Allahabad High Court
Dileep Pashwan And Another vs State Of U.P. And Another on 26 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:185971 Judgment Reserved on 15.09.2023 Judgement Delivered on 26.09.2023 A.F.R Court No. - 92 Case :- APPLICATION U/S 482 No. - 29548 of 2023 Applicant :- Dileep Pashwan And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sunil Kumar Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
1. Heard Sri Sunil Kumar, learned counsel for the applicants and Sri Pankaj Srivastava, learned A.G.A. for the State.
2.The instant application under Section 482 Cr.P.C. has been filed by the applicants seeking quashing of the entire criminal proceedings of Criminal Complaint Case No. 39 of 2022 (Prabhu Pashwan vs. Dileep and others), arising out of Case Crime No. 132 of 2019 u/S 323, 376 I.P.C. & Section 3/4 POCSO Act, P.S.- Khorabar, District- Gorakhpur, pending in the Court of Additional Sessions Judge/Special Judge, POCSO Act, Court- 1, District- Gorakhpur.
3. As per the allegations made in the F.I.R., the brief facts of the case are that the opposite party no.2 has stated that his daughter was raped at about 9:30 P.M. on 21.02.2019 by the accused persons/applicants and two other unknown persons. The brief story as set-out in the F.I.R. is that the opposite party no.2, his daughter and his entire family members were supposed to go towards Madari Pahar, Nepal, on 21.02.2019. All were supposed to go by tourist bus. The bus had arrived in front of their house on 8:30 P.M. and all of them sat on the bus. Then, the daughter of the opposite party no.2 went to attend the nature's call at the toilet, situated behind the house. When after sometime she did not return then they went to look after her and when they reached toward the toilet to see his daughter, she was not there. Then, they started the search of their daughter then after sometime, the daughter was found unconscious near the Turra Nala (Turra Drainage). She was brought back in the house when after sometime she became conscious then she told that four boys have forcibly taken her towards the Turra Nala (Drainage) and out of these four, three were holding the entire body of the victim and the one Dileep Pashwan, had raped her. Whenever she was trying to cry and sound they closed her mouth and beaten her. Out of those four persons, she had identified two persons only and one was Dileep Pashwan and another was Manjesh Pashwan. The two other persons could not be identified.
4. The opposite party no.2 had further stated in the F.I.R. that he called the police at 100 number twice but on both the occasions the phone could not be picked up.
5. After the registration of the F.I.R., the matter was investigated by the Police and the statements of witnesses were recorded u/S 161 Cr.P.C., the victim was medically examined at the District Women Hospital, Gorakhpur, where the hymen was found ruptured and as per the medical report, the stretch marks were found on the left eye lid as per the medical report. The penetration was also found established. During their statements u/S 161 Cr.P.C., the opposite party no.2 and the victim had supported the story as stated in the F.I.R. and her age stated to be 16 years. In her statements u/S 161 Cr.P.C., she has further stated that Dileep Pashwan and Manjesh Pashwan, used to harass the victim since last one year and on 21.02.2019 at about 8:30 P.M., when they were going to Nepal, Dileep Pashwan and Manjesh Pashwan and two other persons closed the mouth of the victim and took her away and raped her. She has further stated that when the family members were told about incident then, they went to the house of Dileep Pashwan and Manjesh Pashwan to complain about them, which converted into altercation between both the parties.
