Allahabad High Court
I.C. Avasthi And 11 Others vs State Of U.P. And 3 Others on 13 September, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 18386 of 2019 Petitioner :- I.C. Avasthi And 11 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bharat Kishore Srivastava,Abhishek Srivastava Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Raj Beer Singh,J.
Order on Criminal Misc. Recall Application No. 2 of 2019 Heard Sri Abhishek Srivastava and Sri Bharat Kishore Srivastava, learned counsel for the petitioners-applicants, Sri A.R. Chaurasia, learned A.G.A. for the State and perused the entire record.
This is a recall application filed on behalf of the applicants for recalling the order dated 22.07.2019 passed by this Court.
Perusal of the ordersheet shows that on 22.07.2019, following order was passed:-
"Heard Sri Bharat Kishore Srivastava and Sri Abhishek Srivastava, learned counsel for the petitioner, Sri A.R. Chaurasia, learned A.G.A. for the State and perused the impugned F.I.R. as well as material brought on record.
This petition has been filed by the petitioner with a prayer to quash the F.I.R. dated 22.05.2019 registered as case crime no. 1133 of 2019, under sections 420, 467, 468, 471, 409, 120-B I.P.C. 13 and 7 Prevention of Corruption Act, 1988, police station Indrapuram, District Ghaziabad.
Learned counsel for the petitioner/s submits that he is not pressing this petition so far as it relates to quashing of impugned FIR. He further submits that in view of the notification No.1058/79-V-1-19-1 (Ka)-20-2018 dated 6th June 2019, provisions of anticipatory bail have been made applicable in the State of Uttar Pradesh and, therefore, the petitioner/s may be permitted to withdraw this petition with liberty to file an application under Section 438 of Cr.P.C. before the competent Court.
Counsel for the petitioner/s further submits that Registry may be directed to return certified copy of the F.I.R.
Learned State Counsel has no objection to this proposition.
The petition is, accordingly, dismissed, as withdrawn, with the aforesaid liberty.
Needless to state that in the eventuality of filing any such application by the petitioner/s, the same would be decided in accordance with law.
Registry is directed to return the certified copy of the FIR to the counsel for the petitioner/s after accepting xerox copy of the same."
It has been stated by learned counsel for the applicants that vide order dated 22.07.2019, this petition was dismissed as withdrawn with liberty to the applicants file the application under Section 438 of Cr.P.C. before the competent Court. It has further been stated that the writ petition may be restored to its original number and the same may be decided on merits.
Keeping in view the submissions of learned counsel for the applicants and also in view of the averments made in the instant application, the order dated 22.07.2019 is hereby recalled and the petition is restored to is original number.
Accordingly, the instant recall application is allowed.
(Raj Beer Singh, J.) (Ramesh Sinha, J.)
Order Date :- 13.9.2019
Anand
Court No. - 1
Case :- CRIMINAL MISC. WRIT PETITION No. - 18386 of 2019
Petitioner :- I.C. Avasthi And 11 Others
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Bharat Kishore Srivastava,Abhishek Srivastava Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Raj Beer Singh,J.
(Per: Raj Beer Singh, J.) Heard Sri Abhishek Srivastava and Sri Bharat Kishore Srivastava, learned counsel for the petitioners-applicants, Sri A.R. Chaurasia, learned A.G.A. for the State and perused the entire record.
This petition has been filed by the petitioners with a prayer to quash the F.I.R. dated 22.05.2019 registered as case crime no. 1133 of 2019 under Sections 420, 467, 468, 471, 409, 120B I.P.C. and Sections 13 and 7 of Prevention of Corruption Act, 1988, police station Indrapuram, District Ghaziabad.
