Allahabad High Court
Om Prakash Yadav vs State Of U.P. And Another on 26 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- APPLICATION U/S 482 No. - 14971 of 2023 Applicant :- Om Prakash Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinay Dubey,Vishnu Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Shiv Shanker Prasad,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the records.
2. This application under Section 482 Cr.P.C. has been filed for quashing of the impugned summoning order dated 25.08.2022 as well as entire proceedings of Complaint Case No. 1315 of 2022 (Uday Singh Vs. Om Prakash Yadav), under Sections 504, 506 I.P.C., Police Station Civil Lines, District Prayagraj, pending in the court of learned Judicial Magistrte-4, Allahabad.
3. On the request of learned counsel for the applicant Court proceeded to hear the matter. The case is being decided finally without issuing notice to the opposite party no.2. If opposite party no.2 feels aggrieved with this order, it will be open to him to file recall application.
4. Heard learned counsel for the applicant as well as the learned AGA and perused the record.
5. Brief facts of the case are that on 05.04.2022 at about 9:00 P.M., there was a short circuit in the government residence allotted to the brother of the complainant and the complainant lodged a telephonic complaint related to the powerhouse of railway department, on which two unknown employees came and started abusing and beating. This incident was telephonically told to the applicant and he called him at powerhouse, where four to five persons were present and the complainant could understand they started beating him and snatched gold chain out of his neck. The complainant lodged the F.I.R. as Case Crime No. 150 of 2022 at Police Station Civil Lines, Allahabad. Due to the lodgement of the aforesaid case the applicant became angry with the complainant and started having enmity. The applicant telephoned the complainant on his mobilephone for five times asking him to withdraw the case and threatened to kill him if the case was not withdrawn.
6. Learned counsel for the applicant invited the attention of the Court to the summoning order dated 25.08.2022. He submits that the order impugned in the present application is wholly arbitrary and therefore liable to be set aside by this Court. Elaborating his submission, learned counsel for the applicant submits that the Court below has simply recorded a conclusion that on the basis of the complaint, the statement of the complainant and her witnesses, prima facie an offence under sections 504 and 506 IPC appears to have been committed. The said conclusion recorded by the Court below is not preceded by a discussion of the allegations made in the complaint or the statement of the complainant and his witnesses as recorded under sections 200 and 202 Cr. P. C. He, therefore, submits that in absence of any finding recorded by the Court below, on the basis of the averments made in the complaint, the statement of the complainant and that of the witnesses, no prima facie satisfaction was recorded by the Court below for summoning the applicant under sections 504 and 506 IPC.
7. Per contra, learned A.G.A. has submitted that from the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. He also submits that it is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by the Apex Court as well as by this Court in catena of judgments that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding. On the cumulative strength of the aforesaid, learned A.G.A. urges that the alleged offence is made out against the applicants. The present application under Section 482 Cr.P.C. is devoid of merit and the same is liable to be dismissed by this Court.
8. I have considered the submissions advanced on behalf of the parties and gone through the records of this application. This Court finds that all the contentions advanced on behalf of the applicant raise disputed question of facts, which can be more appropriately examined during trial.
9. The Apex Court in its another judgment in the case of Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors. reported in 2020 0 Supreme (SC) 45, dealing with a case under Sections 406 and 420 I.P.C. has observed that the Court does not have to delve deep into probative value of evidence regarding the charge. It has only to see if a prima facie case has been made out. Veracity of deposition/material is a matter of trial and not required to be examined while framing charge. The Apex Court further observed that the veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The Apex Court in paragraph nos. 21, 22 and 24 has observed as follows:
"21 The appellant has relied upon a two-judge Bench decision of this Court in Onkar Nath Mishra v The State, (2008) 2 SCC 561 to substantiate the point that the ingredients of Sections 406 and 420 of the IPC have not been established. This Court while dealing with the nature of evaluation by a court at the stage of framing of charge, held thus:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
(Emphasis supplied) 22 In the present case, the High Court while directing the framing the additional charges has evaluated the material and evidence brought on record after investigation and held:
"LW1 is the father of the de facto complainant, who states that his son in law i.e., the first accused promised that he would look after his daughter at United Kingdom (UK) and promised to provide Doctor job at UK and claimed Rs.5 lakhs for the said purpose and received the same and he took his daughter to the UK. He states that his son-in-law made him believe and received Rs.5 lakhs in the presence of elders. He states that he could not mention about the cheating done by his son-in- law, when he was examined earlier. LW13, who is an independent witness, also supports the version of LW1 and states that Rs.5 lakhs were received by A1 with a promise that he would secure doctor job to the complainant's daughter. He states that A1 cheated LW1, stating that he would provide job and received Rs.5 lakhs. LW14, also is an independent witness and he supported the version of LW13. He further states that A1 left his wife and child in India and went away after receiving Rs.5 lakhs.