6. The opposite party no.2 in his statement as well as the mother of the victim, Smt. Nirmala Devi, also supported the story as alleged in the F.I.R. and has explained that when they were informed by the victim about the incident, then they went to the house of Dileep Pashwan and Manjesh Pashwan, which was across the road, to complain about the same, which converted into altercation between them. When they went to report the incident next day to the police, they found the other sides were already available at the police station and the police refused to register their F.I.R. Therefore, after intervention of the higher officials, the First Information Report was registered on 26.02.2019. After investigation of the offence, the police submitted the final report which was protested by the opposite party no.2 vide his application dated 13.09.2021. On such application by the opposite party no.2, vide order dated 30.04.2022, the Special Judge POCSO Act, directed the said case to be treated as the complaint case and thereafter, after recording the statements u/S 200 and 202 Cr.P.C., the learned Magistrate has summoned the accused persons vide order dated 23.05.2023, as the allegations made in the F.I.R. were supported by the statements u/S 161 as well as 164 Cr.P.C. and the statement made by the opposite party no.2 and the other witnesses u/S 200 and 202 Cr.P.C.
7. Learned counsel for the applicants submits that on 21.02.2019, due to previous enmity, the opposite party no.2 and his family members assaulted the applicants and his family members and due to such assault they had suffered grievous injury and other injuries. For the said incident of assault, the Case Crime No. 120 of 2019 was registered against the opposite party no.2 and his family members on next day, on 22.02.2019, by the applicant no.2 herein. Therefore, as a counterblast of the said case registered by the applicant no.2 against the opposite party no.2 and his family members, the instant case has been registered on fabricated story made out by the opposite party no.2. Since, the police, after investigation, has already submitted the final report in the instant case, therefore, the applicant has prayed for quashing of the entire proceeding of the said criminal case lodged on the complaint made by the opposite party no.2.
8. Learned counsel for the State submits that though the police has filed the final report in the instant case but the case as narrated in the F.I.R. has already been supported by the 161 as well as 164 Cr.P.C. statements of the victim as well as the other witnesses and sufficient explanation for delay in lodging the F.I.R. has already been given by all the witnesses, i.e., the opposite party no.2, the victim and her mother and after the order dated 30.04.2022, on the protest petition filed by the opposite party no.2, the case was treated as complaint case by the magistrate. After recording the statements u/S 200 and 202 Cr.P.C., the accused/applicants have been summoned by the Magistrate after recording his satisfaction that the cognizable offence has taken place and sufficient material is available on record against the applicants herein, therefore, there is no illegality in the order dated 23.05.2023. Therefore, it cannot be said that order has been passed without any material before the Court and the instant application seeking quashing of the entire criminal proceedings is devoid of merits and is liable to be dismissed.
9. Having heard the rival submissions of learned counsel for the parties, this Court has carefully perused the records of the case.
10. To enunciate the principles of law with regard to quash the criminal proceedings by the High Courts in exercise of inherent powers u/S 482 Cr.P.C, it is necessary to take note of some remarkable decisions of the Apex Court. In the case of R.P. Kapoor vs. State of Punjab : AIR 1960 SUPREME COURT 866, the Apex Court while considering the powers of the High Court u/S 561 (A) of the Cr.P.C. (1898), 'the old Code' which are akin to the provisions of Section 482 Cr.P.C., 1973, the Apex Court in para '6' of the judgement has observed as under:
"6. .......There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code..........
........It is well-established that the inherent jurisdiction of the High Court can be exercised to quash 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 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. In 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 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 Section 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."
11. Similarly, in case of State of Haryana and other vs. Bhajan Lal and Others : 1992 Supp (1) Supreme Court Cases 335 : 1992 Supeme Court Cases (Cri) 426, the Apex Court has laid down the following principles in exercise of extraordinary powers under Article 226 of the Constitution of India as well inherent power of High Court u/S 482 Cr.P.C., 1973, 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 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 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."
12. In case of Kurukshetra University vs. State of Haryana : (1977) 4 SCC 451, the Apex Court held "that the inherent powers u/S 482 Cr.P.C., do not confer any arbitrary jurisdiction on the High Court to act accordingly to whim or caprice; that statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases."
13. In case of State of Andhra Pradesh vs. Golconda Linga Swamy : (2004) 6 SCC 522, the Apex Court observed as under:
"5. Exercise of power under Section 482 of the Code in a case of this nature is the 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 recognises 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 course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et 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 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.
