Allahabad High Court
Smt. Asha Sharma And Another vs State Of U.P. And Another on 13 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 40964 of 2014 Applicant :- Smt. Asha Sharma And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.A. Imam,Anand Ji Mishra,Kaushal Kumar Pandey Counsel for Opposite Party :- Govt. Advocate,Ashwini Kumar Srivastava Hon'ble Dinesh Kumar Singh-I,J.
Rejoinder affidavit filed today is taken on record.
Heard Sri S.A. Imam, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A.
None has appeared from the side of the opposite party no. 2 although counter affidavit dated 12.5.2019 has been filed from his side.
Learned A.G.A. has also filed counter affidavit on 12.11.2014.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet no. 292 of 2014 dated 04.08.2014 arising out of Case Crime No.461 of 2014 under sections 420, 467, 468, 471 IPC P.S. Modi Nagar, District Ghaziabad pending the Court of Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad and also a prayer is made to stay the proceedings in this case till the disposal of this application.
The argument of the learned counsel for the applicant is that a compromise has been taken place between the opposite party no. 2 and the applicants. The proceedings under section 125 Cr.P.C. have been quashed and copy of the order dated 20.9.2019 passed by this Court in Crl. Revision No.3938 of 2018 (Smt. Asha Sharma vs. State of U.P. and another) has been produced which is taken on record. Therefore, it is prayed that the proceedings need to be quashed as it is nothing but an abuse of the process of the Court.
I have gone through the FIR. It is recorded in it that the accused-applicant no.1 is wife of opposite party no. 2 and the applicant no. 2 is the brother of the applicant no. 1. As per FIR, both the accused-applicants are stated to have prepared forged pay slip of the opposite party no. 2 and the same has been submitted before the Court of Civil Judge (S.D.), Hapur in proceedings under section 125 Cr.P.C pending between the accused-applicant no.1 and opposite party no. 2 in order to gain undue advantage from the Court and the said slip is said to have forged signatures of Tehsildar, Modi Nagar. On the basis of the FIR, case crime no. 461 of 2014 under sections 420, 467, 468, 471 IPC, Police Station Modi Nagar, District Ghaziabad has been registered and after investigation, charge-sheet has been submitted by the Investigating Officer after having recorded statements of as many as eight witnesses which cannot be disbelieved in proceedings u/s 482 Cr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.
In the counter affidavit filed from the side of the State it has been submitted that the informant in his statement under section 161 Cr.P.C. has clearly stated that he was posted as Sanagrah Anusewak/Computer Operator in Tehsil Modi Nagar, Ghaziabad and a case between the first informant and his wife (applicant no.1) under section 125 Cr.P.C. was going on in the Court of Additional Civil Judge (J.D.), Hapur. The accused-applicant no. 1 and accused-applicant no.2 have prepared a forged and fictitious pay slip of opposite party no. 2 and has filed the same in order to obtain a favourable order from the Court against the opposite party no. 2. In this matter, the Investigating Officer has recorded statements of Satya Veer, Shyam Awadh Chauhan, the then Tehsildar, Janeshwar Sharma, Kamlesh Kumar Singh, Tehsildar, Tehsil Modi Nagar, Ghaziabad etc. under section 161 Cr.P.C. and all of them have supported the prosecution case thereafter charge-sheet has been submitted in the above-mentioned sections.
In view of the above, it cannot be denied at this stage that a prima-facie case is made out against the accused applicants, as it appears that forged signatures of Tehsildar were made in order to prepare the forged pay slip of opposite party nos. 2. In such a matter compromise cannot be allowed to take place.
As regards compromise for offence under above-mentioned section, law laid-down by Supreme Court in Gian Singh vs. State of Punjab and another, 2012(10) SCC 303 specifically bars any compromise because a wrong has been committed by forging a pay slip showing the same to have been signed by Tehsildar.
"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(Emphasis added) The prayer for quashing the proceedings of the aforesaid case is refused.
The applicants shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused-applicants in the aforesaid case. But if the accused -applicant do not appear before the court below, the court below shall take coercive steps to procure their attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 13.11.2019 AU