Allahabad High Court
Dilip Kumar Gupta & Ors. vs State Of U.P. & Anr. on 23 October, 2019
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- U/S 482/378/407 No. - 7562 of 2019 Applicant :- Dilip Kumar Gupta & Ors. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Farooqahmad Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
Heard learned counsel for the applicant, Sri Faooq Ahmad and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been moved on behalf of applicants-accused namely Dilip Kumar Gupta, Anil Kumar Gupta and Ramji Doshar @ Ramji Gupta involved in case crime no.241/2017 under Sections 376-D, 342, 506 read with Section 3/4 POCSO Act, Police Station- Sandila, District Hardoi.
Learned counsel for the applicant has sought relief on the ground or material placed before the court that charge sheet submitted by the police in the case dated 31.3.2018 as well as the impugned order of bailable warrant dated 30.9.2019 arising out of aforesaid case be quashed.
The grounds as placed before the court will be discussed, further before going into deep, it would be possible for the court, the said provisions as incorporated under Section 482 Cr.P.C. reads as under:-
"482. Saving of inherent powers of High Court. 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."
Hon'ble the Supreme Court in a catena of judgments has time to time explained the scope or powers vested in the court which is extraordinary. One of them reflected in para-23 of the Inder Mohan Goswami Vs. State of U.P. reported in 2012 SCC 1, is quoted hereunder:-
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(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."
As such on bare reading of the provisions of Section 482 Cr.P.C. as well as the guidelines as given by Hon'ble Supreme Court that the extraordinary power under Section 482 Cr.P.C. is to be used sparingly in fit cases, so as to prevent the abuse of process or to secure the ends of justice or implement/enforce order of the court.
In the light of the aforesaid provisions and the guidelines of Supreme Court which further given in State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 by illustrating several circumstances wherein powers can be exercised to quash the FIR/complaint/charge-sheet and further proceedings of the case in para 102, which reads as under:-
"102.(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 F.I.R. 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."
Looking into the facts, first of all F.I.R. as lodged by the victim of the incident in a gang rape, incident is occurred on 15.6.2017, when victim, a poor girl, source of livelihood of whom is serving as domestic help in various houses of the locality, was contacted by Arvind and Taj. They offerred to her that in a house of their friend the services which she renders as domestic help is needed and she would be paid for. The girl accompanying the aforesaid accused, when reached at the house there Naseer Ramji Gupta and Anil Kumar Gupta were present and they were drinking liquor. As she reached in the house quickly doors were locked and accused Taj caught hold her, Arvind and Dileep forcely dressed off her and made naked. Thereafter Arvind, Dilip raped her. Anil during the incident was taking photographs. Naseer threatened that photographs taken of the incident shall be made viral, if she complaints anybody else about the incident. This was stated in the statement pursuant to the F.I.R. which is made to the police, when pursuant to the FIR dated 10.8.2017 with regard to the incident dated 15.6.2017 the explanation given in the F.I.R. that under the threat given by the applicant accused, she got muted her but when menstruation was stopped on 23.7.2018, she told her mother and therefore after registering the FIR, police further got her medical check up. Her radiological age is found to be 17 years and on internal examination of private parts in the vagina and other substances spermatozoa were found, pregnancy test was also found positive.
On the above facts coming out of F.I.R. and the investigation, police prepared the charge sheet and submitted before the Court. Prima facie the allegations on their face value if taken in their entirety, disclosing the commission of offence, the accused are slapped with.
Learned counsel for the relief of quashing the charge sheet and cognizance argued defences which are with regard to delay in lodging FIR. Further he argued that the present applicant accused nos.1, 2 and 3 are not named. Secondly, emphasizing on the role of applicant no.3, he submits that the said applicants accused is a political person and since he declared his candidature for election of Nagar Palika Parishad got flared advertisement and posters. The rival group taking undue advantage used the girl for character assassination so that his candidature may be declined. Thirdly, the victim herself as well as her parent given affidavit before the investigating officer that in a dispute between someone else since the applicant no.3 and other companions were holding the opponent or informant, therefore, in the vengeance they lodged the FIR of gang rape falsely. Lastly, learned counsel for the accused applicants emphasizing on an order of Division Bench the arrest of the applicant was stayed therein. The order of Division Bench as passed is being quoted hereunder:-
"Heard Sri Farooq Ahmad, learned counsel for the petitioners, Sri S.P. Singh, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioner with a prayer to quash the F.I.R. dated 10.8.2017 registered as case crime no. 241 of 2017, under sections 376, 342, 506 I.P.C. read with Section 3/4 POCSO Act, police station Sandila, district Hardoi.
Learned counsel for the petitioners submits that the impugned F.I.R. has been challenged by co-accused Arvind and Taj before this Court in Crl. Misc. Writ Petition No. 19217 of 2017 in which interim protection was granted to them vide order dated 22.8.2017, hence the petitioners are also entitled for the same relief.
Copy of the aforesaid order has been annexed at page no. 20 of the writ petition.
