Allahabad High Court
Kanchan @ Srimati Kanchan Verma And ... vs State Of U.P. Thru. Secy. Home Lko. And ... on 5 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 9946 of 2022 Applicant :- Kanchan @ Srimati Kanchan Verma And Others Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another Counsel for Applicant :- Ravi Kumar Verma,Kunj Bihari Pandey,Shivendra Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Ravi Kumar Verma, learned counsel for the applicants and Sri Tilak Raj Singh, learned Addl. Govt. Advocate for the State.
2. The applicants have sought quashing of the entire case No. 7663 of 2019, State of U.P. V/S Devi Prasad and Others, arising out of Case crime no. 118/2018, pending in the court of learned Additional Chief Judicial Magistrate-II, District - Sitapur, Uttar Pradesh, as well as Summoning Order dated 15.07.2018 U/S- 323, 504, 336 I.P.C., contained as Annexure Nos. 1 & 2 to the application.
3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 13.5.2018 against five named accused persons alleging that on 11.5.2018 at about 7.00 p.m. the accused persons put a thatched-roof (Chappar) in front of the informant's Sahan and in the dispute that followed the accused persons entered the informant's house and assaulted them with sticks, kicks and fists. The report of medico-legal examination of the injured Munni Devi, conducted on 13.5.2018, mentions a lacerated wound on Right frontal area, above Right eye-brow; a lacerated wound on the forehead, just above the left eye-brow; and a contusion; and all the injuries have been found to be simple in nature and to have been caused by some hard land blunt object.
4. The medico-legal examination report of the injured Dinesh indicates that he was examined on 16.5.2018 and the Doctor has reported a lacerated wound on the left side of forehead; a lacerated wound on mid-forehead; an abrasion on shoulder; a lacerated wound on Right middle finger and swelling on left hand. The Doctor has opined that all injuries are simple in nature, caused by hard and blunt object and were about 3-4 days old.
5. During investigation the Investigation Officer (I.O.) recorded the statements of the injured Munni Devi and her injured husband Dinesh Kumar Verma. After investigation the Investigating Officer (I.O.) has submitted a chargesheet and the learned court below has taken cognizance of the case and summoned the applicant to face trial for the offences alleged.
6. Learned counsel for the applicants has submitted that as the Doctor has opined on 16.5.2018 that injuries of the injured Dinesh were about 3-4 days old, it establishes that the applicants have been falsely implicated, as the incident is alleged to have taken place on 12.5.2018.
7. The Doctor's opinion is an Expert's opinion, which cannot be sole basis for decision of the case. The Doctor has opined by estimation that the injuries were about 3-4 days old and there is no conclusive opinion that the injuries were positively not five days old. This opinion cannot be a ground to take a conclusive view regarding genuineness of the allegations at this stage. The learned counsel for the applicant has further submitted that initially five persons, including one Nem Kumar Verma, had been named in the F.I.R., but subsequently in the statements of the informant as also of her husband both of them stated that several persons had come at the time of incident to intervene and a former Pradhan of the village Nem Chandra Verma was also there, who normally used to help the persons, and therefore, his name had also been mentioned, but Nem Chandra Verma was not involved in beating and assaulting, from which it is established that the statements of the informant and that of her husband do not inspire confidence and the prosecution initiated on the basis of such statements is liable to be quashed.
8. I have considered the aforesaid facts and circumstances of the case.
9. The Hon'ble Supreme Court in the case State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, has laid down certain guidelines for exercise of jurisdiction under Section 482 Cr.P.C. 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:
a.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.
a.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.
a.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.
a.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.
a.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.
a.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.
a.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."
After laying down the principles for exercise of the discretionary powers under Section 482 Cr.P.C. in Bhajan Lal (supra), the Hon'ble Supreme Court proceeded to add a word of caution in the following words: -
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
10. 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.'"
11. In N. Soundaram v. P.K. Pounraj, (2014) 10 SCC 616, the Hon'ble Supreme Court has been pleased to explain the principles governing exercise of power under Section 482 in the following manner: -
"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora (2013) 10 SCC 581.]
12. In Kaptan Singh vs. State of Uttar Pradesh and Others; (2021) 9 SCC 35, the Hon'ble Supreme Court was pleased to hold that while deciding an application under Section 482 Cr.P.C., the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducing the trial. The Hon'ble Supreme Court referred to its earlier pronouncements in Dineshbhai Chandubhai Patel vs. State of Gujrat; (2018) 3 SCC 104 in which it was held that "in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. In the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra; (2019) 18 SCC 191 after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C."
13. What transpires from the material available on record before the Court at this stage is that the applicant and her husband both have received numerous injuries in the incident and both of them have said that the incident had been caused by the applicant. After investigation the Investigating Officer found the allegations against the applicants to be established on the basis of material collected during investigation and accordingly it has been submitted and the Court has taken cognizance of the case. Mere difference of one day in the actual age of injuries and that opined by the Doctor on estimation, is not sufficient to enable the Court to record a categorical finding at this stage that since the Doctor has opined the injuries to be about four days old, it could not support the incident that occurred 5 days prior to conducting the medico-legal examination.
14. In view of the aforesaid discussion, I am not inclined to interfere with the chargesheet, the summoning order and the proceedings in exercise of powers under section 482 CRPC. The application lacks merit and is accordingly dismissed.
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(Subhash Vidyarthi, J.) Order Date :- 5.1.2023/A.Nigam