Learned counsel for the petitioners has argued that no offence under Sections 13 and 7 of Prevention of Corruption Act, 1988 is made out against the petitioners and that impugned FIR is abuse of the process of law. He submits that the impugned FIR has been lodged against the petitioners on the basis of the application filed by the complainant/respondent no. 4 under Section 156(3) Cr.P.C. He further submits that complainant Gaurav Goel is a member of Resident Welfare Association, Kanchanjunga Building Apartment Association Kaushambi, Ghaziabad, who lodged the impugned FIR against the petitioners, alleging therein that the petitioners are the office bearers of the said association and they have misappropriated an amount of Rs. 90,471/- from the accounts of the said welfare association in the head of legal expenses. It has also been submitted that the Kanchanjunga Building Apartment Resident Welfare Association, Ghaziabad is a registered society. On the application filed by respondent no. 4 under Section 156(3) Cr.P.C., the Chief Judicial Magistrate, Ghaziabad has passed an order dated 01.09.2016 directing to the concerned police station to lodge an FIR against the petitioners under Sections 147, 148, 149, 384, 342, 432, 448, 453, 120-B IPC and thereafter, during investigation, the police have submitted final report against the petitioners on 21.03.2017. The complainant/respondent no. 4 being aggrieved by the said final report, filed a protest petition before the Chief Judicial Magistrate, Ghaziabad and on the said protest petition, the Chief Judicial Magistrate, Ghaziabad has passed an order, directing to the concerned police station for further investigation in the matter vide order dated 06.07.2017. Respondent no. 4 Gaurav Goel has also filed a complaint dated 12.09.2016 before the Registrar of Societies against the petitioners. It has been argued that the amount of Rs. 90,471/-, which is said to have been embezzled by the petitioners, has been duly approved by all the members of the said association in the general body meeting. It has also been argued that earlier the petitioners have filed a Criminal Misc. Writ Petition No. 21184 of 2016 before this Court for quashing of the FIR in which an order was passed in favour of the petitioners directing that the petitioners would not be arrested in that case till submission of the police report under Section 173(2) Cr.P.C. It was further submitted that the impugned FIR is nothing but abuse of the process of law and Section 409 IPC is not made out against the petitioners as the said association does not fall under the purview of 'public servant' and the petitioners have not misappropriated any fund of the society and the said fund was spent towards the legal expenses towards court case and the present FIR has been lodged against the petitioners only for the purpose of extorting money from the petitioners and thus, the impugned FIR is illegal and mala fide and liable to be quashed.
Per contra learned AGA for the State submitted that the impugned FIR is not liable to be quashed on the basis of the submissions advanced by the learned counsel for the petitioners. He further submitted that the petitioners have an efficacious remedy for seeking anticipatory bail in the matter, which has been made applicable in the State of U.P. w.e.f. 06.06.2019.
The legal position on the issue of quashing of FIR or criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if 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, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C. In the well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. Guidelines are as follows:
(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 to 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 156(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 every 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."
The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. (2000 Cr.L.J. 569) after considering the various decisions including State of Haryana v. Bhajan Lal (AIR 1992 SC 604) that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case.
In the case of R. Kalyani v. Janak C. Mehta and Others reported in 2009 (1) SCC 516, the Hon'ble Apex Court has held as under:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
Keeping in view the above-stated settled position of law, in the instant case, perusal of the record shows that there are allegations against the petitioners in the FIR that earlier the members of alleged society have tried to extract Rs. 1,50,000/- from the complainant and when he declined, he was given beatings and his wife was illegally confined and in that regard a case was lodged and after that the petitioners have threatened the complainant. It was further alleged that the petitioners prepared a forged resolution of the society showing Rs. 90,471/- as expenses and misappropriated the alleged fund. It is apparent from the FIR and material on record that a prima facie cognizable offence is made out against the petitioners. The case of the petitioners does not fall in any of the category enumerated by the Apex Court through various judicial pronouncements for quashing of the FIR.
It is well settled that at this stage, this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases.
As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of FIR or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In the judgments of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Article 226 of the Constitution of India.
The submissions raised by learned counsel for the petitioners call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted in this case. The perusal of the record makes out, prima facie, offences at this stage and there appears to be sufficient ground for investigation in the case. Here it would be pertinent to mention that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. (vide State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540).
In view of the aforesaid, considering the allegations made in the FIR and material brought on record, it cannot be said that no prima facie is made out against the petitioners, rather there appears to be sufficient ground for investigation in the matter. Accordingly, we do not find any justification to quash the impugned F.I.R.
The petition lacks substance and thus, the same is, accordingly, dismissed.
(Raj Beer Singh, J.) (Ramesh Sinha, J.)
Order Date :- 13.9.2019
Anand