Allahabad High Court
Anjali vs State Of U.P. And Another on 14 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:46487 A.F.R. Court No. - 86 Case :- APPLICATION U/S 482 No. - 40687 of 2023 Applicant :- Anjali Opposite Party :- State of U.P. and Another Counsel for Applicant :- Deelip Kumar Pathak,Rajiv Kumar Mishra Counsel for Opposite Party :- Aditya Gupta,G.A. Hon'ble Manoj Bajaj,J.
1. Applicant- Anjali has filed this petition under Section 482 Code of Criminal Procedure for quashing of Complaint No.02 of 2023, titled Ruksana Vs. Jasveer and others, under Sections 376D, 120B, 504, 506 I.P.C. and u/s 66 Information Technology Act, 2000, as well as impugned summoning order dated 14.02.2023 passed by Special Judge (POCSO Act), Mathura.
2. Briefly, the facts leading to the application are that the complainant, namely, Ruksana w/o Amajad Khan brought a criminal complaint bearing number 02 of 2023, titled Ruksana Vs. Jasveer and others, before the Special Court (POCSO Act), Mathura with the allegations that she is working as maid in Flat No.223, Krishna Kaishan, Omex Triniti, Police Station- Vrindavan, District- Mathura, where her 11 years old daughter is also residing. On 03rd January, 2023, at around 7.00 p.m., Jasveer s/o Rajendra, r/o House No.170, Post- Firozpur, Police Station- Khurza Nagar, District Bulandshahr, along with Lalit s/o Harghyan Singh, r/o Badshahpur, Siroli, Police Station Loni, District Ghaziabad, Harish Kumar s/o Daljeet Singh, r/o House No.32 Part 2, M.B. Road, Shadulljav, New Delhi and Anjali, w/o Jitendra, r/o Bahadurpur, Police Station- Parishitgarh, District Meerut came to meet her in the said flat. The complainant already knew the visitors, therefore, she did not suspect anything, who on the asking of accused Anjali went out to bring milk for preparing tea and eatables. The complainant returned at 07.30 p.m., and saw that accused- Jasveer had pulled down the bottoms (Salwar) of her daughter and was putting his fingers in her private parts, whereas accused Lalit was molesting her daughter. As per allegations accused Anjali and Harish Kumar were collectively preparing video and when complainant raised alarm, accused Anjali threatened to viral the video on internet and also abused her. The complainant saved her daughter from all the four accused persons, who while fleeing away from the spot gave threats to her. The complainant went to the police station- Vrindawan, Mathura for giving the complaint, but she was not heard, and even the Superintendent of Police, Mathura did not hear her. The complainant prayed that the accused be summoned and punished for alleged commission of offences punishable under Sections 452, 376D, 354, 504, 506 IPC, 5/6 POCSO Act and Section 67-A Information Technology Act, 2000.
3. The complaint is supported with an affidavit dated 03.02.2023 of the complainant, and further in support of the case her statement under Section 200 Code of Criminal Procedure was also recorded. Apart from this, the statement of the victim was also recorded on 6th February, 2023 as P.W.1, and upon considering the contents of the complaint and pre- summoning evidence, the trial court proceeded to issue process against the accused persons vide impugned summoning order dated 14th February, 2023. Hence, this petition.
4. On 1st December, 2023, this Court had passed the following order:
"1. Second supplementary affidavit filed today, is taken on record.
2. Heard learned counsel for the applicant and learned AGA.
3. The present 482 Cr.P.C. application has been filed to quash the summoning order dated 14.02.2023 as well as the entire proceedings of Complaint No. 02 of 2023 (Ruksana Vs. Jasveer and others), under Sections- 376D, 120B, 504, 506 I.P.C. and 66 I.T. Act, Police Station- Vrindavan, District- Mathura, pending in the court of Additional Session/ Special Judge (POCSO Act), Mathura.
4. Learned counsel for the applicant submitted that earlier applicant has lodged FIR against one Rajeev Gupta and Pradeep Mittal in which they have been arrested and later on enlarged on bail on 19.10.2022. He next submitted that after enlargement on bail, they have implanted a lady, namely, Ruksana- opposite party no. 2 for filing frivolous complaint against the applicant and three other persons, namely, Jasveer, Lalit and Harish, who are not known to applicant. He next submitted that applicant has given specific averment in the second supplementary affidavit to the facts so argued here. Lastly, he submitted that it is mischievous attempt made by Rajiv Gupta and Pradeep Mittal to drag that lady in present proceeding to pressurize the applicant to withdraw the earlier proceeding. Therefore, present proceeding is bad and liable to be set aside.
