Allahabad High Court
Basant Lal And Others vs State Of U.P. And Another on 10 November, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 91 Case :- Application U/S 482 No.2998 of 2007 Applicant :- Basant Lal and Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinesh Kumar Yadav, Dharmendra Singhal Counsel for Opposite Party :- Govt. Government Hon'ble Subhash Vidyarthi, J.
1. Heard Sri Madhukar Maurya, Advocate, holding brief of Sri Dinesh Kumar Yadav, Advocate for the applicants and Sri Pankaj Srivastava and Shri Rakesh Chandra Srivastava, learned Additional Government Advocates appearing for the State and perused the record.
2. By means of the instant application under Section 482 of Code of Criminal Procedure the applicants have prayed for quashing of the complaint lodged as Complaint Case No. 1015 of 2006 titled Raju Vs. Basant Lal and others, pending in the Court of learned Additional Chief Judicial Magistrate, Ist, Aligarh, under Sections 323, 452, 427, 504 and 506 of the Indian Penal Code and all consequential proceedings thereon.
3. On 05-07-2006, one Raju son of Shri Ramdeen, resident of Mohalla Bhagwan Nagar, Police Station Sasni Gate, District Aligarh lodged a complaint alleging that he is a trader of readymade garments and so are the applicants. The complainant and the applicants are known to each other and they have been trading the goods from each other. On 02-07-2006 all the three applicants went to the complainant's house and demanded goods worth Rs.20,000/-. The complainant declined their request and demanded payment of Rs.10,000/- already due from the applicants, upon which the applicants got angry, abused and assaulted him, torn his clothes, broken household goods and caused financial loss of about Rs.5,000/- to Rs.6000/-. Statements of witnesses were recorded under Section 202 of Code of Criminal Procedure and thereafter the summoning order was passed on 16-09-2006.
4. The applicants gave an application dated 27-11-2006 (a copy whereof has been annexed as Annexure No. 4 to the affidavit filed in support of the Application under Section 482) to the District Magistrate, Aligarh stating that the applicant no. 3 Pradeep Kumar is in service of the Postal Department of the Government of India since the year 1995 and he is residing at New Delhi, the applicant no. 2 Satish Kumar is doing private job and the applicant no.1 also works as an agent. All of them reside at New Delhi and they have never had any relation with Aligarh. Raju son of Ramdeen, Dharamveer son of Pyare Singh and Ram Babu son of Sita Ram, all residents of Aligarh, are hatching a conspiracy for entangling the applicants in false cases. None of the applicants are clothes merchants. Earlier also, an Advocate had sent a notice from Ghaziabad in an attempt to entangle the applicants in a false case. The applicants had sent a reply to the aforesaid notice and upon an inquiry held by the police, it was found that the name and address of the complainant was fictitious. One Chetan Prakash, a neighbour of the applicants has prepared forged documents of the house of the applicant no. 3 and on the basis thereof he has taken a loan in connivance with certain bank officers. Chetan Prakash is a proclaimed offender and upon coming to known about these facts the applicants have filed F.I.R. No. 153 of 2003, under Sections 420, 468, 471, 120-B of the Indian Penal Code and F.I.R. No. 125 of 2003, under Sections 420 and 193 of the Indian Penal Code.
5. The aforesaid Chetan Prakash, his wife Uma, brother Vipin Prakash and their associates are pressurizing the applicants in several ways and on the applicants' complaint F.I.R. No. 92 of 2005, under Section 506 and 34 of the Indian Penal Code has been registered. As the conspiracy hatched by the aforesaid persons failed in Delhi, they hatched another conspiracy to teach a lesson to the applicants in Uttar Pradesh. In this regard the applicants have given complaints to the police authorities in Ghaziabad and Noida as well as to the Director General of Police, Uttar Pradesh, Lucknow. By means of the aforesaid application the applicants requested the District Magistrate to get a thorough inquiry conducted against Raju resident of Bhagwan Nagar and Dharamveer and Ram Babu residents of Jaiganj. They further stated that in case in the inquiry the applicants are found guilty they will accept whatever punishment would be inflicted upon them.