Learned A.G.A. opposed the prayer for quashing but could not dispute the aforesaid fact as argued by learned counsel for the petitioners.
Considering the submissions advanced by learned counsel for the parties and nature of the allegations, it is directed that the petitioners shall not be arrested in above mentioned case, till the submission of the police report under section 173(2) Cr.P.C. but he shall co-operate with the investigation of the case.
With the above direction this petition is finally disposed of."
Hon'ble Apex court in the case of Mahesh Chaudhary Vs. State of Rajasthan & Anr. reported in (2009) 4 SCC 439 in its para nos.11, 12, 14 and 16 has held as under:-
"11. The principle providing for exercise of the power by a High Court under Section 482 of the Code of Criminal Procedure to quash a criminal proceeding is well known. The court shall ordinarily exercise the said jurisdiction, inter alia, in the event the allegations contained in the FIR or the Complaint Petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence.
12. It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused.
14. While saying so, we are not unmindful of the limitations of the court's power under Section 482 of the Code of Criminal Procedure which is primarily for one either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The court at that stage would not embark upon appreciation of evidence. The Court shall moreover consider the materials on record as a whole. In Kamaladevi Agarwal vs. State of W.B. & ors. [(2002) 1 SCC 555], this Court opined:
"7. This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken it at the face value and accepted in entirety, do not prima facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction."
It was furthermore observed that the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud there would always be some element of civil nature.
16. Recently in R. Kalyani vs. Janak C. Mehta & ors. [2008 (14) SCALE 85], this Court laid down the law in the following terms:
"15. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.
16. It is furthermore well known that no hard and fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by the Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of the paramount duties of the Superior Courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint."
Further, the plea of applicant accused not named in the F.I.R. is also not tenable because once an F.I.R. is registered the investigating agency comes into movement and during the course of investigation, if any fact comes to his knowledge, he brings it on record. In the present case where allegations as to the gang rape, the accused applicant Dilip and Taj who taken her to the house where the incident took place, their role has consistently came into statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C. Victim is the best person to identify the offenders who commit the gang rape, therefore, her statement cannot be denied by the investigating officer and the same took place in the charge-sheet. Thirdly, so far as the arresting the stay of applicants accused is concerned in the present case it was upto filing of charge sheet only as appears on perusal of the order of the Division Bench in the matter in Misc. Bench No.19993/2017 (Dilip Kumar Gupta and Others Vs. State of U.P. and Others) quoted above, the Court has observed that "this petition has been filed by the petitioner with a prayer to quash the FIR dated 10.9.2017 registered as Case Crime No.241 of 2017 under Section 376, 342, 504 IPC read with Section 3/4 POCSO Act, Police Station Sandila, District Hardoi."
On perusal of the order in totality it is obvious therefrom that court has not allowed the relief of quashing of the said FIR, Court has not given its implementation in law becomes that what is sought, implication in law is that what is sought in the petition but not given stands virtually denied. Once, the relief of quashing the FIR is denied and the arrest is stayed only till filing of charge sheet under Section 482 Cr.P.C. the scope is not open to quash the charge sheet and summoning order pursuant to the FIR which was not set aside. Specially when the allegations made therein are not such that the prosecution story became improbable.
Elaborating the aforesaid points, it would be pertinent to mention here that charge-sheet is a accumulation of facts and materials collected in the investigation on the allegation of first information report and the Investigating Officer on his prima facie satisfaction as to the facts and materials collected by him that there is a reason to belief that the accused-applicant might have committed offence submitted before the Court having power to take cognizance of such offence, so that the same may be tried on the basis of evidence and procedure of law in the Court cannot be quashed without proper trial.
So far as the cognizance is concerned. This is also the satisfaction of the Court concerned that the allegation made in FIR and the charge-sheet submitted by the Court after collecting evidence whether fulfill the ingredients of the offence from which the accused-applicants are slapped and there is reason to believe that such offences might have been committed, therefore, a trial is needed. The moment he considers there is a reason to believe is said to be 'taking cognizance' otherwise the word 'Cognizance' is not defined anywhere in the Court. The taking of cognizance is a complete discretion of the Court for trial and issuing summons is affording an opportunity to the accused to putforth his defence for innocence before the court.
Learned counsel informs that by passing impugned ordersummons are issued to appear and now bailable warrant is running. The accused-applicants despite the fact of knowledge of the issuance of summons that bailable warrant is running against them defying the process instead of going before the Court, directly moved to the High Court for quashing of the charge-sheet and summoning order.
On the basis of above discussions, there is no prima facie case of abuse of process on the part of complainant or there is no necessity to pass any such order to secure the ends of justice, rather on the facts and materials placed before the Court it appears that there is a legitimate prosecution running against the accused-applicant and in para 27 of the Inder Mohan Goswami (Supra) Hon'ble Apex court has held as under:-
"The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires 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 should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage"
In view of the above facts and observation, I find no force in the matter of the accused-applicants to quash the charge-sheet against them and summoning order, accordingly dismissed.
Order Date :- 23.10.2019 Gaurav/-