Allahabad High Court
Satish vs State Of U.P. And Another on 2 August, 2021
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 29.06.2021 Delivered on 02.08.2021 Court No. - 32 Case :- APPLICATION U/S 482 No. - 2369 of 2021 Applicant :- Satish Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga,Umesh Chandra Shukla Counsel for Opposite Party :- G.A. Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Amit Daga, learned counsel for the applicant and Sri Pradeep Kumar Srivastava, learned A.G.A. for State of U.P.
2. This application under Section 482 Cr.P.C. has been moved by the applicant for quashing the charge sheet dated 10.09.2020, being C.S. No.144/2020 as well as entire proceedings registered as G.S.T. No.1518 of 2020, State of U.P. Vs. Harish and 2 others, under Section 2/3 U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986, Police Station Refinery, District Mathura (arising out of Case Crime No.14 of 2020 as well as cognizance and summoning order dated 15.10.2020 passed by Additional District and Sessions Judge-05/Special Judge (Gangsters Act), Mathura.
3. Learned counsel for the applicant submitted that applicant along with two other accused persons have been named in the present First Information Report and further the U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986 (hereinafter called as "Gangsters Act") has been imposed upon them on the basis of two FIRs which being:
(i) Case Crime No.24 of 2019 under Section 376-D, 120-B IPC and Section 3 of Immoral Traffic (Prevention) Act, 1956, Police Station Refinery, District Mathura;
(ii) Case Crime No.946 of 2017 under Sections 354, 504, IPC and 7/8 Protection of Children from Sexual Offences Act, Police Station Highway, District Mathura.
4. According to learned counsel, the present applicant is not named in the first FIR registered as Case Crime No.24 of 2019 and it was on the confessional statement of the other co-accused Keshav of the present FIR that his name came and with the aid of Section 120-B IPC and Section 3 of Immoral Traffic (Prevention) Act, 1956, charge-sheet was filed in the said matter against the applicant. Further in the statement of the girl, which was recorded under Section 161 as well as 164 Cr.P.C., the name of the applicant was not there. As far as second First Information Report is concerned, it was submitted that it was lodged by the complainant, who was next door neighbour of the applicant and was having previous animosity with him. It is further submitted that in both the cases, the applicant is on bail though the charge sheet has been submitted solely on the basis of the statement recorded under Section 161 and 164 Cr.P.C. of the Informant.
5. Learned counsel has relied upon a decision of coordinate bench of this Court in Criminal Misc. Application No.3239 of 2005 under Section 482 Cr.P.C. (Tej Singh and others vs. State of U.P. and Another decided on 24.04.2019 as well as decision of Apex Court in the case of State of Haryana & Others vs. Bhajan Lal, 1992 Supp.(1) SCC 335. It was further contended that from perusal of the First Information Report, neither offence under the Gangsters Act was made out, nor the applicant along with other co-accused comes under the definition of "Gang" as given under Section 2(b) of the Gangsters Act.
6. Learned A.G.A. while vehemently opposing the application submitted that offences under Section 376-D and 354 IPC are part of Chapter XVI of IPC and definition of ''Gang' provided under section 2(b)(i) of the Gangsters Act encompasses the offences punishable under Chapter XVI of IPC. Similarly, offence under Immoral Traffic (Prevention) Act, 1956 is also included in the definition of ''Gang' under Section 2(b)(v) of the Gangsters Act. It was further contended that First Information Report and subsequent investigation reveals that applicant along with his fellow gang members Harish and Keshav are operating a gang from their guest house at Mukund Bihari Colony where they were indulging in offences like rape and immoral traffic. According to learned A.G.A. in both the cases Informants were examined by the Investigating Officer during investigation and the Informant in Case Crime No.24 of 2019 has pointed out in her statement that applicant runs business of immoral trafficking from his guest house. Further Informant of Case No.946 of 2017 has narrated his pitiable condition in his statement. Thus material on record clearly makes out a prima facie case against the applicant and the very purpose of the Gangsters Act is to safeguard the society from such anti-social element. Lastly, it is submitted that the veracity of allegations leveled in the First Information Report and statements made by the witnesses can only be tested at the anvil of examination and cross-examination which can only be conducted before the Trial Court. At the stage of charge sheet, factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. Reliance has been placed upon decisions of Supreme Court in case of Mohd. Allauddin Khan vs. State of Bihar and others (2019) 6 SCC 107, M. Jayanthi vs. K.R.Meenakshi & Anr. Criminal Appeal No.1817 of 2019 decided on 02.12.2019, Rajeev Kourav vs. Baisahab and others (2020)3 SCC 317; and State of Madhya Pradesh vs. Laxmi Narayan and others (2019) 5 SCC 688.