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.....
8. 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. 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 proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : (1992) 4 SCC 305 : 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 a proceeding 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 cognisance 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/FIR 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 or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR 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 court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding."
14. In the case of Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haque : (2005) 1 SCC 122, the Apex Court has observed as under:
"11. ... 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 proceeding at any stage. 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 premise 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 a proceeding 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 court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings."
15. In the case of Sanapareddy Maheedhar Seshagiri vs. State of Andhra Pradesh : (2007) 13 SCC 165, this Court has held as under:
"31. A careful reading of the abovenoted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that FIR does not disclose commission of any offence or that the allegations contained in FIR do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing FIR or complaint or restraining the competent authority from investigating the allegations contained in FIR or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in FIR or complaint disclose commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of FIR or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the petitioner on account of investigation of FIR or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power under Section 482 CrPC."
16. In the case of State of Maharashtra vs. Arun Gulab Gawali : (2010) 9 SCC 701, the Apex Court has as under:
"13. The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor can it "soft-pedal the course of justice" at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as "CrPC") are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that stream of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : (1982) 1 SCC 561 : AIR 1982 SC 949], Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400], G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : (2000) 2 SCC 636 : AIR 2000 SC 754] and Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]) xxxxxxxxx
27. The High Court proceeded on the perception that as the complainant himself was not supporting the complaint, he would not support the case of the prosecution and there would be no chance of conviction, thus the trial itself would be a futile exercise. Quashing of FIR/complaint on such a ground cannot be held to be justified in law. Ordinarily, the Court of Session is empowered to discharge an accused under Section 227 CrPC even before initiating the trial. The accused can, therefore, move the trial court itself for such a relief and the trial court would be in a better position to analyse and pass an order as it is possessed of all the powers and the material to do so. It is, therefore, not necessary to invoke the jurisdiction under Section 482 CrPC for the quashing of a prosecution in such a case. The reliance on affidavits by the High Court would be a weak, hazy and unreliable source for adjudication on the fate of a trial. The presumption that an accused would never be convicted on the material available is too risky a proposition to be accepted readily, particularly in heinous offences like extortion.
28. A claim founded on a denial by the complainant even before the trial commences coupled with an allegation that the police had compelled the lodging of a false FIR, is a matter which requires further investigation as the charge is levelled against the police. If the prosecution is quashed, then neither the trial court nor the investigating agency has any opportunity to go into this question, which may require consideration. The State is the prosecutor and all prosecution is the social and legal responsibility of the State. An offence committed is a crime against society and not against the victim alone. The victim under undue pressure or influence of the accused or under any threat or compulsion may resile back but that would not absolve the State from bringing the accused to book, who has committed an offence and has violated the law of the land.
29. Thus, while exercising such power the Court has to act cautiously before proceeding to quash a prosecution in respect of an offence which hits and affects the society at large. It should be a case where no other view is possible nor any investigation or inquiry is further required. There cannot be a general proposition of law, so as to fit in as a straitjacket formula for the exercise of such power. Each case will have to be judged on its own merit and the facts warranting exercise of such power. More so, it was not a case of civil nature where there could be a possibility of compromise or involving an offence which may be compoundable under Section 320 CrPC, where the Court could apply the ratio of Madhavrao Jiwajirao Scindia [(1988) 1 SCC 692 : 1988 SCC (Cri) 234 : (1988) 1 SCC 692 : AIR 1988 SC 709]."
17. In the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others : 2021 SCC OnLine SC 315, the Apex Court, taking note of the aforesaid judgments has concluded as under:
"80. 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 Cr. P.C. 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 Cr. P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr. P.C. 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 in two specific spheres of activities and one ought not to tread over the other sphere;
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 which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr. P.C. 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 Cr. P.C., 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 Cr. P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr. P.C. 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 Cr. P.C., while dismissing/disposing of the quashing petition under Section 482 Cr. P.C. 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 Cr. P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
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."
