Allahabad High Court
Shahab @ Mohd. Shezad vs State Of U.P. And Another on 9 January, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 422 of 2023 Applicant :- Shahab @ Mohd. Shezad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jamaluddin Mohd. Nasir,Mohd Nazam Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Learned counsel for the applicant is permitted to make necessary correction in the name of the applicant.
3. Heard Shri Jamaluddin Mohd. Nasir, learned counsel for the applicant, Shri B.B Upadhyay, learned counsel for the State and perused the material brought on record.
4. The present application under Section 482 Cr.P.C. has been filed by the applicant-Shahzad @ Mohd. Shezad with the following prayers:-
"It is, therefore, most respectfully prayed that the Hon'ble Court may graciously be pleased to allow this application and quash the entire proceeding of Complaint Case no. 2448 of 2022 under section 354 (Kha), 323, 504, 506, I.P.C., of P.S. Bachhraon, District Amroha alongwith summoning order dated 19.9.2022 pending before the court of learned first Additional Civil Judge (S.D.) First/ A. C.J.M. Amroha.
It is further prayed that during the pendency of this application before this Hon'ble Court, stay the further proceeding of Complaint Case no. 2448 of 2022 under section 354 (Kha), 323, 504, 506, I.P.C., of P.S. Bachhraon, District Amroha alongwith summoning order dated 19.9.2022 pending before the court of learned first Additional Civil Judge (S.D.) First/ A. C.J.M. Amroha."
5. A complaint dated 30.7.2022 was filed by the opposite party no.2 against the applicant and her statement under Section 200 Cr.P.C. was recorded. Smt. Mushtar was interrogated as C.W-1 under Section 202 Cr.P.C. and Anjum Parveen was interrogated as C.W-2 under Section 202 Cr.P.C.. Subsequently the trial court vide order dated 19.9.2022 summoned the applicant under Section 354(Kha), 323, 504, 506 IPC to face trial.
6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is the devar of the opposite party no.2. It is argued that the present complaint is with malafide intention in order to falsely implicate and harass the applicant. The opposite party no.2 had marital discord regarding which previously a case under Section 498-A IPC and other Sections was lodged by her against her husband and in-laws. Subsequently present case has been filed against the applicant. The falsity of the present case is apparent from the fact that the complaint was filed on 30.7.2022 but in the complaint, complainant has stated that she gave an application to the Superintendent of Police, Amroha and other higher officials through registered post on 1.12.2022. She has reiterated the same in her statement under Section 200 Cr.P.C. It is argued that the same would go to show the falsity of the case in itself as the complaint was filed five months prior to the said date. It is argued that the applicant has been granted bail by the court concerned. It is further argued that the present case is a case of no injury, para 10 of the affidavit has been placed before the Court, as such the proceedings are an abuse of process of Court.
7. Per contra, learned counsel learned counsel for the state opposed the prayer for quashing and argued that the applicant is the sole accused in the present case. There are serious allegations against him of capturing nude photograph and video of the complainant, threatening her with a country-made pistol, throwing her on a bed, committing rape, assaulting her and then threatening her of launching the same on the internet. The applicant is the devar of the opposite party no.2. There are no chances of false implication. In so far as the date as mentioned in the complaint and the statement of the complainant being of December, 2022 is concerned, the same appears to be an error as the complaint was filed in July, 2022 and as such there was no occasion for stating of any subsequent event of a date which was later by five months. The present petition be dismissed as such.
8. After having heard learned counsel for both the parties and perusing the records, it is evident that the applicant is the sole accused who is the devar of the complainant. There are no chances of false implication. There are serious allegations against him. The applicant is stated to have threatened the complainant through a country-made pistol. Further there are allegations for enraging the modesty of the complainant and capturing nude photograph and video. This Court does not find any irregularity or illegality in the summoning order.
9. It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; State of Bihar Vs. P. P. Sharma : 1992 Supp (1) SCC 222; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Zandu Pharmaceuticals Works Ltd. Vs. Mohammd Shariful Haque : (2005) 1 SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava : (2009) 9 SCC 682; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Md. Allauddin Khan Vs. State of Bihar : (2019) 6 SCC 107; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706; Rajeev Kourav Vs. Balasaheb & others : (2020) 3 SCC 317; Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467, that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint /FIR / charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.
10. In the case of Pepsi Foods Ltd. v. Special Judicial Magistrate : (1998) 5 SCC 749, the Apex Court relying upon the ratio laid down by it in Bhajan Lal's case (supra) has held that powers under Section 482 Cr.P.C. have to be exercised with due care and caution. It has been observed as under:
"22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this court examined the extraordinary power under article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers."
(emphasis supplied)
11. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows:
"23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.
24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debated before this Court and various High Courts. Though in a series of decisions, this question has been answered on several occasions by this Court, yet the same still comes up for consideration and is seriously debated.
25. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:-
"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."
26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.
27. It has been further elucidated recently by this Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.
28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception."
12. In the case of Ramveer Upadhyay Vs. State of U.P. : 2002 SCC Online SC 484 the Apex Court has held in paragraphs 27, 38 and 39 that quashing of a criminal case by execising jurisdiction under Section 482 Cr.P.C. should be done in exceptional cases only. It was further held that crminal proceedeings cannot be nipped in the bud. Paragraphs 27, 38 and 39 are quoted herein:
"27. Even though, the inherent power of the High Court under Section 482 of the Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C is not to be exercised for the asking.
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38. Ends of justice would be better served if valuable time of the Court is spent on hearing appeals rather than entertaining petitions under Section 482 at an interlocutory stage which might ultimately result in miscarriage of justice as held in Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474.
39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C."
13. Further in the case of Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 in para 49 the Apex Court has held as under:
"49. In exercise of power under section 482 of the Cr.P.C., 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence."
14. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while excercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.
15. Looking to the facts of the case, the prima facie allegation against the applicant and the law as stated above, no case for interference is made out. The present application under Section 482 Cr.P.C. is thus dismissed.
(Samit Gopal, J.) Order Date :- 9.1.2023 Gaurav