7. I have learned counsel for the parties and perused the material on record.
8. As this application under Section 482 Cr.P.C. has been filed seeking quashing of proceedings under the Gangsters Act, a glance of Section 2 of Gangsters Act is necessary to appreciate the case in hand, which is extracted here as under :
"2. Definitions.- In this Act,--
(a) "Code" means the Code of Criminal Procedure, 1973 (Act No. 2 of 1974);
(b) "Gang" means a group of persons, who acting either singly or collectively, by violence, or threat or show of violence, or intimidation, or coercion, or otherwise with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage for himself or any other person, indulge in antisocial activities, namely:
(i) offences punishable under Chapter XVI, or Chapter XVII, or Chapter XXII of the Indian Penal Code (Act No. 45 of 1860), or
(ii) distilling or manufacturing or storing or transporting or importing or exporting or selling or distributing any liquor, or intoxicating or dangerous drugs, or other intoxicants or narcotics or cultivating any plant, in contravention of any of the provisions of the U. P. Excise Act, 1910 (U. P. Act No. 4 of 1910), or the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No. 61 of 1985), or any other law for the time being in force, or
(iii) occupying or taking possession of immovable property otherwise than in accordance with law, or setting-up false claims for title or possession of immovable property whether in himself or any other person, or
(iv) preventing or attempting to prevent any public servant or any witness from discharging his lawful duties, or
(v) offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (Act No. 104 of 1956), or
(vi) offences punishable under Section 3 of the Public Gambling Act, 1867 (Act No. 3 of 1867), or
(vii) preventing any person from offering bids in auction lawfully conducted, or tender, lawfully invited, by or on behalf of any Government department, local body or public or private undertaking, for any lease or rights or supply of goods or work to be done, or
(viii) preventing or disturbing the smooth running by any person of his lawful business, profession, trade or employment or any other lawful activity connected therewith, or
(ix) offences punishable under Section 171-E of the Indian Penal Code (Act No. 45 of 1860), or in preventing or obstructing any public election being lawfully held, by physically preventing the voter from exercising his electoral rights, or
(x) inciting others to resort to violence to disturb communal harmony, or
(xi) creating panic, alarm or terror in public, or
(xii) terrorising or assaulting employees or owners or occupiers of public or private undertakings or factories and causing mischief in respect of their properties, or
(xiii) inducing or attempting to induce any person to go to foreign countries on false representation that any employment, trade or profession shall be provided to him in such foreign country, or
(xiv) kidnapping or abducting any person with intent to extort ransom, or
(xv) diverting or otherwise preventing any aircraft or public transport vehicle from following its scheduled course ;
(c) "gangster" means a member or leader or organiser of a gang and includes any person who abets or assists in the activities of a gang enumerated in clause (b), whether before or after the commission of such activities or harbours any person who has indulged in such activities ;
(d) "public servant" means a public servant as defined in Section 21 of the Indian Penal Code (Act No. 45 of 1860), or any other law for the time being in force, and includes any person who lawfully assist the police or other authorities of the State, in investigation or prosecution or punishment of an offence punishable under this Act, whether by giving information or evidence relating to such offence or offender or in any other manner;
(e) "member of the family of a public servant" means his parents or spouse and brother, sister, son, daughter, grandson, grand-daughter or the spouses of any of them, and includes a person dependent on or residing with the public servant and a person in whose welfare the public servant is interested ;
(f) words and phrases used but not defined in this Act and defined in the Code of Criminal Procedure, 1973, or the Indian Penal Code shall have the meanings respectively assigned to them in such Codes."
9. A careful reading of Section 2(b)(i) and (v) reveal that where an offence punishable under Chapter XVI, Chapter XVII, or Chapter XXII of Indian Penal Code or offences punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 is committed with the object of disturbing public order or of gaining any undue temporal, pecuniary, material or other advantage, such activity on the part of accused can make him liable to face imposition of Gangsters Act in question.
10. In the present case, the allegations against the applicant is that he along with two other co-accused Harish and Keshav have indulged in offences punishable under Chapter XVI as well as offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956. In the first case registered as Case Crime No.24 of 2019, the name of the applicant surfaced on the statement of the other co-accused Keshav as well as the statement of the Informant recorded on 25.07.2020 wherein the Informant had stated that the applicant was involved in immoral traffic of women and girls and was running a flesh trade at his guest house. The second First Information Report which is Case Crime No.946 of 2017, the Informant Devendra Parashar in his statement had revealed the name of the applicant and co-accused Harish, who had threatened him and his daughter and also committed illicit act with his daughter and tried to kidnap her, which resulted in the Informant and his family leaving the house and shifting to other place.
