Allahabad High Court
Heera Lal And Another vs State Of Up And Another on 3 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:79578 AFR Reserved on 19.04.2024 Delivered on -03.05.2024 Court No. - 89 Case :- APPLICATION U/S 482 No. - 2700 of 2024 Applicant :- Heera Lal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Imran Ullah,Vineet Vikram Counsel for Opposite Party :- G.A.,Rishikesh Tripathi Hon'ble Mayank Kumar Jain,J.
1. Heard learned counsel for the applicants, learned Additional Government Advocate for the State.
2. Present application under Section 482 Cr.P.C. has been filed to set aside the impugned order dated 21.7.2023 in Special Criminal Case No. 108 of 2022 passed by the Additional District and Sessions Judge/Special Judge (Dacoit Affected Area), Banda, whereby the applicants have been summoned to face trial under Section 392, 323, 504 and 506 I.P.C. It is also prayed to stay further proceeding of the aforesaid case during pendency of present application.
3. The case of the complainant as set out in this complaint is that:-
3.1. That the marriage of the first informant was solemnized in 2005 with the daughter of applicant no. 1. Out of this wedlock, one son namely Harshit was born. The son is residing with the applicants after the death of his mother.
3.2. The first informant is working as a professor/doctor in Government Hospital, Banda.
3.3. The applicants are keeping Harshit with them without any authority and have fetched thousands of rupees from the first informant.
3.4. On 9.3.2022, at around 3:40 P.M., applicant no. 1 armed with a rifle, applicant no. 2 carrying a hockey stick along with 3-4 unknown persons possessing lathi, danda in their hands, arrived at the house of opposite party no. 2.
3.5. Applicant no. 1 made a demand of Rs. 10 lacs for the education and welfare of Harshit.
3.6. When opposite party No. 2 expressed inability to give such money, applicant no.1 became furious. He exhorted other persons to kill him. The complainant was badly beaten up by all persons with kicks, fists, lathi danda and butt of the rifle.
3.7. Applicant No. 2 snatched gold chain worth Rs. 1,00,000/- and applicant no. 1 took Rs. 50,000/- cash from the drawer. When opposite party No. 2 raised alarm, witnesses Hub Lal and Asha came there. When they challenged the applicants, the applicants ran away threatening the complainant with life.
4. The application under Section 156(3) Cr.P.C. was treated as complaint. The statement of complainant was recorded under Section 200 Cr.P.C. The statements of the witnesses such as PW-1 Hub Lal and PW-2 Pavitri Devi were recorded under Section 202 Cr.P.C.
5. The learned Special Judge (DAA), Banda, vide summoning order dated 21.07.2023 summoned the applicants to face trial under Sections 392, 323, 504, and 506 I.P.C.
6. Mr. Imran Ullah, learned counsel for the applicants submitted that applicant no. 1 is a senior citizen aged 87 years. He is a retired Judicial Officer. He retired as Additional District and Sessions Judge in 2004. Opposite party no. 2 is son-in-law of applicant no. 1. Applicant no. 2 is son of applicant no. 1.
7. It is submitted by learned counsel that the applicants are residing in District Kanpur Nagar. It is not possible for applicant no. 1, who is 78 years old to travel up to Banda to commit such incident. He is bracketed an accused by his son-in-law. Opposite party no. 2 instituted proceedings against applicant no.1 to obtain custody of Harshit. The same proceedings are still pending. The interim application of the first informant had been dismissed.
8. It is vehementally argued by the learned counsel for the applicants that date of occurrence, as alleged in the complaint, is 09.03.2022. whereas, the medical examination was allegedly conducted on 12.03.2022. Opposite party No. 2 was posted in the same district hospital at Banda. Therefore, it is highly improbable that one person who is a doctor in the same hospital is not examined at the first opportunity. It is also submitted that application to S.S.P. was given on 16.04.2022, i.e. one month after the date of alleged incident. The complaint has been filed after two and half month from the date of occurrence. These facts demonstrate that the entire proceedings have been initiated as a counter blast on the basis of concocted facts and forged medical report.
9. It is further submitted that the applicant had no reason to go to Banda to demand money for the welfare and education of Harshit. Harshit is happily residing with applicants. The applicant No.1 is suffering with skin disease Leukoderma, and his medical prescriptions are brought on record which indicate that he is continuously on medicine. Due to old age complications, he is unable to walk without any support/assistance.
10. It is also submitted that opposite party no. 2 has performed second marriage after the demise of the daughter of applicant no. 1. Opposite party no. 2 had moved an application for temporary custody of Harshit for 20 days during his summer vacation. The said application was rejected by the Court.
11. It is further submitted that complaint has also been filed against three unknown persons and allegation of maar-peet committed by them is also made. During his statement under Section 200 Cr.P.C., opposite party no. 2 stated that he fell down on floor and sustained injuries. It is submitted that medical examination was conducted after three days of the alleged occurrence and no plausible explanation is offered by the complainant for such inordinate delay. No application to any Superior Authority was given immediately after the alleged incident. He did not make any call to 112 Police Help Line. Names of the unknown persons were not disclosed in primary evidence. The entire story narrated in the complaint is fabricated, unbelievable, and concocted.
12. It is vehemently argued that witness Pavitri Devi is not named as witness in the complaint while the named witness Asha is not produced by the applicant to support the version of the complaint. It is submitted that on the basis of the allegation and evidence available on record, no offence under Sections 392, 323, 504, and 506 I.P.C. is made out against the applicants.