5. Put up this case as fresh on 05.01.2024.
6. Till then, further proceedings of the aforesaid case shall remain stayed against the applicant.
7. In case, allegations so levelled by the applicant is correct, it is serious matter, therefore, SSP, Mathura is directed to conduct enquiry in the matter and after enquiry, he shall file personal affidavit within three weeks about opposite party no. 2 and other allegations so levelled in the present proceeding. In case, affidavit is not filed, Court would have no option, but to pass order for personal appearance of SSP, Mathura on the next date fixed."
5. Pursuant to the above order, the personal affidavit dated 3rd January, 2024 was filed on behalf of Mr. Shailesh Kumar Pandey, Senior Superintendent of Police and the counter affidavit dated 17th January, 2024 on behalf of the opposite party no.2 was filed through counsel Sri Aditya Gupta.
6. In order to controvert the stand of the opposite party no.2, the applicant filed rejoinder affidavit dated 3rd March, 2024, wherein the averments in the counter affidavit of the complainant have been denied, and that of the main application have been reiterated to seek indulgence of this Court for quashing of the impugned criminal proceedings.
7. Learned counsel for the applicant has argued that at the instance of applicant First Information Report bearing No.05 of 2021 dated 16.09.2021 was registered against the accused persons, namely, Rajiv Gupta and Pradip Mittal and two other unknown persons for alleged commission of offence dated 25.04.2017, punishable under Sections 376D, 328, 354(c) and 506 IPC, wherein after investigation the final report u/s 173(2) Code of Criminal Procedure was submitted against the accused, and the trial is in progress. Learned counsel further submits that in order to pressurize the applicants to withdraw the said case based on police report, she has been falsely implicated through complainant- Ruksana with whom the applicant has no concern at all. Learned counsel has argued that as per allegations, four accused persons, who are residents of different cities came to the house of the complainant and committed the alleged crime, but there is nothing to suggest that how these four persons were either known to each other or for what purpose had gone to the residence of the complainant. He submits that the complaint is absolutely vague, without material particulars and is aimed to falsely implicate the applicant, but the trial court without examining it properly has proceeded to issue the process against the accused. He submits that neither the case of the applicant is supported with any medical evidence nor there is any other evidence to attract the offence punishable under Section 66 Information Technology Act, 2000. Learned counsel submits that the impugned complaint is nothing, but an abuse of the process of law, therefore, the impugned order dated 14th February, 2023 issuing process against the accused, is also wrong. He prays that the impugned proceeding be quashed, in the interest of justice.
8. Mr. Aditya Gupta, learned counsel for the respondent no.2 has vehemently opposed the prayer, who has argued that the allegations contained in the complaint do reveal commission of cognizable offences and the said complaint is further strengthened by the statements of the complainant as well as the victim, therefore, the court has passed the reasoned order issuing process against the applicant and other accused persons. Learned counsel has argued that at the stage of issuance of process, the magistrate is only required to see prima facie commission of alleged offences, and if, the said requirement is met, the process has to be issued against the accused. He submits that at this stage, the interference by this court is not warranted and in support of his contention, learned counsel has relied upon the decisions of Hon'ble Supreme Court in State of Tamilnadu Vs. Thirukkural Perumal, (1995) 2 SCC 449, as well as decision of this Court delivered in application under Section 482 Code of Criminal Procedure 10778 of 2022, Bal Kumar Patel @ Raj Kumar Vs. State of U.P. and another dated 9th December, 2022. Learned counsel prays that the application be dismissed.
9. After hearing the learned counsel for the parties and considering their submissions as well as the material on record, this Court finds that the impugned complaint against the applicant and other three accused persons, relates to an occurrence dated 3rd February, 2023, who visited the Flat No.223, Krishna Kaishan, Omex Triniti, Police Station- Vrindavan, District- Mathura where complainant is working as a maid, and her 11 years old daughter also resides with her. Strangely, the complaint is absolutely silent about the owner of the flat, much less his absence at the time of occurrence, which took place at 7.00 p.m., and further there is no averement in the complaint giving the reasons for the visit of the accused, if, they had come to meet the owner or the complainant- maid. Notably, the complainant simply mentioned that the accused were known to her, but there is nothing to suggest that how she knew them, or how all the accused being residents of different cities were known to each other. The victim (P.W.1) also in her statement clearly stated that her mother knew all the accused, and if, the victim is residing with the mother, it is not believable that the victim had previously never seen anyone of the accused persons. There is no whisper either in the complaint or in the statements of witnesses, about the motive behind this occurrence, particularly when the complainant has not at all pleaded any enmity with the accused.
