Allahabad High Court
Lal Bahadur Mishra And Others vs State Of U.P. And Another on 24 November, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 92 Case :- APPLICATION U/S 482 No. - 10465 of 2009 Applicant :- Lal Bahadur Mishra And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sumit Goyal Counsel for Opposite Party :- Govt. Advocate,S.R. Verma Hon'ble Sameer Jain,J.
Case called out in the revised list. None is present on behalf of the opposite party No. 2 even in the revised call.
Heard Sri Sumit Goyal, learned counsel for the applicants; Sri M.P.S. Gaur, learned AGA for the State-respondent and perused the record of the case.
The present Application u/s 482 Cr.P.C. was filed by the applicants for quashing the charge sheet and proceedings of Case No. 2507 of 2008 under Section 504 IPC, P.S. Barra, District Kanpur Nagar arising out of case crime No. 287 of 2007 pending before ACMM-Ist, Kanpur Nagar.
As per prosecution case, on 29.6.2007 FIR of the present case was lodged under Sections 452, 323, 504, 506 IPC at P.S. Barra, District Kanpur Nagar with the allegation that on 19.4.2006 at about 8 am in the morning, applicants entered in the house of opposite party No. 2 and started beating him and when neighbours intervened then they went back to their home after abusing and threatening him. After investigation, charge sheet against the applicants was filed only under Section 504 IPC. Learned Magistrate took cognizance on 2.5.2008 and issued summons to the applicants.
Learned counsel for the applicants contended that although initially FIR of the present case was lodged against the applicants under Sections 452, 323, 504, 506 IPC and during investigation, allegation in respect of Sections 452, 323, 506 IPC were found false and charge sheet against the applicants was submitted only under Section 504 IPC and, therefore, this fact clearly suggests that the FIR of the instant case was lodged against the applicants with malafide intention on false facts and without proper investigation, Investigating Officer submitted charge sheet against the applicants. He further contended that Section 504 IPC is non-cognizable offence, therefore, as per the explanation to Section 2(d) of Criminal Procedure Code, a charge sheet under Section 504 IPC could not be filed and neither cognizance could be taken on such charge sheet.
Learned counsel for the applicants further submitted that earlier on 19.4.2006, FIR was lodged by applicant No. 1 against the opposite party No. 2 and his family members under Sections 306, 504, 506 IPC in respect of death of his daughter and in this case opposite party No. 2 is facing trial. He next contended that earlier opposite party No. 2 also moved an application under Section 156(3) Cr.P.C. against the applicants in respect of the death of his own daughter of applicant No. 1, which was rejected on 11.6.2007 and after rejection of application moved under Section 156(3) Cr.P.C., opposite party No. 2 after two weeks filed FIR of the present case, on false facts.
Learned counsel for the applicants lastly argued that as per prosecution version, the present incident took place on 19.4.2006 while the FIR was lodged on 29.6.2007, thus, there is an inordinate delay of more than one year in lodging the FIR of the present case, therefore, on this ground alone, the impugned charge sheet as well as proceedings pending against the applicants, is liable to be quashed.
Per contra, learned AGA contended that prima facie FIR and the evidence collected by Investigating Officer during the course of investigation discloses offence under Section 504 IPC, therefore, neither charge sheet nor proceedings pending against the applicants should be quashed. He further contended that the charge sheet filed under Section 504 IPC can very well be treated as a complaint according to the explanation of Section 2(d) of Criminal Procedure Code and, therefore, taking cognizance on the charge sheet can very well be rectified by learned Magistrate. Learned AGA further submitted that merely on the ground of malafide intention a criminal proceeding cannot be quashed and neither delay in lodging the FIR is very material at this stage and, therefore, present application is devoid of merit and is liable to be dismissed.
I have given anxious consideration on the rival contentions advanced by learned counsel for the parties and perused the record of the case.
The scope of Section 482 Cr.P.C. has been very elaborately discussed by Hon'ble Supreme Court in case of State of Haryana and others Vs. Bhajan Lal and others reported in [1992 Supp (1) SCC 335] and in paragraph 102 enumearated 7 categories of the cases where power under Section 482 Cr.P.C. can be exercised which is quoted as follows:-
"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.
(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 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 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 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."
Very recently three Judge Bench of the Hon'ble Apex Court in M/s. Neeharika Inrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in [AIR 2021 Supreme Court 1918] also discussed the scope of Section 482 Cr.P.C. and Article 226 of Constitution of India in very detail manner and in paragraph-23 arrived at final conclusion as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied.
As per the judgement of Hon'ble Apex Court in the case of Bhajan Lal (supra), seven categories have been narrated on the basis of which a proceeding under Section 482 Cr.P.C. can be quashed. As per category No. 7, a criminal proceeding which 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 then it can very well be quashed. These seven categories described in the case of Bhajan Lal (supra) have been approved by the Hon'ble Supreme Court in the case of M/s Neeharika Infrastructure (supra) in Conclusion No. XIV.
Hon'ble Apex Court in the case of Vineet Kumar versus State of U.P. reported in [2017(5) ADJ 438 (SC)] while quashing the entire criminal proceedings on the basis of category No. 7 enumerated in the case of Bhajan Lal (supra) observed in paragraph No.-39 as follows:-
39. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana V. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana Vs. Bhajan Lal, which is to the following effect:
"(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."
Therefore, it is very well settled that criminal proceedings maliciously instituted with ulterior motives can be quashed by this Court while exercising the power under Section 482 Cr.P.C.
In the present case, a FIR was lodged by the applicant No. 1 against the opposite party No. 2 and his family members regarding death of his daughter and for which opposite party No. 2 is facing trial and further on 11.6.2007, application moved by him against the applicants under Section 156 (3) Cr.P.C. was dismissed. Thus, it is apparent that O.P. No. 2 wanted to save his skin from the case registered by applicant No. 1 against him and his family members u/s 306 IPC in respect of the death of the daughter of applicant No. 1 and also wanted to drag applicants in that case and he with malafide intention and ulterior motive after more than one year, lodged the FIR of the present case. Therefore, on the ground of malicious prosecution, present application in view of category No. 7 of Bhajan Lal (supra) can succeed.
Further as per prosecution, applicants entered in the house of opposite party No. 2 and started beating him and on the intervention, they returned back and while returning, they abused and threatened him too. But during investigation, allegation in respect of house trespass and beating as well as of threatening was found false. Thus, in my considered view when during investigation, genesis of occurrence was found false then ancillary incident cannot stand alone. Therefore, chargesheet filed only u/s 504 IPC and proceeding against applicants in pursuance of that chargesheet is bad.
In the result, the present application u/s 482 Cr.P.C. is allowed and the impugned charge sheet as well as proceedings in Case No. 2507 of 2008 under Section 504 IPC, P.S. Barra, District Kanpur Nagar arising out of case crime No. 287 of 2007 pending before ACMM-Ist, Kanpur Nagar, is hereby quashed.
Order Date :- 24.11.2021 Ankita