Allahabad High Court
Rajesh Upahdyay vs State Of U.P.And Anothers. on 6 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 3604 of 2007 Applicant :- Rajesh Upahdyay Opposite Party :- State Of U.P.And Anothers. Counsel for Applicant :- Pushpila Bist,Abhishek Mishra,Ripu Daman Shahi Counsel for Opposite Party :- Govt.Advocate Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Ripudaman Shahi, learned counsel for the applicant and Ms. Jan Laxmi Senani, learned Addl. Government Advocate.
2. By means of the instant application the applicant prays for quashing of the impugned charge-sheet No.48/2007 dated 23.09.2007 and impugned summoning order dated 10.10.2007 and also the entire proceedings in Criminal Case No.1131/2007 arising out of Case Crime No. 328/2007 with Police Station Jaitpur, Ambedkar Nagar, U/S 147, 148, 149, 307, 504 & 506 IPC., pending before Judicial Magistrate, Ambedkar Nagar U.P.,
3. The aforesaid case was initiated on the basis of a first information report lodged by a Sub Inspector of Police on 18th of August 2007 against five named accused persons, including the applicant alleging that when he was engaged in patrolling on a Government Jeep, he received information from a Mukhbir that five young man, riding two motorcycles, present at Mohammadpur crossing, are carrying weapons and they might give effect to some incident. On the aforesaid information the Police Party apprehended the accused persons, whereupon the accused persons fired two gunshots towards the Police Party, however, no person received any injury due to any of the shots fired. The FIR states that the miscreants who had fired the shots were arrested and three other accused persons including the applicant ran away.
4. In the statement of the informant recorded under section 161 CrPC he reiterated the FIR version. One of the apprehended co-accused persons Ram Karan Pal stated in his statement recorded under section 151 CrPC that he and the other arrested co-accused Ved Prakash Mishra had come upon being called by the other three accused persons. He allegedly stated that he was involved in commission of offences, although the statement is that "Ham Log Apradhik Vardat Paise Ke Liye Karne Mein Lipt Rahe", but neither any specific offence, allegedly committed by the accused persons is mentioned in the statement nor the phrase "Ham Log" specifically included the present applicant.
5. The other arrested co-accused person Ved Prakash Mishra has stated that they were arrested while they were intending to commit an offence.
6. After investigation the Police submitted the chargesheet on 23rd of August 2007 and on 10th October 2007 the learned Judicial Magistrate, Ambedkar Nagar, passed an order summoning the accused persons to face trial of the offences alleged.
7. Shri R.D. Shahi, learned counsel for the appllicant has submitted that from the averments made in the First Information Report as also from the statements recorded during investigation commission of any offence by the applicant is not made out and, therefore, the chargesheet as well as the summoning order is liable to be quashed.
8. Per contra, Ms. Janlaxmi Senani, learned Addl.Government Advocate has opposed the application and she has submitted that the co-accused Ram Karan Pal has stated that all the accused persons are involved in commission of offences for earning monetary gains and, therefore, it is prima facie established that the applicant is involved in commission of offences for which a chargesheet has rightly been submitted against him and he has rightly been summoned to face trial. She has also submitted that the correctness of the allegations cannot be gone into by this court while deciding an application under section 482 CrPC.
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."
10. 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."
11. 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.'"
12. 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.]"
13. 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."
14. When we examine the material available on record at this stage in the light of the aforesaid law laid down by Hon'ble the Supreme Court, it appears that the first information report lodged by a Sub Inspector of Police alleges that five persons were intercepted on the basis of information received from a Mukhbir, two shots were fired and the persons who had fired the shots had been arrested and the other three persons including the applicant ran away. Except for having run away from the spot where the police had apprehended him, there is no other allegation against the applicant in the first information report.
15. The first informant has reiterated the first information report's version in his statement recorded under section 161 CrPC and nothing has been stated in his statement which may make out commission of offence by the applicant.
16. Although the co-accused Ram Karan Pal has made a confessional statement while he was in custody, he has also stated that the accused persons were involved in committing offences, but no particulars of any offence committed by the applicant is mentioned even in the custodial statement of Ram Karan Pal. The other arrested co-accused Ved Prakash Mishra has also not stated anything which may even prima-facie make out involvement of the applicant in commission of any offence.
17. From the aforesaid discussion it appears that there is no material on record which may make out commission of any offence by the applicant and the chargesheet has been filed in a mechanical manner. The Court below has passed the order summoning all the accused persons to face the trial without recording his satisfaction after examining the material available on record.
18. In view of the aforesaid discussion I am of the view that the instant application deserves to be allowed.
19. Accordingly the application is allowed. The charge-sheet No.48/2007 dated 23.09.2007, summoning order dated 10.10.2007 and also the entire proceedings in Criminal Case No.1131/2007 arising out of Case Crime No. 328/2007 with Police Station Jaitpur, Ambedkar Nagar, U/S 147, 148, 149, 307, 504 & 506 IPC., pending before Judicial Magistrate, Ambedkar Nagar U.P., are hereby quashed.
(Subhash Vidyarthi,J.) Order Date :- 6.1.2023 A.Nigam