10. Further, it does not appeal to prudence that if, the complainant is residing in the said flat, even the material for preparing tea is not available, as she allegedly went out to bring some milk and eatables for serving to the guests, and when she returned after half an hour she found the commission of alleged crime against her minor daughter.
11. Now, even if, for the sake of arguments it is assumed that the accused indulged in this act, it is difficult to believe that the door of the flat was left unbolted by all the four accused persons, and the complainant conveniently came inside the flat and rescued her daughter, without the assistance of any of the neighbours or anyone else in the residential complex i.e. Krishna Kaishan, Omex Triniti, Mathura. The accusations levelled in the complaint are not supported with any medical evidence, much less any averement, if, the complainant took her daughter to the doctor for examination. Thus, the allegations in the complaint and the statement of the witness fall short of the requirement of making out prima facie commission of alleged offences.
12. At this juncture, it is relevant to refer to the report dated 29.12.2023 by Praveen Malik, Circle Officer, Sadar, Mathura, wherein it is mentioned that the place of occurrence i.e. the Flat No.223, Krishna Kaishan, Omex Triniti, Police Station- Vrindavan, District- Mathura is owned by Smt. Anju Bala W/O Praveen Kumar, who is residing at Lucknow, and on enquiry from her, it was found that neither the complainant- Ruksana is known to her, nor the said flat was ever given to her. As per this report, the complainant is permanent resident of Saraimurtza Khan, District Bulandshahar, and on the said address a notice was sent through Constable Gaurav Kumar (1827) of Police Station- Vrindavan, Mathura, and it was found that she does not reside there. The Inquiry Officer has categorically observed that no complaint was ever made by Ruksana in respect of the incident dated 3rd January, 2023 either before the Chowki Omex Triniti or Police Station- Vrindavan.
13. Of course, the report dated 29.12.2023 by Praveen Malik, Circle Officer, Sadar, Mathura is silent about the stand of the applicant that the opposite party no.2 is acting at the behest of Pradeep Mithal and Rajiv Gupta, but even then the allegations contained in the complaint are highly improbable, which apparently has been drafted cleverly by only inserting the pleadings relating to the ingredients of the alleged offences, but for lack of convincing material, the same is not at all worth acceptance, muchless as a prima facie case for commission of the alleged offences.
14. By now, it is well settled law that, at the stage of issuing process against the accused under Section 204 Code of Criminal Procedure, the magistrate is required to ascertain, if, a prima facie case for alleged commission of offence(s) is made out against the accused, and if, the material on record meets the said requirement, the magistrate would be justified in passing the summoning order. A perusal of the impugned order dated 14th February, 2023, shows that the trial court has referred to the complaint and statements of the complainant, her daughter and passed the summoning order by ignoring the serious lapses in the version of the complainant, therefore, the impugned order is not sustainable.
15. Time and again, the Hon'ble Supreme Court as well as the High Court has held that issuance of the process against an accused is a serious matter and at that stage the magistrate is required to evaluate the complaint and the evidence on record carefully to record the satisfaction that it prima facie discloses commission of the alleged offence, because, if the summoning order is passed in a mechanical and a casual manner, it would lead to an unnecessary trial. Thus, the argument raised by the learned counsel for the complainant that the truthfulness of the allegations made by the complainant are to be tested during trial, is without any basis and merit. Here, it will be useful that Hon'ble Supreme Court in the case of S.W. Palantikar and others versus State of Bihar and another, (2002) 1 Supreme Court Cases 241. The relevant observations read as under:
"23. Many a times, complaints are filed under Section 200 Cr.P.C. by the parties with an oblique motive or for collateral purposes to harass, to wreck vengeance, pressurize the accused to bring them to their own terms or to enforce the obligations arising out of breach of contract touching commercial transactions instead of approaching civil courts with a view to realize money at the earliest. It is also to be kept in mind that when parties commit a wrongful act constituting a criminal offence satisfying necessary ingredients of an offence, they cannot be allowed to walk away with an impression that no action could be taken against them on criminal side. A wrongful or illegal act such as criminal breach of trust, misappropriation, cheating or defamation may give rise to action both on civil as well as on criminal side when it is clear from the complaint and sworn statements that necessary ingredients of constituting an offence are made out. May be parties are entitled to proceed on civil side only in a given situation in the absence of an act constituting an offence but not to proceed against the accused in a criminal prosecution. Hence before issuing a process a Magistrate has to essentially keep in mind the scheme contained in the provisions of Section 200-203 of Cr.P.C. keeping in mind the position of law stated above and pass an order judiciously and not mechanically or in routine manner."
