Dismissed

Pradeep Kumar v. State of U.P. and Another

Allahabad HC20 Sept 2022A482/16424/2022

Case brief

AI extract

What is this about?

The High Court dismissed the applicant’s application under Section 482 Cr.P.C. to quash the FIR and summoning order arising from an incident involving police constables accused of extortion and assault. The court held that the allegations prima facie disclosed an offence and no exceptional circumstances existed to squash the prosecution.

What did the court decide?

Prayer to quash the Session Trial, Charge Sheet, cognizance order, and summoning order was refused; petition dismissed.

Pradeep Kumar Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 66 Case :- APPLICATION U/S 482 No. - 16424 of 2022 Applicant :- Pradeep Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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1 . Heard Sri Ajay Kumar Srivastava, learned counsel for the applicant and Sri B.B. Upadhyay, learned counsel for the State and perused the record.

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2 . The present application under Section 482 Cr.P.C. has been filed by the applicant Pradeep Kumar with the following prayers:-

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"It is therefore, most respectfully prayed that this Hon'ble court may be pleased to allow this application and to quash the entire Session Trial No. 47 of 2022, pending in the Court of Special Judge Anti Corruption-1st District Varanasi, in between State of U.P. Vs. Mohan Maurya and others and the Charge Sheet No. 02/2021 dated 05.12.2021 and the cognizance order dated 10.01.2022 and the summoning order dated 10.01.2022, arising out of Case Crime No. 76/2020, U/s 323, 504, 384 IPC and 7/13(1)(b) Prevention of Corruption Act, 1988, Police Station Ram Nagar, District Varanasi, be quashed and set aside.

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It is further prayed that the further proceeding of the Session Trial No. 47 of 2022, pending in the Court of Special Judge Anti Corruption-1st District Varanasi, in between State of U.P. Vs. Mohan Maurya and others, be stayed in respect of the applicant, during the pendency of the present proceeding before this Hon'ble Court, in the interest of justice."

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3 . The prosecution case as per the First Information Report lodged on 04.05.2020 by Chamru Sonkar against the applicant Pradeep Kumar, Mohan Maurya @ Chhotu Maurya and Constable Rahul Bharti are that he is a resident of Gayatri Nagar Colony, Rampur, Police Station Ram Nagar. On 30.04.2020 after selling vegetables he came back home and after keeping the articles went to the house of his neighbour Mohan Maurya @ Chhotu Maurya to play carrom. Mohan Maurya @ Chhotu Maurya, Gopal Sonkar, Vinod Sharma and Chhotu Sonkar were present there. Sometimes there used to be betting of Rs. 40-50 while playing. On the day of the incident, all the persons were playing carrom and at about 04:00 pm, two Police Constables of Police Station Ram Nagar namely Pradeep Kumar and Rahul Bharti came on phantom motorcycle and objected to them that are not using mask and said as to how they have collected there. They started abusing them and assaulted them with a danda due to which the first informant and other persons got frightened. Later on, Constable Pradeep

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Kumar took Mohan Maurya @ Chhotu Maurya with him outside the house and Constable Rahul Bharti started making a video. After ten minutes, Constable Pradeep Kumar and Mohan Maurya came inside the house and Constable Pradeep Kumar said that video and photo has been captured for the reason that if they are seen then they would be picked up and they will go to jail. After both the constables went back, Mohan Maurya @ Chhotu Maurya told them that he somehow managed the Police Constables and everyone should give Rs. 2,000/- each otherwise they would be sent to jail. All the persons got frightened. The first informant had some money which he had earned after selling vegetables from which he gave Rs. 3,000/to Mohan Maurya @ Chhotu Maurya. The other persons also gave Rs. 2,000/- each to Mohan Maurya @ Chhotu Maurya and then the first informant went back and told the story to Srijan Srivastava of the area and the news spread amongst the people of the area. At about 09:00 pm, Mohan Maurya @ Chhotu Maurya returned the money of the first informant and it came to be known that he gave Rs. 5,000/- to the Constables. The news spread in the area and then it came was known that Constable Pradeep Kumar had even previously taken Rs. 1,000/- from Rahul Jaiswal of Jaiswal Works in the name of sealing the shop but had not returned it. The said three persons have acted illegally and report be lodged and action be taken.

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4 . Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first informant in his statement recorded under Section 164 Cr.P.C. has disowned the First Information Report and his statement recorded under Section 161 Cr.P.C. He has placed the copy of his statement which is annexure 3 to the affidavit. He further argued that the first informant has given an application dated 11.06.2020 supported by an affidavit to the court below stating therein that no such incident had taken place. No money was given by him. The copy of the said application and affidavit have been placed before the Court which is annexure 4 to the affidavit. It is argued that looking to the same, the present case deserves to be allowed. The proceedings and the summoning order also deserves to be quashed.

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5 . Per contra, learned counsel for the State opposed the prayer for quashing and argued that in the present matter, the investigation has concluded after which charge sheet dated 05.12.2021 has been submitted against the applicant, Mohan Maurya @ Chhotu Maurya and Constable Rahul Bharti. The trial court has vide order dated 10.01.2022 taken cognizance on the same and summoned the accused. It is argued that from perusal of the First Information Report and the material collected during investigation an offence is made out. It cannot

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be said that no offence whatsoever is made out. It is argued that the present application deserves to be dismissed.

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6 . After having heard learned counsel for the parties and perusing the records, it is evident that the applicant is named in the First Information Report and the statement recorded under Section 161 Cr.P.C. of the first informant. The statement recorded under Section 164 Cr.P.C. of the first informant though is in contrast with his statement recorded under section 161 Cr.P.C. but appreciating the same is a matter to be seen in trial. The use of the statement under Section 164 Cr.P.C. is for a limited purpose. The application and affidavit of the first informant given before trial court, cannot be looked into. The law with regards to the quashing of proceedings is trite.

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7 . 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; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; 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; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 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.

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8 . In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : Criminal Appeal No(s). 296 of 2021 [Arising out of SLP (Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC OnLine SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows:

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"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.

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24. The question which is raised for consideration is that in what

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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.

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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:-

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"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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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

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where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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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."

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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.

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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.

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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/chargesheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception."

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9 . Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others : (2020) 10 SCC 118 the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done. It has been held as follows:

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"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;

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ii) Courts would not thwart any investigation into the cognizable offences;

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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;

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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).

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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;

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vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

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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;

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ix) The functions of the judiciary and the police are complementary, not overlapping;

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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;

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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;

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xii) The first information report is not an encyclopaedia 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;

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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;

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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;

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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;

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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

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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.

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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.

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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."

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10 . 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 in the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into as it is. Evidence needs to be led to substantiate the defence of the accused.

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11 . I do not find any justification to quash the proceedings and the summoning order against the applicant. The case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

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12 . The prayer for quashing the summoning order/proceedings of case is refused as I do not find any abuse of the Court's process either.

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13 . The petition lacks merits and is accordingly, dismissed .

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Order Date :- 20.9.2022 M. ARIF

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(Samit Gopal, J.)

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Digitally signed by MOHAMMAD ARIF Date: 2022.09.23 17:29:23 IST Reason: Location: High Court of Judicature at Allahabad

Pradeep Kumar v. State of U.P. and Another

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Pradeep Kumar v. State of U.P. and Another

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