Allahabad High Court
Sudhir Kumar Mishra vs The State Of U.P Thru Principal Secy. ... on 2 January, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:146 Court No. - 27 Case :- APPLICATION U/S 482 No. - 5351 of 2013 Applicant :- Sudhir Kumar Mishra Opposite Party :- The State Of U.P Thru Principal Secy. Home Lucknow And Anr. Counsel for Applicant :- Nadeem Murtaza,Syed Fazal Abbas Rizvi Counsel for Opposite Party :- Govt. Advocate Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Nadeem Murtaza and Sri Harshvardhan Kedia, the learned counsel for the applicant and Sri Rajiv Kumar Verma, the learned A.G.A.-I appearing on behalf of the State.
2. By means of the instant application filed under Section 482 Cr.P.C. the applicant has challenged the validity of the order dated 15.04.2013, passed by learned Additional Chief Judicial Magistrate-VIII, Court No.32, Lucknow in Case Crime No.472 of 2013; State Vs. Rakesh Kumar Verma and others, arising out of Case Crime No.275 of 2012, whereby the aforesaid court has taken cognizance of offence under Sections 406/420 I.P.C. and has summoned the applicant to face the trial for the aforesaid offences.
3. Briefly stated, the facts of the case are that an F.I.R. was lodged on 30.08.2012 for commission of offences under Section 406/420 IP.C. in Police Station Naka Hindola, District Lucknow against six persons, including the applicant, stating that the co-accused Rajesh Shukla @ Bhimsen Tiwari had assured to get the complainant's son employed and he had demanded Rs.23,000/- from the complainant's son, which amount was paid to him. Thereafter, the aforesaid co-accused person demanded further sums of money and as per his demand Rs.25,000/- were deposited in the applicant's account on 08.12.2011. The complainant's son could got employed. The complainant made enquiries and he came to know about the applicant who is the holder of account in which the aforesaid amount was deposited and the applicant told him that the co-accused J.P. Awasthi, who is a property dealer, had used his account for transfer of money and he had withdrawn the same and handed over the same to the aforesaid co-accused. The complainant met the co-accused J.P. Awasthi and demanded refund of his money and J.P. Awasthi redirected the complainant to go to Rajesh Shukla @ Bhimsen Tiwari.
4. In the statement of the complainant recorded during investigation, he reiterated the F.I.R. version and he did not allege commission of any act by the applicant apart from Rs.25,000/- having been deposited by the complainant in the applicant's bank account.
5. The statement of co-accused J.P. Awasthi was also recorded by the Investigating Officer who stated that Bhimsen Tiwari had borrowed Rs.35,000/- from him and he had demanded two bank account numbers for refund of the aforesaid borrowed money. J.P. Awasthi had given bank account number of the applicant and co-accused Rakesh Kumar Verma. He categorically stated that he was not involved in any manner in commission of any offence.
6. After completion of investigation a charge sheet no.25/13 was submitted on 28.02.2013 against three persons, including the applicant and the learned trial court took cognizance of the offence on 15.04.2013 by a non-speaking order, which merely states "??????? ???? ???, ???? ??????? ??". The applicant was summoned to face the trial by means of an order dated 15.04.2013 itself.
7. The learned counsel for the applicant has submitted that the allegations levelled in the F.I.R. or in the statements of complainants and other witnesses recorded by the Investigating Officer do not make out any act by the applicant. The unilateral deposit of some amount by the complainant in the applicant's bank account, without the applicant having demanded any money from the complainant and without any allegation that the applicant had promised to do any act in return of the money deposited in his account and he failed to perform that act, does not make out commission of any offence.
8. 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.
9. 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.'"
10. In Geo Varghese Vs. State of Rajasthan reported in 2021 SCC Online SC 873, 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.
11. From the material placed before the Court, it appears that the complainant has not made any allegation of any demand having been made by the applicant. The complainant did not even know the applicant. He deposited some money in the applicant's bank account under instructions of a co-accused person, without intervention of the applicant.
12. In such circumstances, it cannot be said that the complainant had entrusted any amount to the applicant.
13. Moreover, there is no allegation of the applicant having deceived the complainant or to have induced or to deposit the money in his bank account. Therefore, the offence of 'cheating' as defined under Section 415 I.P.C. is also not made out against the applicant on the basis of allegations leveled in the F.I.R. or on the basis of statements recorded during investigation.
14. In view of the aforesaid facts and circumstances, when the alleged offences are not made out against the applicant on the basis of allegations levelled in the F.I.R. or on the basis of statements of witnesses recorded during investigation, this court is of the considered opinion that the the present case falls under Categories (1) & (2) mentioned in the case of Bhajan Lal (supra) and the applicant cannot be made to face the trial of an offence which is not made out on the basis of allegations levelled in the F.I.R. and material collected during investigation. The applicant being made to face the trial for an offence which is not made out against him on the basis of prosecution case itself would result in failure of justice to the applicant.
15. Accordingly, the application is allowed. The order dated 15.04.2013, passed by learned Additional Chief Judicial Magistrate-VIII, Court No.32, Lucknow in Case Crime No.472 of 2013; State Vs. Rakesh Kumar Verma and others, Case Crime No.275 of 2012, whereby the aforesaid court has taken cognizance of offence under Sections 406/420 I.P.C. and summoned the applicant to face the trial and the entire proceedings of the aforesaid are quashed.
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(Subhash Vidyarthi, J.) Order Date :- 2.1.2024 Ram.