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"27 ...........The approach and considerations while exercising power and jurisdiction by a Magistrate at the time of issuing process are to be in terms of Sections 200 to 203 under Chapter XV of Criminal Procedure Code, having due regard to the position of law explained in various decisions of this Court, and whereas while exercising power under Section 482 of Criminal Procedure Code the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under the Criminal Procedure Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 Criminal Procedure Code should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of the Court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 Criminal Procedure Code to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with circumspection as stated above to really serve the purpose and object for which they are conferred."
16. The decision in State of Tamilnadu Vs. Thirukkural Perumal, (1995) 2 SCC 449, relied upon by the learned counsel for complainant would not be applicable in the facts and circumstances of this case, as in the said case the prosecution of the accused was based upon the police report, and the High Court while quashing the said proceedings under Section 482 Code of Criminal Procedure had relied upon the evidence collected by Investigating Officer during investigation, therefore, the Hon'ble Supreme Court proceeded to set aside the said decision of the High Court on the ground that the said evidence was yet to be produced before the trial court. Whereas in the present case, the prosecution of the accused is based upon a complaint case and the pre-summoning evidence of the complainant and other witness is already recorded before the court.
17. Similarly, the decision in Bal Kumar Patel @ Raj Kumar Vs. State of U.P. and another, delivered by this Court on 9th December, 2022, in Application U/s 482 Code of Criminal Procedure No.10778 of 2022 relied upon by Mr. Aditya Gupta, learned counsel for the complainant only for a limited purpose to highlight the two decisions of Hon'ble Supreme Court in Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206; and Ramveer Upadhyay Vs. State of U.P. : 2002 SCC Online SC 484, which were noticed by the High Court, also does not lend any strength to his argument. In these decisions the Hon'ble Supreme Court has discussed the issue of exercise of jurisdiction under Section 482 Code of Criminal Procedure, and reiterated that it should be exercised in exceptional cases only. In one of the cases Priti Saraf (supra) the decision in State of Haryana and others Vs. Bhajan Lal and others, (1992 Suppl (1) SCC 335 has also been reiterated.
18. In State of Haryana and others Vs. Ch. Bhajan Lal and others, 1992 SCC(Cr.) 426, the Hon'ble Supreme Court had closely analysed the inherent powers contained in Section 482 Cr.P.C. and laid down clear guidelines for exercise of such power, and held that where the criminal proceedings are attended with malafide intentions, the exercise of inherent powers is justified to prevent the abuse of the process of law. The relevant portion of the decision reads as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. can be exercised by the High Court 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 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 concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of 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.
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."
19. Recently, the Hon'ble Supreme Court again followed the above view contained in the case of Bhajan Lal (Supra), in the case of Salib alias Shalu alias Salim Vs. State of U.P. and others, 2023 SCC OnLine SC 947. The relevant observations relating to exercise of inherent powers under Section 482 Cr.P.C. are reproduced hereunder:-
"27. In our opinion, the present case falls within the parameters Nos. 1, 5 and 7 resply referred to above.
28. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged."
(Emphasis Supplied)
20. Thus, in view of the above discussion, this Court has no hesitation in holding that impugned complaint filed by the opposite party no.2 against the applicant is nothing, but an abuse of the process of law, therefore this Court finds it to be a fit case for exercise of inherent powers under Section 482 Cr.P.C. Resultantly, the application succeeds and the Complaint No.02 of 2023, titled Ruksana Vs. Jasveer and others, under Sections 376D, 120B, 504, 506 I.P.C. and u/s 66 Information Technology Act, 2000, as well as impugned summoning order dated 14.02.2023 passed by Special Judge (POCSO Act), Mathura, are hereby, quashed.
21. Accordingly, the application is allowed.
Order Date :- 14.3.2024 Raj (Manoj Bajaj, J.)