Allahabad High Court
Vinay Kumar Pandey @ Bulli And 2 Others vs State Of U.P. And Another on 1 March, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 69 Case :- APPLICATION U/S 482 No. - 7626 of 2023 Applicant :- Vinay Kumar Pandey @ Bulli And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.S. Rajput Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri S.S. Rajput, learned counsel for the applicants, Sri Raj Kumar Gupta, learned counsel for the State and perused the material brought on record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicants- Vinay Kumar Pandey @ Bulli, Ashutosh Kumar Pandey and Jagat Narayan Pandey @ Yagya Narayan with the prayer to allow this application and quash the complaint dated 04.05.2022 being Complaint Case No. 372 of 2022, (Nirmala Devi vs. Vinay Kumar Pandey and two others) and to set aside the order dated 05.01.2023 passed by Additional Chief Judicial Magistrate, Court No.5, Allahabad summoned the applicant nos.1 and 2 Vinay Kumar Pandey @ Bulli, Ashutosh Kumar Pandey, under Sections 376-D, 323, 504, 506 I.P.C. and summoned applicant no.3 Jagat Narayan Pandey under Section 109 I.P.C. with a further prayer that proceedings of the aforesaid case be stayed against the applicants during the pendency of the present application.
3. The facts in the present case are that a complaint dated 04.05.2022 was filed by the victim / prosecutrix against the applicants with regards to an incident dated 16.03.2022 at about 2 pm along with the allegation that she on 16.03.2022 had gone to her old kachcha house to bring articles and clothes. The door was kept open. She was packing the articles along with her daughter on which Vinay Kumar @ Bulli her devar and Ashutosh Kumar Pandey her cousin devar with Jagat Narayan @ Yagya Narayan her father-in-law came inside. Her father-in-law told her daughter to accompany him to the new house and her mother would complete the work after which her daughter went out of the house and thereupon Vinay and Ashutosh closed the door. Her daughter then stopped outside the house with her grand father. The victim / prosecutrix enquired from both the persons as to why they have closed the door on which they started abusing her and assaulted her. Her father-in-law was also abusing from outside and was exhorting them to burn her. Both the persons present inside assaulted her with lathi & danda. They tore her clothes and initially Ashish caught her legs and Vinay committed rape on her after which Vinay caught her legs and Ashish committed rape on her. They then again assaulted with lathi & danda. She received injuries on her body. On hearing shrieks of the mother, her daughter called her father and informed him who was living in Mumbai. Her daughter also called police and on hearing the sound of siren of police her father-in-law warned the accused persons after which all the three persons left her alone and ran away. She was then taken by police to the police station. Vinay Kumar and Ashutosh have also taken her jewellery, clothes and money. The said complaint was thus registered. In support of the complaint the complainant / prosecutrix was examined u/s 200 Cr.P.C., her daughter Sonali Pandey was examined as P.W.-1 and Pushpendra Pandey was examined as P.W.-2 u/s 202 Cr.P.C. The trial court vide order dated 05.01.2023 summoned the applicant nos.1 and 2 Vinay Kumar Pandey @ Bulli, Ashutosh Kumar Pandey, under Sections 376-D, 323, 504, 506 I.P.C. and summoned applicant no.3 Jagat Narayan Pandey under Section 109 I.P.C. to face trial.
4. Learned counsel for the applicants argued that the applicants and the opposite party no.2 are close relatives. The applicant no.1 is the real devar, applicant no.2 is the cousin devar and the applicant no.3 is the father-in-law of the opposite party no.2. It is argued that the opposite party no.2 filed a complaint in which the applicants have been summoned. It is argued that there is a property dispute between Pushpendra Pandey the husband of the opposite party no.2 and the applicants regarding which a civil suit has been filed by Pushpendra Pandey against his father and brother who are the applicant nos. 1 & 3 which is pending before the concerned civil court. It is argued that the civil court has passed an order on the application 6 (c) by which notice has been issued to the defendants therein vide order dated 21.02.2022. The said suit is pending disposal. It is argued that although the victim / prosecutrix / complainant was medically examined but there is no injury on her person which would corroborate the incident of rape upon her. It is argued that as such the present incident is a false incident. It is argued that the applicants have been falsely implicated only because of malafide intentions. No such incident whatsoever has taken place. It is argued that injuries as found by the doctor on the body of the complainant were opined to be by hard and blunt object but there is no injury corroborating the allegation of rape. It is argued that the proceedings are thus with malafide intentions and deserve to be quashed.
5. Per contra, learned counsel for the State opposed the prayer for quashing.
6. After hearing the learned counsel for the parties and perusing the records, it is evident that the applicants are named in the complaint, statement of the complainant and her witnesses u/s 200 Cr.P.C. and u/s 202 Cr.P.C. There are allegations against them. In so far as the applicant no.1- Vinay Kumar Pandey @ Bulli and the applicant no.2- Ashutosh Kumar Pandey are concerned, there are specific allegations of committing rape upon the complainant / prosecutrix. The applicant no.3 has also been assigned role participation in incident. There is allegation against them. The complainant / prosecutrix is a married lady having children.
7. At this stage, this Court cannot go into the defence of the applicants or even see the truthfulness of the allegations, only a prima facie case needs to be seen.
8. The Apex Court in the case of State of M.P. v. Awadh Kishore Gupta : (2004) 1 SCC 691 has in paragraphs 8 to 13 has held that High Court cannot appreciate evidence but can evaluate material and documents on records to the extent of its prima facie satisfaction about existence of sufficient ground for proceeding against the accused, it is not proper for High Court to act upon documents annexed to the petition under Section 482 Cr.P.C. and the annexures to the petition cannot be termed as evidence without being tested and proved. The same read as under:
"8. Exercise of power under Section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (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. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. 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 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/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.
9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(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 their 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.
(AIR para 6)
10. In dealing with the last case, 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. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 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) 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides 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."
11. As noted above, 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. 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 being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire 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 magnitude and 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. (See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304], State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : AIR 1999 SC 1216].] (emphasis supplied)
12. These aspects were also highlighted in State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539] .
13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal [(1992) 3 SCC 317 : 1992 SCC (Cri) 636] it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116 of 1994) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further.
(emphasis supplied)"
9. In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147, Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44, Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424 it has been held by the Apex Court that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case.
10. In the cases of Bhushan Kumar Vs. State of NCT of Delhi : (2012) 2 SCC 424, Nupur Talwar Vs. CBI : (2012) 11 SCC 465, Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons.
11. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of State of Haryana and Others Vs. Bhajan Lal and Others : (1992) Suppl (1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. It has further been held that existence of a civil remedy and initiation of it will not in any manner be an abuse of process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings.
12. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.
13. Looking to the facts of the case, the prima facie allegation against the applicant and the law as stated above, no case for interference is made out. The present application under Section 482 Cr.P.C. is thus dismissed.
Order Date :- 1.3.2023 AS Rathore (Samit Gopal,J.)