11. The object and purpose of the enforcement of Gangsters Act in the State of Uttar Pradesh in the year 1986 was to bring under control the organized criminal activities which was being carried on by the group of persons who acting either singly or collectively disturbing public order and were indulging in antisocial activities. Section 2(b)(i) enumerates the list of those antisocial activities in which the provisions of Gangsters Act is imposed upon any criminal.
12. The argument of learned counsel for the applicant that the First Information Report does not reveal commission of any offence taken at their face value and moreover the allegations are so absurd and inherently improbable that the proceedings under the Gangsters Act is not made out and in view of ratio of the Apex Court in the case of Bhajan Lal (supra) the proceedings needs to be quashed cannot be accepted, as the First Information Report clearly reveals that the applicant along with two other co-accused are indulging in immoral traffic of women and child at their guest house and two First Information Reports of the year 2017 and 2019 had already been lodged against them that the present provisions of Gangsters Act had been slapped against them.
13. In both the cases the Informants have named the applicant and the other co-accused and in Case No.24 of 2019, the Informant had specifically stated that such immoral activity was being carried out at the guest house of the applicant. The Investigating Officer after investigation and after recording the statement of the Informant/victim under Section 161 Cr.P.C. and 164 Cr.P.C. had filed the charge sheet whereby the Court below had taken cognizance and proceeded to summon the accused.
14. The moot question, which arises for consideration is whether the proceedings under the Gangsters Act can be quashed in such heinous crime against the applicant.
15. The judgment in Tej Singh and others (supra) of the coordinate Bench of this Court relied upon by the applicant is distinguishable on the facts of the present case as it was a sole case and there was cross FIRs from both sides and it was rival dispute while in the present case the applicant along with two other co-accused as per the two cases registered against them had committed act of rape and indulged in immoral trafficking of women and child from their guest house. The Court in the said case had found that such crime was not committed on the strength of forming a gang and it was a case of assault and firing between the two parties, while here the motive of the applicant and the two other co-accused is of luring girls to their guest house where illegal act is alleged to have been committed against them. Reliance upon para 102 of the decision of Apex Court in Bhajan Lal (supra) also does not support the case of the applicant as the present First Information Report clearly reveals the illegal act of the applicant and the other two co-accused as well as discloses the two First Information Reports lodged against them. The Apex Court has cleared the air as far as the power of quashing the proceedings under Section 482 Cr.P.C. is concerned. In R.P.Kapur vs. State of Punjab AIR 1960 SC 866, the Apex Court laid the parameters under which proceedings can be quashed exercising power under Section 482 Cr.P.C. Relevant part of the judgment in R.P.Kapur (supra) are extracted here as under :
"It is well established that the inherent jurisdiction of proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. It such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases 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 manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point."
16. In Bhajan Lal (supra) the Apex Court relying upon judgment of R.P.Kapur (supra), enumerated the conditions under which inherent power under Section 482 Cr.P.C. can be exercised. Relevant para 102 of the judgment in Bhajan Lal (supra) are extracted here 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 extra-ordinary 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 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 F.I.R. 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."
17. Thus, the Court while laying down the parameters had made it clear that where the allegations made in the first information report or complaint taken at their face value and accepted in entirety do not prima facie constitute any offence or make out any case against the accused, the proceedings can be quashed. Similarly in paragraph 102(5), the Court made it clear that where the allegations are so absurd and inherently improbable on the basis whereof no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, then also power under Section 482 Cr.P.C. can be exercised. In para 102(7), the Court held that where proceedings were with mala fide and /or where the proceedings 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 then also the Court can proceed to quash the same.
18. In the present case the applicant could not point out that no offence was being made out at the face value nor the allegations were absurd and inherently improbable on the basis of which no prudent person can ever reach just a conclusion that there is sufficient ground for proceeding against the accused and lastly the proceedings were manifestly attended with mala fide or were instituted maliciously with an ulterior motive for wreaking vengeance on the accused.
