Allahabad High Court
Kanwar Pal Singh vs State Of U.P. And Anr on 22 July, 2019
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 28020 of 2019 Applicant :- Kanwar Pal Singh Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ramesh Kumar Saxena,Vishnu Pratap Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Heard Sri Ramesh Kumar Saxena, learned counsel for the applicant, Sri Sanjay Singh, learned A.G.A. for the State-respondents and perused the material on record.
This application u/s 482 Cr.P.C. has been filed with the prayer to quash the instant criminal prosecution of the applicant in Criminal Case No. 403 of 2019 (State vs. Kanwar pal Singh), under Section 379 IPC, Rule 3/57/7 of U.P. Miner and Mineral (Concession) Rules 1963, under Section 4/21 of Mines and Mineral (Regulation & Development) Act, 1957 and under Section 3/4 of Prevention of Damage to Public Property Act, 1984, arising out of Cime No. 289 of 2018, P.S. Vindyachal, District Mirzapur, pending in the court of Chief Judicial Magistrate, Mirzapur along with order dated 08.02.2019 of Chief Judicial Magistrate, taking cognizance of the case and summoning the applicant for trial.
It has been argued by the learned counsel for the applicant that applicant has not carried out any illegal or unauthorized mining operation, rather he was granted two separate mining lease for 5 years and thus no cognizable offence is made out against the applicant. It was further argued that in view of Section 22 of Mines and Mineral Act, 1957, no FIR can be lodged under the provision of that Act as in such matters cognizance can only be taken on the complaint made by the person authorized in this behalf and thus, the impugned proceedings are abuse of the process of law. Learned counsel for the applicant has cited case of State of NCT of Delhi vs. Sanjay (2014) 9 SCC 772.
Per contra, learned A.G.A. has submitted that from the perusal of the allegations made in the impugned F.I.R. and material on record, it cannot be said that no cognizable offence is made out, hence the impugned proceedings or impugned order is not liable to be quashed.
The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. Guidelines are as follows:
(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 to 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 156(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 every 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 a specific provision in the Code or the concerned Act, 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."
In the case of R. Kalyani v. Janak C. Mehta and Others reported in 2009 (1) SCC 516, the Hon'ble Apex Court has held as under:
(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
The said decision has also been followed by the Apex Court in the case of Kamlesh Kumari and Ors. v. State of U.P. and Ors. reported in 2015 AIR SCW 3700.
Keeping in view the above stated settled position of law in the instant case, perusal of record shows that there are allegations against the applicant that applicant was indulging in illicit mining and theft of sand. In view of the allegations made in the FIR and material collected during investigation, it cannot be said that no cognizable offence is made out against the applicant. In the case of State of NCT of Delhi vs. Sanjay 2014 AIR SCW 5487 cited by the learned counsel, it was held that in a case where there is theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. Further in the case of Rishipal vs. State of U.P. Crl Misc. W.P. No. 12052 of 2010, a Division Bench of this Court has held as under.
"In the facts and circumstances stated above, since the applicant has been charged with offence under Section 379 IPC besides the offences under Section 3/21 of the Mines and Minerals (Regulation and Development) Act, 1957, under Rules 3/57/70 of the U.P. Mines Mineral (Concession) Rules, 1953 and Section 2/3 of the U.P. Gangsters Act, which are cognizable offences, we have no reason to take a view different from the view taken by the Apex Court in State of Orissa (supra) and other decisions."
The above stated case laws are applicable in the present case and in view of that legal position, impugned charge-sheet and proceedings arising from it, are not liable to be quashed on the grounds raised by the learned counsel for the applicant. It is apparent from the FIR and material on record that a prima facie cognizable offence is made out against the applicant. The case of the applicant does not fall in any of the category enumerated by the Apex Court through various judicial pronouncement for quashing of FIR. It is well settled that at this stage, this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the proceedings deserves quashing.
As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of FIR or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In case of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the proceedings cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Section 482 Cr.P.C.
In State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCCp. 550, para 11) "11......It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."
From the above stated case law it is apparent that adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can not be held that the impugned criminal proceeding are manifestly attended with mala fide and 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.
The submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. In view of the aforesaid, no case for quashing the impugned proceedings or impugned order is made out. The petition lacks merit and thus, liable to be dismissed.
The instant application is dismissed.
Order Date :- 22.7.2019 A. Tripathi