13. Per contra, learned counsel for opposite party no. 2 vehemently opposed the prayer made by learned counsel for the applicant. He submitted that since opposite party no. 2 sustained six injuries, including fracture in his wrist, therefore the incident cannot be considered to be false. When the complainant refused to meet the demands of the applicants, they beat him up with lathi danda and butt of the rifle. Upon exortation by applicant no.1, applicant no. 2 snatched gold chain from the first informant and applicant no. 1 took Rs. 50,000 from the drawer. Therefore, prima facie, offence under Sections 392, 504, 506 I.P.C. is made out.
14. It is further submitted that all the arguments advanced by the learned counsel for the applicants are to be examined at the time of trial. It is also submitted that proceedings pending about the custody of the child in Kanpur District Court are civil proceedings, therefore, it cannot be said that opposite party no. 2 instituted the present proceedings as a counter blast.
15. Perused the record.
16. The Hon'ble Supreme Court in Pramod Suryabhan Pawar VS State of Maharashtra and another, (2019) 9 SCC 608 has considered the principles, scope, and ambit of the powers of the Court under Section 482 Cr.P.C. and held that:
"6. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and reiterated by this Court. In Inder Mohan Goswami v. State of Uttaranchal [Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , this Court observed : (SCC p. 10, paras 23-24):
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers 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 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
7. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] noted that quashing may be appropriate where: (SCC pp. 378-79, para 102) "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 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).
*** (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."
8. In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v. State of Maharashtra [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : 2018 SCC OnLine SC 3100], (Dhruvaram Sonar) : (SCC para 13) "13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."
17. In the case of Mohammad Wajid and Another Vs. State of U.P. and Others, reported in 2023 SCC OnLine SC 951, the Hon'ble Apex Court observes that:-
"34. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation......"
35. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:--
"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these 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."
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....."
18. Perusal of record goes to show that the complaint was filed against the applicants alongwith 3 unknown persons. It has been alleged that the applicants along with 3 unknown persons had beaten up opposite party no. 2 with lathi danda and butt of the rifle. Participation of unknown persons is not substantiated during the statements adduced as primary evidence. Besides this, their names and identification was also not disclosed by the complainant and his witnesses. Therefore, it appears to be unbelievable that all the injuries, sustained by opposite party no. 2, were caused by applicant no. 2 only.
19. Section 390 I.P.C. provides thus:
390. Robbery.--
"In all robbery there is either theft or extortion.When theft is robbery.-- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.When extortion is robbery.-- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted."
20. In the case of Mohammad Wajid and Another Vs. State of U.P. and Others (supra), the Hon'ble Apex Court observes that:
"15. Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc., had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in Section 390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft.
16. The three ingredients mentioned in Section 390, IPC, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, AIR 1941 Oudh 476, in the following words:--
"The words "for that end" in sec. 390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances."
17. In Karuppa Gounden v. Emperor, AIR 1918 Mad 821, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, (1900-01) 5 CWN 372, and King Emperor v. Mathura Thakur, (1901-02) 6 CWN 72, it has been observed at page 824 as follows:--
"Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The Public Prosecutor has been forced to argue that "for that end" must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly, words 'in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v. Kafiluddi Manjhi (1900-01) 5 CWN 372. Their Lordships put the question in this way:
"It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time."
18. Ordinarily, if violence or hurt is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of the theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But there may be something in the evidence to indicate that hurt or violence was caused not for this purpose but for a different purpose......"
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28. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised selfcontrol or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
29. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:--
"To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds."
30. A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant."
21. Admittedly, opposite party no. 2 is the son-in-law of applicant no. 1. The daughter of applicant no. 1 has passed away. The grandson of applicant no. 1 is residing with him after her death. Opposite party no. 2 has instituted civil proceedings in Kanpur Nagar to obtain custody of his son. The application for granting temporary custody of Harshit has already been dismissed by the concerned Court. The first informant did not disclose these facts in his complaint.
22. Pertinent to mention here that the first informant name Asha as one of the witnesses in his complaint. She was not produced under Section 202 Cr.P.C. as witness. PW-2 Pavitri Devi, instead, was produced as witness. This fact creates suspicion about the incident.
23. It is worthy to note that applicant no. 1 is aged 87 years old. He is suffering with "Leukoderma", a skin disease. Besides this, several documents relating to his treatment are brought on record. Considering the age and health condition of applicant no. 1, it seems unbelievable that he could travel from Kanpur Nagar to Banda along with his rifle and to commit alleged incident.
24. It is also taken into consideration that opposite party No. 2 was working as Assistant Professor/Doctor at District Hospital, Banda in which he was medically examined on 12.3.2022. The date of occurrence is mentioned in the complaint filed by opposite party no. 2 as 9.3.2022. It is highly improbable that a doctor who is posted in the same hospital, was examined after three days of the incident. Moreover, opposite party no. 2 did not immediately seek police assistance by making a call to police help line number 112. The complainant moved an application to S.P Hamirpur through registered post on 16.04.2022 i.e. after around five weeks of the incident. The complaint is filed by him on 28.5.2022 i.e. around two and half month after the alleged incident. Opposite party no. 2 did not offer any plausible explanation for such inordinate delay.
25. On the basis of the facts and circumstances of the case, the present case is squarely covered under clause (7) of the judgement Bhajan Lal vs. State of Haryana (supra). In view of the foregoing discussion, the Court is of the view that present proceedings are manifested with malafide and are instituted with an ulterior motive due to private and personal grudge. Therefore, the application deserved to be allowed.
26. Accordingly, the present application U/s 482 is allowed.
27. The entire proceedings against the applicants in aforesaid case is hereby quashed.
Order Date :- 03.05.2024 Sushma (Mayank Kumar Jain,J.)