/prosecutrix has been recorded. Now at this stage the present petition has been filed for quashing of the proceedings also.
10. The Apex Court in the case of Ratilal Bhanji Mithani Vs. State of Maharashtra and others : (1979) 2 SCC 179 has held that after framing of charge there cannot be a discharge but only an acquittal can be done on a finding of not guilty turning on the merits of the case. It has been held as follows :-
"24. At the outset, let us have a look at the relevant provisions of the Code of Criminal Procedure, 1898, which admittedly governed the pending proceedings in this case. The procedure for trial of warrant cases by Magistrates is given in Chapter XXI of that Code. The present case was instituted on a criminal complaint. Section 252 provides that in such a case, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence, as may be produced, in support of the prosecution. Sub-section (2) of that Section casts a duty on the Magistrate to ascertain the names of persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and to summon all such persons for evidence. Section 253 indicates when and in what circumstances an accused may be discharged: It says:
"253. (1) If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
Section 254 indicates when and in what circumstances a charge should be framed. It reads:
"254. If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused."
Section 255 enjoins that the charge shall then be read over and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record that plea, and may convict him thereon.
25. Section 256 provides that if the accused refuses to plead or does not plead, or claims to be tried, he shall be required to state at the next hearing whether he wishes to cross-examine any of the witnesses for the prosecution whose evidence has been taken, and if he says he so wants to cross-examine, the witnesses named by him shall be recalled and he will be allowed to further cross-examine them. "The evidence of any remaining witnesses for the prosecution shall next be taken" and thereafter the accused shall be called upon to enter upon and produce his defence.
26. Section 257 is not material. Section 258(1) provides that if in any case in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. Sub-section (2) requires, where in any case under this chapter the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence on him in accordance with law.
27. From the scheme of the provisions noticed above it is clear that in a warrant case instituted otherwise than on a police report, "discharge" or "acquittal" of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of "discharge" and "acquittal" are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal. If a prima facie case is made out the Magistrate must proceed under Section 254 and frame charge against the accused. Section 254 shows that a charge can be framed if after taking evidence or at any previous stage, the Magistrate, thinks that there is ground for presuming that the accused has committed an offence triable as a warrant case.
28. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).
29. Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a "finding of not guilty" turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.
30. If after framing charges the Magistrate whimsically, without appraising the evidence and without permitting the prosecution to produce all its evidence, "discharges" the accused, such an acquittal, without trial, even if clothed as "discharge", will be illegal. This is precisely what has happened in the instant case. Here, the Magistrate, by his order dated December 12, 1962, framed charges against Mithani and two others. Subsequently, when on the disposal of the revision applications by Gokhale, J., the records were received back he arbitrarily deleted those charges and discharged the accused, without examining the "remaining witnesses" of the prosecution which he had in the order of framing charges, said, "will be examined after the charge"."
(emphasis supplied)
11. The situation is the same in the present case. After taking cognizance on the chargesheet, framing of charges, the accused not pleading guilty and claiming to be tried, the trial started and one witness has been examined, the applicant who is facing trial comes up challenging the cognizance/summoning order dated 10.06.2020 as well as entire proceedings of the trial court at such a belated stage.
12. 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; State of Bihar Vs. P. P. Sharma : 1992 Supp (1) SCC 222; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Zandu Pharmaceuticals Works Ltd. Vs. Mohammd Shariful Haque : (2005) 1 SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava : (2009) 9 SCC 682; 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; Md. Allauddin Khan Vs. State of Bihar : (2019) 6 SCC 107; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706; Rajeev Kourav Vs. Balasaheb & others : (2020) 3 SCC 317; Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467, 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.
13. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 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 entirety 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.
24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.
25. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this 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 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."
26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.
27. It has been further elucidated recently by this 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.
28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception."
14. In the case of Ramveer Upadhyay Vs. State of U.P. : 2022 SCC Online SC 484 the Apex Court has held in paragraph nos. 27, 38 and 39 that quashing of a criminal case by exercising jurisdiction under Section 482 Cr.P.C. should be done in exceptional cases only. Paragraphs 27, 38 and 39 are quoted herein:
"27. Even though, the inherent power of the High Court under Section 482 of the Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C is not to be exercised for the asking.
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38. Ends of justice would be better served if valuable time of the Court is spent on hearing appeals rather than entertaining petitions under Section 482 at an interlocutory stage which might ultimately result in miscarriage of justice as held in Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474.
39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C."
15. Further in the case of Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 in para 49 the Apex Court has held as under:
"49. In exercise of power under section 482 of the Cr.P.C., 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence."
16. In view of the discussion as above, the law on the issue, the prima facie material available against the applicant and also the stage of the case, this Court does not find it to be a fit case for interference, the present application under Section 482 Cr.P.C. is thus dismissed.
Order Date :- 16.04.2024 M. ARIF (Samit Gopal, J.)