19. Both the first information reports i.e. Case No.24 of 2019 and 946 of 2017 reveal two different incidents, where rape was committed on victim and in the other case the girl child was molested and the applicant and co-accused tried to kidnap here. The statements of the informants recorded under Section 161 and 164 Cr.P.C. also reveal about the intentions of applicant and other co-accused. The defence being set up by the applicant that the second first information report was lodged just to harass him by his neighbour without any plausible reason cannot be accepted at this stage and his defence shall be considered in the trial. The Apex Court in Gian Singh vs. State of Punjab and Another (2012) 10 SCC 303 while dealing with inherent power of the High Court under Section 482 Cr.P.C. to quash criminal proceedings involving non-compoundable offences in view of compromise arrived at between the parties held as under :
"57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences Under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
20. In Narinder Singh and others vs. State of Punjab and Another (2014) 6 SCC 466 the Apex Court while dealing with power of the High Court under Section 482 Cr.P.C. as well as power of the Court to compound offence under Section 320 Cr.P.C. held that though the High Court has inherent power to quash criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. Relevant para 29.3 of the judgment in Narinder Singh and others (supra) is extracted here as under :
"Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender."
21. In Parbatbhai Aahir alias Parbhatbhai Bhimsinhbhai Kumar and others vs. State of Gujrat and Another (2017) 9 SCC 641 the Apex Court has laid down the parameters for quashment of first information report/complaint/criminal proceedings in exercise of inherent jurisdiction under Section 482 Cr.P.C. Relevant para 16 of the judgment in Parbatbhai Aahir alias Parbhatbhai Bhimsinhbhai Kumar and others (supra) reads as under :
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
16.2 The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
16.4 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
16.6. In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
22. In State of Madhya Pradesh Vs. Laxmi Narain and Other (2019) 5 SCC 688 the Apex Court after considering all the earlier judgments laid down the guidelines for exercising the power under Section 482 Cr.P.C. for quashing the criminal proceedings. Relevant para 15 of the judgment is extracted here as under :
"15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:
15.1. That the power conferred Under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences Under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;
15.2 Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;
15.3. Similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;
15.4. Offences Under Section 307 Indian Penal Code and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence Under Section 307 Indian Penal Code and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers Under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge Under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;
15.5. While exercising the power Under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the Accused; the conduct of the Accused, namely, whether the Accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."
23. In a recent decision of Mohd. Allauddin Khan (supra) the Supreme Court while dealing with the issue as regards appreciation of evidence in proceedings under Section 482 Cr.P.C. held that whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties, the Apex Court declined to quash the criminal proceedings.
24. In M.Jayanthi vs. K.R.Meenakshi &Anr. (supra) the Apex Court while dealing with the invoking of power under Section 482 Cr.P.C. for quashing a complaint held that the Court cannot embark upon an enquiry into the validity of the evidence available and all that the Court should see is whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. In the said case, the Court refused to quash the proceedings. Thus this Court finds that it cannot embark upon the appreciation of evidence while considering application under Section 482 Cr.P.C. for quashing criminal proceeding as it is clear from the law laid down by the Hon'ble 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 proceedings.
25. In the recent decision of Apex Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others AIR 2021 SC 1918, after considering the entire case law relating to the power to quash criminal proceedings/complaint/FIR under Section 482 Cr.P.C. has laid an exhaustive guidelines where are enumerated here as under :
"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate
xiii) The power Under Section 482 Code of Criminal Procedure is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the 438 Code of Criminal Procedure before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
26. In the present case the applicant could not point out that the allegations made in the first information report 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, or the allegations in the first information report are so absurd and inherently improbable on the basis of which no prudent person can every reach at just conclusion that there is sufficient ground for proceeding against the accused and lastly that criminal proceedings is manifestly attended with mala fide.
27. From the perusal of the first information report prima facie cognizable offence is made out against the applicant and further the two other criminal cases pending against him in which charge sheets have been filed after investigation and the Courts have taken cognizance of the matter, where there are serious allegations and charges against the applicant, no ground is made out for quashing the proceedings in view of the law laid down by the Apex Court the case of Laxmi Narayan and others (supra), Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others (supra) and M/s Neeharika Infrastructure Pvt. Ltd. (supra) as it has been the constant view of the Supreme Court since 1960 till date that the power under Section 482 Cr.P.C. should be invoked in exceptional cases where no offence is made out or the allegations in the report on face of it does not constitute any offence that such proceedings can be quashed.
28. In the present case, the applicant has tried to set up defence by alleging that he has been falsely implicated being the neighbour in one of the first information report as the informant was having animosity with him, while in the other case his name had come subsequently on the naming of the other co-accused. All these defence will be considered by the Trial Court and the defence of the applicant cannot be considered by this Court at the stage of quashing of the charge sheet.
29. In the result the application fails and the same is hereby dismissed.
Order Date :- 02.08.2021 Kushal