Allahabad High Court
Raju Yadav And 13 Ors vs State Of U.P. And Another on 25 August, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- APPLICATION U/S 482 No. - 11893 of 2020 Applicant :- Raju Yadav And 13 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashwini Kumar Ojha Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
The present application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.11.2019 passed by learned by learned Special Judge (D.A.A.Act)/ Additional Sessions Judge, Jhansi in CNR No.UPJS01002617, Complaint Case No.38 of 2018 (Surendra Vs. Raju Yadav and others) whereby applicants have been summoned to face trial under Sections 395, 307, 427 I.P.C. Police Station Sadar Bazar, District Jhansi as well as to quash the order dated 12.04.2018 whereby final report being F.R.Cri.Misc. No.48 of 2015 has been disposed of and also to quash the proceedings of aforesaid complaint case.
Heard learned counsel for the applicants and learned A.G.A.
It has been argued by learned counsel for the applicants that applicants are innocent and they have been falsely implicated in the instant case and that impugned complaint has been filed on false and baseless allegations. It was submitted that applicant no.3 namely, Goteeram Yadav has lodged a F.I.R. dated 05.11.2013 under Sections 307, 323, 504, 506 I.P.C. and Section 7 of Criminal Law Amendment Act vide crime no. 108 of 2013 against opposite party no.2 and others and in that case, charge sheet has already been filed. It was further submitted that opposite party no.2 has filed an application under Section 156 (3) Cr.P.C. against the applicants with an intention to exert pressure, in which after investigation police have submitted final report on 24.11.2014 but after a lapse of three years, the opposite party no.3 filed protest petition which was treated as complaint case without recording any reasons and without following due procedure prescribed under Code of Criminal Procedure. It was also submitted that learned Court below has not considered the material available in case diary and final report submitted by police was also not decided, therefore, the impugned orders are against the provisions of law. In support of his contention, learned counsel has relied upon a decision of Hon'ble Apex Court reported in 2019 (3) JIC 1 (SC) Vishnu Kumar Tiwari Vs. State of U.P. and another.
Per contra, learned A.G.A. has opposed the application and argued that averments made in protest petition, which was treated as complaint, as well as statement recorded under Section 200 Cr.P.C. and inquiry conducted under Section 202 Cr.P.C. disclose a prima facie case against the applicants. At this stage, material cannot be examined meticulously and only it to be seen whether prima facie case is made out or not. It was further submitted that submissions advanced by learned counsel for applicant may be considered during trial and not at this stage. Furthermore, applicants have got a right to file discharge application in accordance with law.
The legal position on the issue of quashing of 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. However, where the allegations made in the FIR or the complaint and material on record 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 charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In 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.
In the instant matter, the submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately 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. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and 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.
In the instant case, contention that final report was not decided cannot be accepted as in the order dated 12.04.2018, it has been mentioned that protest petition is registered as complaint case and case was fixed for 22.05.2018 for recording statement under Section 200 Cr.P.C. and it was also stated that final report stands disposed of accordingly.
So far as the argument advanced by learned counsel for the applicant that statements of witnesses recorded in case diary during investigation were not considered, is concerned, it may be stated that once the final report was disposed off and protest petition has been registered as complaint case, the Court below is to consider the statement of complainant recorded under Section 200 Cr.P.C and statement of witnesses recorded under section 202 Cr.P.C. After registration of protest petition of opposite party no.2 as complaint case, the Court below was not required to pass the summoning order on the basis of statements recorded during investigation. The case law Vishnu Kumar Tiwari (supra) cited by learned counsel for applicant does not help the applicants.
Here it would be pertinent to mention that Hon'ble Apex Court in Minu Kumari & Ors Vs. State of Bihar reported in 2006 (4) SCC 359 has observed that when final report has submitted before the Magistrate he has four options:
(i) After giving opportunity of being heard to the complainant and after applying mind to the material available in the case diary, accept final report and drop the proceeding.
(ii) After hearing the complainant and going through the record of the police report if satisfied that necessary ingredients of offence are made out on the basis of material collected during investigation the court may summon the accused straight way under Section 190(i)(b) Cr.P.C.
(iii) He may treat the protest petition of the complainant as complaint and proceed to inquire in the light of Chapter XV of Cr.P.C. and if found that there are sufficient material to proceed against the accused persons may summon the accused under Section 204 Cr.P.C. and if not, may dismiss the complaint under Section 203 Cr.P.C.
(iv) After considering the police report and material placed along with protest petition the Magistrate is of the view that further investigation is required in the matter, he may pass an order for further investigation in view of Section 173 (8) of Cr.P.C.
Thus it is apparent that in case police files final report after investigation, Magistrate has jurisdiction to treat the protest petition of informant as a complaint. In the instant case, after considering arguments raised by the learned counsel for parties and perusing the impugned complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 CrPC. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C. No such ground appears to be available to the applicant, on the basis of which the impugned complaint can be quashed going by the settled law in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 SCC (Cr.) 283.
Similarly so far as the impugned orders are concerned, perusal of material on record shows that the impugned orders have been passed by applying due procedure and no substantial illegality, perversity or any other substantial error could be pointed out. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, interalia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power cannot be exercised to stifle a legitimate prosecution. Such powers have to be exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice.
Accordingly, the prayer for quashing the impugned complaint as well as orders impugned is refused.
However, keeping in view the facts of the matter and impact of Covid-19 Pandemic, it is directed that in case applicants appear and surrender before the Court below and apply for bail within a period of 45 days from today, their bail application shall be considered and decided expeditiously in accordance with settled law. For a period of 45 days from today or till the applicants surrender before the Court below, whichever is earlier, no coercive action shall be taken against the applicants.
The party may file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
With the aforesaid direction, the application is disposed of finally.
Order Date :- 25.8.2020 S.Ali