6. Upon the aforesaid application dated 27-11-2006, an inquiry was conducted by the police and a report was submitted to the Senior Superintendent of Police, Aligarh stating that upon inquiry no person by the description of Raju son of Ramdeen, resident of Bhagwan Nagar as well as the other two persons mentioned by the applicants in the complaint was found and it was reported that there was no need of any police action.
7. The applicants have challenged the complaint and the summoning order on the ground that the complaint is bogus and it was filed with a view to achieve ulterior motive and it is an abuse of the process of court and, therefore, it deserves to be quashed.
8. On 14-02-2007 an interim order was passed in this case staying further proceedings of the Complaint Case and a notice was ordered to be issued to the complainant / opposite party no. 2 enabling him to file a counter affidavit within a period of six weeks and the learned AGA was also given an opportunity to file a counter affidavit within a same period.
9. The notice was sent to the complainant/opposite party no.2 through the Chief Judicial Magistrate, Aligarh, who has sent a report dated 04-06-07 stating that no person of the description "Raju son of Ramdeen, resident of Bhagwan Nagar, Police Station, Sasni Gate, Aligarh" could be found.
10. Sri Madhukar Maurya Advocate has submitted that even though the notice could not be served on the complainant - opposite party no. 2, the stay of proceedings of the complaint case would surely amount to notice of the present application under Section 482 Cr.P.C. Had the complainant been genuinely interested in pursuing the complaint, he would have come to know about the present application when the proceedings of the complaint got stayed. However, in spite of the proceedings of the complaint case remaining stayed since as far as back as 14-02-2007, neither the opposite party no.2 complainant has put in appearance in the case nor has he filed any application for vacation of the interim order or a counter affidavit disputing the correctness of the averments made in the application under Section 482 Cr.P.C. as well as the affidavit filed in its support and the same remain uncontroverted. The learned counsel for the applicants has submitted that this conduct of the complainant/opposite party no.2 fortifies his contention that the complaint is false and bogus and the proceedings initiated by the complainant amount to an abuse of the process of law for harassing the applicants.
11. The scope of interference by the High Courts in proceedings under Section 482, Cr.P.C. has been succinctly laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, in the following words: -
"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 extraordinary 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 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 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."
12. In Vineet Kumar versus State of U.P. reported in (2017) 13 SCC 369, the Hon'ble Supreme Court has been pleased to hold that: -
"41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal, which is to the following effect: (SCC p. 379, para 102) "102. (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."
13. In Pankaj Kumar v. State of Maharashtra, (2008) 16 SCC 117, the Hon'ble Supreme Court was pleased to explain the scope and ambit of powers of the High Courts under Section 482, Cr.P.C. in the following words: -
"14.The scope and ambit of powers of the High Court under Section 482 CrPC or Article 227 of the Constitution has been enunciated and reiterated by this Court in a series of decisions and several circumstances under which the High Court can exercise jurisdiction in quashing proceedings have been enumerated. Therefore, we consider it unnecessary to burden the judgment by making reference to all the decisions on the point. It would suffice to state that though the powers possessed by the High Courts under the said provisions are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The powers have to be exercised sparingly, with circumspection and in the rarest of rare cases, where the court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed. (See Janata Dal v.H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36] ,Kurukshetra University v. State of Haryana [(1977) 4 SCC 451 : 1977 SCC (Cri) 613] and State of Haryana v.Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] .)"The expression "rarest of rare cases" used by the Hon'ble Supreme Court in Bhajan Lal has been explained in Google India (P) Ltd. v. Visaka Industries, (2020) 4 SCC 162 in the following words: -
"43. As to what is the scope of the expression "rarest of rare cases" indicated in para 103, we may only refer to the judgment of this Court in Jeffrey J. Diermeier v. State of W.B.,(2010) 6 SCC 243 wherein the law laid down by a Bench of three Judges in Som Mittal (2) v. State of Karnataka (2008) 3 SCC 574 has been referred to : (Jeffrey J. Diermeier case(2010) 6 SCC 243, SCC p. 252, para 23) "23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. State of Karnataka(2008) 3 SCC 574. Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said : (SCC pp. 580-81, para 9) ''9. When the words "rarest of rare cases" are used after the words "sparingly and with circumspection" while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection.'"