Hence, from the above facts, stated by LWs. 13 and 14, prima facie, the version of LW1 that he gave Rs.5 lakhs to A1 on a promise that he would provide a job to his daughter and that A1 did not provide any job and cheated him, receives support from LWs. 13 and 14. When the amount is entrusted to A1, with a promise to provide a job and when he fails to provide the job and does not return the amount, it can be made out that A1 did not have any intention to provide job to his wife and that he utilised the amount for a purpose other than the purpose for which he collected the amount from LW1, which would suffice to attract the offences under Sections 406 and 420 IPC. Whether there is truth in the improved version of LW.1 and what have been the reasons for his lapse in not stating the same in his earlier statement, can be adjudicated at the time of trial.
It is also evidence from the record that the additional charge sheet filed by the investigating officer, missed the attention of the lower court due to which the additional charges could not be framed."
(Emphasis supplied) 24 The veracity of the depositions made by the witnesses is a question of trial and need not be determined at the time of framing of charge. Appreciation of evidence on merit is to be done by the court only after the charges have been framed and the trial has commenced. However, for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial. The High Court has relied upon the materials on record and concluded that the ingredients of the offences under Sections 406 and 420 of the IPC are attracted. The High Court has spelt out the reasons that have necessitated the addition of the charge and hence, the impugned order does not warrant any interference."
(Emphasis added)
9. Again in the case of Rajeev Kaurav Vs. Balasahab & Others reported in 2020 0 Supreme (SC) 143, the Apex Court has held that it is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any law or Court or otherwise to secure the ends of justice.
10. In the latest judgment of the Hon'ble Supreme Court in the case of State of U.P. Vs. Akhil Sharda & Others reported in 2022 SCC OnLine SC 820 has held that while deciding the application under Section 482 Cr.P.C., the High Court has conducted mini trial which is not permissible at that stage. The relevant portion whereof reads as follows:
"28. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in exercise of powers under Section 482 Cr.P.C., it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr.P.C. As observed and held by this Court in a catena of decisions no mini trial can be conducted by the High Court in exercise of powers under Section 482 Cr.P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr.P.C., the High Court cannot get into appreciation of evidence of the particular case being considered. (See Pratima (supra); Thom (supra); Rajiv (supra) and Niharika (supra).
29. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the manner in which the High Court has allowed the petition under Section 482 Cr.P.C., we are of the opinion that the impugned judgment and order passed by the High Court quashing the criminal proceedings is unsustainable. The High Court has exceeded in its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.
30. It is also required to be noted that even the High Court itself has opined that the allegations are very serious and it requires further investigation and that is why the High Court has directed to conduct the investigation by CBCID with respect to the FIR No.227 of 2019. However, while directing the CBCID to conduct further investigation, the High Court has restricted the scope of investigation. The High Court has not appreciated and considered the fact that both the FIRs namely FIR Nos.260 of 2018 and 227 of 2019 can be said to be interconnected and the allegations of a larger conspiracy are required to be investigated. It is alleged that the overall allegations are disappearance of the trucks transporting the beer/contraband goods which are subject to the rules and regulations of the Excise Department and Excise Law.
31 The High Court has quashed the criminal proceedings by observing that there was no loss to the Excise Department. However, the High Court has not at all appreciated the allegations of the larger conspiracy. The FIR need not be an encyclopedia ( See Satpal Vs. Haryana, (2018) 6 SCC 110 Para 7).
32 Even otherwise, it is required to be noted that the allegation of missing of two trucks was the beginning of the investigation and when during the investigation it was alleged that earlier also a number of trucks were missing transporting contraband goods, the FIR should not have been restricted to missing of the two trucks only and return of on the goods thereafter. The High Court has not at all appreciated and/or considered the allegation of the larger conspiracy and that both the FIRs/criminal cases are interconnected and part of the main conspiracy which is very serious if found to be true. We however refrain from making any further observations as at this stage of proceedings as we are at the stage of deciding the application under Section 482 Cr.P.C. only and as the trial of both the cases have yet to take place. Therefore, we refrain from making any further observations which may affect the case of the either of the parties. Suffice it to say and mention that in the facts and circumstances of the case the High Court has committed a grave/serious error in quashing and setting aside the criminal proceedings arising out of Criminal Case No.5694 of 2019 and Case Crime No.260 of 2018 PS lodged under Section 406, registered at PS - Husainganj, District - Lucknow.
(Emphasis supplied)
11. It is clear from the law laid down by the Apex Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.
12. From the discussions and deliberations held above, this Court is of the view that the submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint and the material/evidence adduced by the complainant under Sections 200 Cr.P.C. and 202 Cr.P.C. on the basis of which a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the summoning order or the proceedings of the complaint case against the applicant arising out of him as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
13. The prayer for quashing the impugned summoning order as well as the proceedings of the complaint case are refused as I do not see any abuse of the court's process at this pre-trial stage.
14. This application under Section 482 Cr.P.C. devoid of merits and is accordingly rejected.
Order Date :- 26.4.2023 Abhishek Singh