Allahabad High Court
Abdul Haleem And Others vs State Of U.P. Thru Prin Secy Home Lko And ... on 3 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 9763 of 2022 Applicant :- Abdul Haleem And Others Opposite Party :- State Of U.P. Thru Prin Secy Home Lko And Another Counsel for Applicant :- Irfan Alam Counsel for Opposite Party :- G.A. Hon'ble Subhash Vidyarthi,J.
Heard Sri Irfan Alam, learned counsel for the applicants and Sri Hari Shanker Bajpayee, learned A.G.A. for the State. as also Sri Rohit Yadav, learned counsel for the opposite party no. 2.
By means of the instant application the applicants have challenged the summoning order dated 24.3.2022 passed by the Chief Judicial Magistrate, Balrampur in Case No. 771 of 2022, State vs. Abdul Haleem and others, arising out of Case Crime No.0011 of 2021 under sections 147, 352, 452, 323, 504, 506 and 427 IPC, PS Kotwali Nagar, District Balrampur and also the chargesheet dated 15.2.2021, contained as annexure Nos. 1 and 2 to the application.
A perusal of the records indicates that after the first information report was lodged on 8th of January 2021 the Police conducted an investigation and an 18.3.2021 the Circle Officer (City), Balrampur had issued a direction to the Inspector-in-charge, PS Kotwali Nagar, for getting further investigation carried out by some other investigating officer. After completion of the investigation chargesheet has been forwarded on 9.2.2021 and the Magistrate has passed an order on 24.3.2022 taking cognizance of the case and an order has been passed summoning the petitioner to face the trial.
Learned counsel for the applicants has submitted that the dispute involved in the present case is purely of a Civil nature and the applicants have been falsely implicated in this case.
The first information report lodged against the applicants contains allegations that on 7.1.2021 at about 7 p.m. all the applicants had attacked the informant because of an old animosity and when the informant ran inside his home to save himself, all the accused persons entered his house and beaten him up with kicks and fists and they broke down the informant's wrist-watch. During investigation evidence of several persons was recorded and after further investigation by another investigating officer the police submitted charge-sheet.
Learned counsel for the applicants has assailed the charge sheet and the summoning order on the ground that the applicants have been falsely implicated and the dispute is of a Civil nature.
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."
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.'"
A bare perusal of the first information report indicates that the allegations clearly make out a case of commission of offences punishable under the Indian Penal Code. The correctness of allegations cannot be adjudicated while deciding an application under section 482 CrPC and that would lie within the jurisdiction of the trial court. The instant application lacks merits and is accordingly dismissed.
Since charge sheet has been filed in the aforesaid case crime number wherein the punishment is upto seven years, therefore, it is expected from the learned court below to abide by the dictum of the Hon'ble Apex Court in re; Satender Kumar Antil vs. CBI and others, Special Leave to Appeal (Criminal) No.5191 of 2021, as the law propounded by the Apex Court is the law of land and everyone is duty bound to follow such law in its letter and spirit. It is also observed that the present applicants shall also cooperate with the trial proceedings properly.
(Subhash Vidyarthi, J.) Order Date :- 3.1.2023 A.Nigam