Allahabad High Court
Vikas Saxena vs Central Bureau Of ... on 7 February, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- U/S 482/378/407 No. - 769 of 2020 Applicant :- Vikas Saxena Opposite Party :- Central Bureau Of Investigation,Spl.Crime Branch,Lko. & Anr. Counsel for Applicant :- K.K. Sharma,Kaustubh Singh,Vishal Tahlani Counsel for Opposite Party :- A.S.G. Hon'ble Chandra Dhari Singh,J.
The instant petition under Section 482 of Cr.P.C. has been filed with the following prayers:
"(i) to quash the Prosecution Sanction (Annexure No.1) granted by the State Government vide Letter No.561/ 6-Pu-1-14-400 (10)/ 2013 dated 13.06.2014 to prosecute the petitioner and other accused persons named therein except Shri J. Ravindra Gaur.
(ii) to quash the order of the cognizance taken in the Sessions Trial No.321/2009 by the CBI Court and
(iii) to quash the charge dated 23.05.2018 framed against the petitioner Vikas Saxena, Mula Singh, Virendra Sharma, Devendra Kumar Sharma, R.K. Gupta and Anil Kumar under Section 120-B read with Section 193 of the Indian Penal Code and 120-B read with Section 218 of the Indian Penal Code and also to quash the charge dated 23.05.2018 framed against Gauri Shanker Vishwakarma and Jagveer Singh under Section 304 (II) read with Section 34 of the IPC and under Section 120-B read with Section 193 of the IPC and Section 120-B read with Section 218 of the IPC.
(iv) to quash the entire proceedings of the Sessions Trial being conducted in the Court of Special Judicial Magistrate-I, CBI, Lucknow in the Sessions Trial No.321 of 2009, under Section 34/ 304 - (II) and Section 120-B, 193 and 218 of Indian Penal Code, P.S. CBI, SCB, District Bareilly.
(v) to pass any other such order which this Hon'ble Court deems fit and proper in the nature and circumstances of the case."
Learned Counsel for the petitioner has submitted that on the information flashed on the wireless by Sri J. Ravindra Gaur, the then Additional Superintendent of Police, Bareilly, the petitioner and sub-Inspector Sri Mula Singh along with other police officials reached at Ruqumpur Railway Crossing and asked the gate man Budh Sen to close the railway gate. After some time, one Tata Sumo reached the Railway Crossing and seeing the petitioner and other police officials opened fire. Sri Ravindra Gaur, Additional Superintendent of Police warned the persons to stop firing but they continued with the firing and therefore, the Additional Superintendent of Police directed the gunner Gauri Shanker Vishwakarma for firing in self defence and in retaliatory firing by the applicant, one miscreant Muku Gupta had died by the bullet of Gauri Shanker Vishwakarama the gunner and another miscreant Pankaj Mishra alias Karan was injured. Other miscreants had run away and the driver of Tata Sumo surrendered before the police.
Learned Counsel for the petitioner has further submitted that thereafter an FIR in Case Crime No.545 of 2007, under Sections 307 IPC at Police Station Fatehganj, District Bareilly was registered. Another FIR in Case Crime No.546 of 2007, under Section 25 Arms Act was registered against Pankaj Mishra @ Pankaj Karan, Mukul Gupta and others unknown persons. After investigation, a charge-sheet in Case Crime No.545 of 2007 was submitted against Pankaj Mishra @ Pankaj Karan under Section 307 IPC whereas in Case Crime No.546 of 2007 final report was submitted by the police on account of death of Mukul Gupta. In trial, the accused Pankaj Mishra @ Pankaj Karan was convicted and sentence.
Learned Counsel for the petitioner has next submitted that the father of Mukul Gupta who died in encounter moved an application under Section 156 (3) of Cr.P.C. before the learned Magistrate, which was dismissed. The father of Mukul Gupta had filed compliant to the higher court and get a direction for lodging of the FIR. Thereafter a case was registered in Case Crime No.571 of 2008, under Sections 302, 201, 120-B IPC, Police Station Fatehganj, District Bareilly against the petitioner and other police officials. The investigation of the case was transferred to the CBI in pursuance to the order dated 26.02.2010 passed in Criminal Misc. Writ Petition No.20275 of 2008. After transferred of the investigation, the CBI lodged an FIR against the petitioner and other five police officials in Case Crime No.RC-6(S) of 2010, under Section 34/ 304 - (II) and Section 302 IPC. After concluding the investigation, the CBI, SCB, Lucknow submitted charge-sheet against the constable Gauri Shanker Vishwakarma and Constable Jagveer Singh under Section 34/ 304 - (II) and Section 120-B, 193, 218 IPC and against the petitioner and other accused persons under Sections 120-B, 193 and 218 IPC.
Learned Counsel for the petitioner has submitted that on the charge-sheet submitted by the CBI, the court concerned has taken cognizance without any material. In support of his contention, learned Counsel for the petitioner has placed reliance upon the case rendered in the case of Umesh Kumar Vs. State of Andhra Pradesh and another; (2013) 10 SCC 591 and submitted that the entire proceedings initiated against the petitioner is gross misuse of the process of the Court and also the same has been initiated with mala fide intention, therefore, it is a fit case to quash the entire proceedings.
Per contra, Sri S.B. Pandey, learned Assistant Solicitor General of India and Senior Advocate assisted by Sri Varun Pandey, learned Advocate has submitted that there are sufficient material against the petitioner for taking cognizance and, therefore, the learned Magistrate has taken cognizance. On the instructions received, he has also submitted that the discharge application of the petitioner has already been rejected by the concerned court but the said fact has not been disclosed by the petitioner in the instant petition. The said facts has not been denied by the learned Counsel appearing for the petitioner.
Learned Counsel for CBI Sri Pandey has further submitted that since the court below has already rejected the discharge application of the petitioner after perusing the case diary and other documents and evidence collected by the Investigation Officer and found that prima facie case is made out against the petitioner for framing of charges.
There is no ground for invoking extraordinary jurisdiction under Section 482 of Cr.P.C. The other facts stated by learned Counsel for the petitioner is matter of trial and the same cannot be adjudicated at this stage.
I have considered the submissions of learned Counsel for the parties and perused the record.
It is admitted case that the cognizance has already been taken by the CBI Court. While filing the instant petition, the petitioner has not disclosed that the discharge application has already been rejected by the learned court below. The only argument of the petitioner is that the entire proceedings initiated against the petitioner is a malicious proceedings and total gross misuse of the process of the law.
Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by the Hon'ble Supreme Court. In Inder Mohan Goswami v. State of Uttaranchal; (2007) 12 SCC 1, Hon'ble Supreme Court observed:
?23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.?
Hon'ble Apex Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where, ?102.(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).
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(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 deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v. State of Maharashtra; 2018 SCC Online SC 3100:
?13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers.?
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the petitioner's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the petitioner arising out of him as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as I do not see any abuse of the court's process either.
Accordingly, the present application is dismissed.
Order Date :- 7.2.2020 akverma