Allahabad High Court
Pradeep Pathak @ Pradeep Kumar vs State Of U.P. & Anr. on 4 January, 2021
Equivalent citations: AIRONLINE 2021 ALL 51
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 29 Case :- U/S 482/378/407 No. - 2742 of 2020 Applicant :- Pradeep Pathak @ Pradeep Kumar Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- P.K. Mishra,Devendra Kumar Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.
1. Sri Rohit Singh Parmar, Advocate has filed vakalatnama on behalf of opposite party no. 2 same is taken on record.
2. Heard Sri P.K. Mishra, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. as well as Sri Rohit Singh Parmar, learned counsel appearing on behalf of opposite party no. 2.
3. By means of present application the applicant has challenged the entire proceedings of Sessions Trial No. 31 of 2020 - State Vs. Pradeep Pathak @ Pradeep Kumar, arising out of first information report registered as Case Crime No. 480 of 2015, under Sections 363, 364, 376, 506 I.P.C. and Section 3/4 of POCSO Act, Police Station - Hasanganj, District - Lucknow as well as Charge Sheet No. 415 of 2015, dated 08.12.2018 and summoning order dated 17.01.2020, passed by the Court below in the aforesaid case.
4. It has been submitted by learned counsel for the applicant that the first information report was lodged by opposite party no. 2 against the applicant on 27.11.2015 at about 10.30AM, as Case Crime No. 480 of 2015, under Sections 363, 364, 376, 506 I.P.C. and Section 3/4 of POCSO Act, Police Station - Hasanganj, District - Lucknow.
5. It is further submitted by learned counsel for the applicant that as per first information report dated 27.11.2015, it has been alleged that opposite party no. 2 had physical relationship with the applicant since 2013. The applicant has given promise to marry with opposite party no. 2 and repeated sexual relations were maintained against her will. Various incidents have been stated in the first information report and lastly it has been stated that when the opposite party no. 2 asked the applicant to marry her, he refused. Accordingly first information report was lodged. During investigation, statement of opposite party no. 2 under Section 161 Cr.P.C. was recorded, wherein she has given same statement as recorded in the first information report and further stated that she was threatened by the applicant with maligning her image by making her obscene photographs and circulating them and also that he would destroy her face by putting acid on her and directed her to keep quite about the said incident.
6. It is further submitted on behalf of applicant that subsequently statement of opposite party no. 2 was recorded under Section 164 Cr.P.C. wherein she had given a different version of the events. Opposite party no. 2 in her statement under Section 164 Cr.P.C. she had admitted physical relationship with the applicant stating that physical relationship was consensual and marriage could not take place because the parents could not agree. It has also been recorded in the statement under Section 164 Cr.P.C. that the applicant had threatened opposite party no. 2 with maligning her image by circulating obscene photographs. In the aforesaid circumstances the applicant has prayed for quashing the proceedings of criminal case initiated against him on the ground that no case is made out against him.
7. Learned counsel appearing for opposite party no. 2 has submitted that perusal of the first information report as well as statement of opposite party no. 2 recorded under Section 161 Cr.P.C. depicts the true facts arising in the present case. He also submits that statement of opposite party no. 2 recorded under Section 164 Cr.P.C. was recorded under duress inasmuch as it is clear from the statement recorded under Section 161 Cr.P.C. that opposite party no. 2 was threatened with physical assault as well as maligning her image by circulating her obscene photo graphs as well as throwing acid on her and therefore for these reasons opposite party no. 2 did not gave correct statement under Section 164 Cr.P.C. The police investigated the case and after investigation submitted charge sheet against the applicant and the Court below by means of order dated 17.01.2020, has taken cognizance of the case and issued summons to the applicant. Prayer has been made to quash the entire criminal proceedings.
8. Heard learned counsel for the parties and perused the record.
9. Perusal of first information report as well as statement of opposite party no. 2 recorded under Section 161 Cr.P.C. clearly disclose allegations constituting commission of offence against the applicant. The medical report also shows that opposite party no. 2 at the time of alleged incident was 14 years of age and therefore offence under POCSO Act have also been attracted in the present case.
10. In the light of the fact that there was an allurement of marriage at the time when physical relationship was maintained by the applicant with opposite party no. 2, it cannot be judged at the stage of issuance of summons that whether the promise of marriage was false at the initial stage or the marriage could not take place subsequently. These are the facts which can be adjudged in the trial and after adducing of evidence by the parties.
11. The law laid down by the Hon'ble Apex Court as well as this Court is very clear in this regard.
12. In State of Haryana vs. Bhajan Lal and others, 1992 Supp (1) 335, issue of jurisdiction of this Court under Section 482 Cr.P.C. has been considered and what is laid down therein in paragraph 102, has been repeatedly followed and reiterated consistently. In a very recent judgment in Google India Private Limited Vs. Visakha Industries and Ors., (2020) AIR SC 350, guidelines laid down in paragraph 102 in Bhajal Lal's case (supra) have been reproduced as under :
"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."
13. Court has also reproduced note of caution given in paragraph 103 in Bhajan Lal's case (supra) which reads as under :
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
14. What would be the scope of expression "rarest of rare cases" referred to in para 103 in State of Haryana vs. Bhajan Lal (supra) has been considered in Jeffrey J. Diermeier and Ors. Vs. State of West Bengal and Ors., (2010) 6 SCC 243, Court has said that words "rarest of rare cases" are used after the words 'sparingly and with circumspection' while describing scope of Section 482 CrPC. Those words merely emphasize and reiterate what is intended to be conveyed by the words 'sparingly and with circumspection'. They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasize that the power under Section 482 Cr.P.C. to quash FIR or criminal proceedings should be used sparingly and with circumspection.
15. In a Three Judges' Bench in Parbatbhai Aahir and Ors. Vs State of Gujarat and Ors, (2017) 9 SCC 641, Court has observed that Section 482 CrPC is prefaced with an overriding provision. It saves inherent power of High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any court; or (ii) otherwise to secure the ends of justice. In Paragraph 15 of the judgment Court summarized as under :
"(i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;
(ii) The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable.
(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;
(iv) While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court;
(v) The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated;
(vi) In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;
(vii) As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned;
(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;
(ix) In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and
(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
16. Above observations have been reiterated in Arun Singh and other Vs State of U.P. passed in Criminal Appeal no.250 of 2020 (arising out of Special Leave Petition (Crl.) No. 5224 of 2017), decided by Supreme Court on 10.02.2020.
17. The authority relied on by learned counsel for applicant in State of Orissa Vs. Debendra Nath Padhi (supra) is a judgement delivered by a Three Judges' Bench of Supreme Court on a 'Reference' made to larger Bench expressing doubt on the law laid down by a Two Judges' Bench in Satish Mehra Vs. Delhi Administration and Another, (1996) 9 SCC 766 in view of an earlier Three Judges' decision in Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, (1979) 4 SCC 274 and State of Bihar Vs. Ramesh Singh, (1977) 4 SCC 39.
18. Considering the facts of the case I am of the considered view that there was sufficient material indicating allegations constituting offence against the applicant for being tried and there is no infirmity with the order of trial Court in taking cognizance and issuing summons to the applicant.
19. In view of above, I do not find any merit in the case for interference in the matter.
20. The application is devoid of merits and is accordingly dismissed.
Order Date :- 4.1.2021 A. Verma (Alok Mathur, J.)