Allahabad High Court
Shashank Gupta Director M/S Shree Hari ... vs State Of U.P. Thru. Addl. Chief Secy. ... on 21 February, 2023
Bench: Ramesh Sinha, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 1281 of 2023 Petitioner :- Shashank Gupta Director M/S Shree Hari Realtech And Another Respondent :- State Of U.P. Thru. Addl. Chief Secy. Civil Secrett. Lko. And Others Counsel for Petitioner :- Ripu Daman Shahi Counsel for Respondent :- G.A.,Abhinav Mishra,Ganga Prasad Mishra Hon'ble Ramesh Sinha,J.
Hon'ble Narendra Kumar Johari,J.
(1) Vakalatnama filed on behalf of the petitioners by Sri Kapil Mishra, Advocate, is taken on record.
(2) Heard Shri Jyotindra Mishra, learned Senior Advocate assisted by Sri Kapil Mishra, learned counsel for the petitioners, Sri Ganga Prasad Mishra, learned counsel for the private respondents, Sri Arun Pandey, learned A.G.A. for the State/respondent nos.1 to 3 and perused the impugned First Information Report as well as material brought on record.
(3) This writ petition under Article 226 of the Constitution of India has been filed by the petitioners, Shashank Gupta and M/s Shreehari Realtech Pvt. Ltd., seeking a writ of certiorari to quash the impugned F.I.R. dated 15.01.2023 registered as F.I.R. No.0027 of 2023, under Sections 420, 409 and 506 I.P.C., Police Station Vibhuti Khand, District Lucknow as well as F.I.R. dated 23.12.2022 registered as F.I.R. No.0651 of 2022, under Sections 420, 409 and 506 I.P.C., Police Station Sushant Golf City, District Lucknow and also issue a writ of mandamus commanding the respondent no.3, not to harass and arrest the petitioners in pursuance of the impugned F.I.R.
(4) Shri Jyotindra Mishra, learned Senior Advocate assisted by Sri Kapil Mishra, learned counsel for the petitioners, argued that the petitioner no. 1-Shashank Gupta is a Director of petitioner no.2's Company, namely, M/s Shreehari Realtech Pvt. Ltd., which is engaged in the business of real estate. The petitioner no.2/Company has developed and constructed a residential apartment under the name and style of ''Luvnest' on the land situated at Plot No. 11/GH-3, Sector 11, Vrindavan Yojna No. 3, Lucknow, Uttar Pradesh. The respondent no.4 and her husband (respondent no.5) applied for a unit/flat in the aforesaid project by means of application form dated 05.11.2018. In pursuance thereof, Flat No.2B-205, admeasuring area approximately 1265 Sq. Ft. on second floor of the aforesaid project was provisionally allotted to the respondent no.4 and respondent no.5 by means of builder buyer agreement dated 07.11.2019 by the petitioner no.2/company. He argued that part payment of the aforesaid flat has been made by the respondent no.4 and respondent no.5 but they have not paid the entire sale consideration in terms of the aforesaid agreement despite several notices and reminders sent to them and as such, the petitioner no.2/Company has cancelled the provisional allotment of the aforesaid flat to respondents no.4 and 5. Thereafter, the respondents nos. 4 and 5 have lodged the impugned F.I.R., alleging absolutely malicious and mischievous allegations in order to grab the aforesaid flat in the said project of the petitioner no.2's Company. His submission is that no offence is made out against the petitioners, hence the impugned First Information Reports are liable to be quashed.
(5) Learned Counsel for the private respondents, on the other hand, has opposed the aforesaid prayer of the learned Counsel for the petitioners and has argued that the petitioner no.1-Shashank Gupta and its Company are habitual in making such type of offence. Earlier F.I.R. No. 0709 of 2022, under Sections 406, 420 I.P.C., at Police Station P.G.I., District Lucknow East (Commissionerate Lucknow) has been registered against the petitioner no.1 and other co-accused persons regarding the same project, namely, Luvnest and the said F.I.R. was challenged by them by filing Criminal Misc. Writ Petition No. 9924 of 2022, which was dismissed by this Court by means of order dated 23.12.2022. Similarly, F.I.R. No. 0738 of 2022, under Sections 419, 420, 406, 467, 468, 471, 504, 506 I.P.C., Police Station Vibhuti Khand, District Lucknow, was lodged against the petitioner no.1-Shashank Gupta and other accused persons, which too was challenged by them by filing Criminal Misc. Writ Petition No. 9926 of 2022, which was also dismissed by this Court by means of order dated 23.12.2022. Therefore, the instant writ petition is liable to be dismissed also.
(6) Learned A.G.A. has also opposed the prayer for quashing of the first information reports and submitted that petitioners are named in the first information reports. It transpires from the impugned first information reports that specific allegation of committing fraud and cheating with the complainants, has been made against the petitioners. He further submits that the impugned first information reports disclose a cognizable offence against the petitioners, and therefore, the present writ petition is liable to be dismissed.
(7) We have examined the submissions advanced by the learned Counsel for the parties and gone through the impugned F.I.Rs. as well as material brought on record.
(8) 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 and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint 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 FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C.
(9) In the well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, the Apex Court held that those guidelines 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."
(10) 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 FIR or the proceedings in consequence thereof cannot be quashed.
(11) In Neharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others : 2021 SCC OnLine SC 315, the Apex Court has observed that the power of quashing should be exercised sparingly with circumspection in the rarest of rare cases. While examining an F.I.R./complaint, quashing of which is sought, the Court cannot inquire about the reliability, genuineness, or otherwise of the allegations made in the F.I.R./complaint. The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the Court to be cautious. The Apex Court has emphasized that though the Court has the power to quash the F.I.R. in suitable cases, the Court, when it exercises power under Section 482 Cr.P.C., only has to consider whether or not the allegations of F.I.R. disclose the commission of a cognizable offence and is not required to consider the case on merit.
(12) Keeping in view the aforesaid law and considering the submissions advanced by the learned Counsel for the parties, we are of the considered view that the submissions raised by learned counsel for petitioners relate to the questions of fact and thus, can not be examined by this Court in proceedings under Article 226 of the Constitution of India. The appreciation of evidence or the reliability of the allegations cannot be examined at this stage.
(13) 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."
(14) From the above stated case laws it is apparent that the above stated contentions raised by the learned counsel for the petitioners can not be examined by this Court. The 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 Article 226 of the Constitution of India. In view of the material on record, it can not be held that the impugned criminal proceedings 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. FIR or criminal proceedings can be quashed only in accordance with parameters laid down by Hon'ble Apex Court in catena of decisions.
(15) In the instant case, from the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. The present petition does not fall in any of such category, wherein, this Court can exercise jurisdiction under Article 226 of the Constitution of India to quash the impugned FIRs. Hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioners.
(16) In view of aforesaid, the petition lacks merit and thus, liable to be dismissed.
(17) The writ petition is, accordingly, dismissed.
(Narendra Kumar Johari,J.) (Ramesh Sinha,J.)
Order Date :- 21.2.2023
Saurabh/Ajit