18. In very recent judgement of the Apex Court in Veena Mittal vs. State of U.P.,: 2022 LiveLaw (SC) 110, decided on 24.01.2022, relying upon the aforesaid judgement of Neeharika Infrastructure (supra), the Apex Court has held that it is well settled that at this stage when the High Court consider the petition for quashing of the criminal proceedings u/S 482 Cr.P.C., the allegations in the F.I.R. is that is the incident and it is only after on the face of the allegations that no offence has been made out. The Court may quash the criminal proceedings, in exercise of its jurisdiction.
19. Therefore, from the aforesaid judgments it is crystal clear that the powers u/S 482 Cr.P.C. conferred on the High Court in exercise of its inherent jurisdictions are wide enough but as much as the powers are wide the greater responsibility has been conferred on the High Courts while exercising such powers. Such power has to be exercised sparingly with circumspection, in the rarest of rare cases and while exercising such powers, the reason must be explained by the High Courts for exercising such powers. While examining an F.I.R/Complaint, which is sought to be quashed, the Courts are not required to appreciate the evidence for reliability and genuineness of such evidence. As the same is the job of the learned Magistrate while trying such criminal case. Normal rule is that criminal proceedings ought not to be scattered at the very initial stage. Normally, the High Court should not quash the proceedings. It is only when the Court comes to the conclusion that from the very plain reading of the material available on record, specifically the F.I.R. and the chargesheet or the complaint and the primary evidence u/S 200 and 200 Cr.P.C., as the case may be, the power u/S 482 can be exercised for quashing of the criminal proceedings if it is found the no offence is made out. However, while doing such exercise of powers, the Courts are not permitted to appreciate the reliability and genuineness of such material. The powers u/S 482 Cr.P.C should be exercised in exceptional cases where non-interference by the High Court would result in miscarriage of justice. Such exercise of extraordinary and inherent powers do not confer any arbitrary jurisdiction on the High Court to act according to their whims and fancies. The First Information Report is not an encyclopedia in itself which must disclose all facts and narrations in detail. This is only an information with regard to commission of an offence, the manner and the other material relevant for the criminal proceedings can be brought in by the informant and the other witnesses, while investigating the case or during the trial. Therefore, it would be premature to pronounce the conclusions based on very facts that the F.I.R./Complaint, does not deserves to be investigated/tried. It is also clear from the aforesaid line of decisions that when prayer for quashing the F.I.R. is made by the alleged accused, the Court while exercising the power u/S 482 Cr.P.C., it is required to consider only, whether the allegations in the F.I.R./Complaint discloses the commission of cognizable offence or not. While exercising such powers, the Court cannot consider the merits of the allegations made in the F.I.R./Complaint with regard to a congizable offence.
20. Having regard to the aforesaid guidelines provided for exercising the power u/S 482 Cr.P.C. from the facts of the instant case, it is apparent that the First Infomation Report discloses a cognizable offence having committed by the accused person which is of a serious nature and the said commission of the offence has been supported by the victim in her statement u/S 161 Cr.P.C as well as u/s 164 Cr.P.C., making clear and categorical allegations against the applicants herein. Though, in the instant case the final report was filed by the police, the Magistrate has taken cognizance of the matter while the same was protested by the opposite party no.2 in his protest petition and after recording the statement u/S 200 and 202 Cr.P.C., the Magistrate on the basis of the materials available before him has taken cognizance of the matter and has summoned the applicant for trial. Therefore, in the considered view of this Court, there is no illegality in the impugned order dated 23.05.2023 and since the cognizable offence of a serious nature has been alleged, which requires a detailed trial cannot be quashed while exercising the power u/S 482 Cr.P.C..
21. In view thereof, the instant application is devoid of merits and is hereby dismissed.
Order Date :- 26.9.2023 Shubham Arya