14. In a recent pronouncement reported in 2021 SCC Online SC 873, Geo Varghese Vs. State of Rajasthan, the Hon'ble Supreme Court held as under:-
"35.The scope and ambit of inherent powers of the Court under Section 482 CrPC or the extra-ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, every High Court has inherent power to act ex debito justitiae i.e., to do real and substantial justice, or to prevent abuse of the process of the Court. The powers being very wide in itself imposes a solemn duty on the Courts, requiring great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power vested in the Court should not be exercised to stifle a legitimate prosecution. However, the inherent power or the extra-ordinary power conferred upon the High Court, entitles the said Court to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court, or the ends of justice require that the proceeding ought to be quashed.
36.The following observations made by this Court in the case of State of Karnataka v. L. Muniswamy may be relevant to note at this stage:--
"The whole some power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent power, both in civil and criminal matters, to achieve a salutary public purposes. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature."
15. In Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330, the Hon'ble Supreme Court has formulated certain steps to determine the veracity of a prayer for quashing under Section 482 Criminal Procedure Code as follows:-
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
(emphasis supplied by me)
16. Examining the uncontroverted averments made in the application and the affidavit filed in its support as well as the other material brought on record in light of the law laid down through various pronouncement of the Hon'ble Supreme Court, namely the application dated 27-11-2006 submitted by the applicants to the District Magistrate, Aligarh, the report submitted to the Senior Superintendent of Police, Aligarh stating that upon inquiry no person by the description of Raju son of Ramdeen, resident of Bhagwan Nagar as well as the other two persons mentioned by the applicants in the complaint was found and there was no need for any police action and the report dated 04-06-07 submitted by the Chief Judicial Magistrate, Aligarh, stating that no person of the description "Raju son of Ramdeen, resident of Bhagwan Nagar, Police Station, Sasni Gate, Aligarh" could be found, coupled with the fact that in spite of the proceedings of the complaint case remaining stayed since as far as back as on 14-02-2007, neither the opposite party no.2 complainant has put in appearance in the case nor has he filed any application for vacation of the interim order or a counter affidavit disputing the correctness of the averments made in the application under Section 482 Cr.P.C. This Court is satisfied that the contention of Sri Madhukar Maurya, the learned Counsel for the Applicants, that the complaint is bogus and it was filed with a view to achieve ulterior motive, and it is an abuse of process of the Court, is correct and the material relied upon by the applicant has not been refuted.
17. The criminal proceeding initiated by the complainant- opposite party no. 2 by filing of the complaint is manifestly attended with mala fide and the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to some private and personal grudge. The complainant is apparently bogus and the complainant has no interest in pursuing his complaint.
18. In the aforesaid circumstance, in case the stay order is vacated now and the proceedings of the complaint are allowed to resume, no useful purpose will be served and the prosecution of the applicants would only result in their persecution. Allowing the proceeding to continue would be an abuse of the process of the Court, and the ends of justice require that the proceeding ought to be quashed. To do real and substantial justice and to prevent abuse of the process of the Court, the application under Section 482 Cr.P.C. deserves to be allowed.
19. Therefore, the application under Section 482 Cr.P.C. is allowed. The Complaint Case No.1015 of 2006, Raju Vs. Basant Lal and others, pending in the Court of learned Additional Chief Judicial Magistrate, Ist, Aligarh, under Sections 323, 452, 427, 504 and 506 of the Indian Penal Code and the summoning order dated 16-09-2006 are liable to be quashed and are hereby quashed.
Order Date:10.11.2021 pks/