Allowed

Kamlesh Kumar and 2 Others v. State of U.P. and Another

Allahabad HC8 Dec 2022A482/24778/2017

Case brief

AI extract

What is this about?

The High Court allowed an application to quash criminal proceedings initiated under Section 156(3) Cr.P.C. based on an allegedly false FIR. The court held that since the injury report was disputed and the matter was sub-judice, Section 195 Cr.P.C. renders the proceedings unsustainable.

What did the court decide?

Application to quash proceedings of Criminal Case No.9662/2016 and charge-sheet dated 10.01.2014 is allowed and proceedings are quashed.

Kamlesh Kumar and 2 Others Vs State of U.P. and… — Writ and Judicial Review | Allahabad HC (2022)

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Reserved On: 02.12.2022

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Delivered On: 08.12.2022

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Court No. - 88

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Case :- APPLICATION U/S 482 No. - 24778 of 2017

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Applicant :- Kamlesh Kumar And 2 Others Opposite Party :- State of U.P. and Another Counsel for Appslicant :- Shyam Sunder Mishra Counsel for Opposite Party :- G.A.,Shivakant

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Hon'ble Syed Aftab Husain Rizvi,J.

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Heard learned counsel for the applicant, learned AGA for the State and perused the record.

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This application U/s 482 Cr.P.C. has been filed to quash the proceeding of Criminal Case No.9662 of 2016 (State vs. Kamlesh Kumar and others) and charge sheet dated 10.01.2016 arising out of case crime no.535 of 2014 under sections 419, 420 IPC, P.S. Kotwali, District Fatehpur pending in the court of Chief Judicial Magistrate, Fatehpur.

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On an application moved by opposite party no.2 U/s 156(3) Cr.P.C., a case crime no.535 of 2014, U/s 419, 420, 467, 468, 469, 470 and 471 IPC was registered at P.S. Kotwali, District Fatehpur.

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The contents of the FIR are that the applicants no.1 & 2 are of one family while opposite party no.3 is a rich person of the village. The complainant and opposite parties are well known to each other. The opposite party no.1 is the real brother of the applicant. Opposite party no.1 Kamlesh Kumar met with motor cycle accident due to his own negligence in the year 2007 and he suffered simple injuries but in collusion with the doctor, he obtained a forged disability certificate, he used to harass helpless and poor persons and with the collusion of opposite party nos. 2 & 3 is creating terror in the society, when someone prevents him from doing so, he threatens them to falsely

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implicate, due to this, no one can desist to say anything. Earlier opposite party no.1 has lodged a false case against the applicant which was dismissed. On 12.06.2014 the opposite party no.1 Kamlesh Kumar got his medical and X-Ray report prepared and making opposite party nos.2 & 3 witnesses lodged a false FIR against the applicant and his wife, while opposite party nos.2 & 3 are fully aware that no such incident has happened and a false case has been instituted just for harassment. When the fact of lodging a false case by opposite party no.1 Kamlesh Kumar came to the notice of the applicant, then he enquired at district hospital, Fatehpur, Chief Medical Officer Fatehpur informed him that the medical report has been got prepared showing it a case of Road Traffic accident. Applicant gave written information of this at police station on 05.08.2014 but no action was taken. He also sent an application to Superintendent of Police but no case has been registered against the opposite parties. After investigation, charge-sheet has been submitted against the applicants under sections 419 & 420 IPC.

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It is contended by learned counsel for the applicants that except complainant Rajesh Kumar, the statement of any other witnesses U/s 161 Cr.P.C. has not been recorded. The Chief Medical Officer, Fatehpur has not been examined U/s 161 Cr.P.C. for verification of the genuineness of medical certificate and it cannot be said that medical certificate of the applicant is forged and fabricated. It is further contended that Chief Medical Officer, Fatehpur has issued a disability certificate in favour of the applicant no.1 which is never found to be forged by any competent authority. The case against opposite party no.2 and his wife was registered in pursuance of the order dated 06.09.2014 passed by CJM, Fatehpur on an application U/s 156 (3) Cr.P.C., therefore, mere making allegations without any basis does not constitute any offence. It is also contended that applicants have neither cheated the opposite party no.2 nor they have committed any fraud with them. Therefore, no offence U/s 419 & 420 IPC is made out against the applicants. The Investigating Officer has not investigated the case properly and no material evidence has been collected. Charge-sheet has been submitted without any evidence in collusion of opposite party no.2. Applicants are quite innocent. The FIR has been lodged with malafide intention only to

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harass the applicants and to defame their dignity. The criminal proceedings against the applicants is nothing but an abuse of the process of the court.

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Learned AGA and learned counsel appearing for opposite party no.2 opposes and submitted that in the injury report of the applicant no.1, it is clearly mentioned that it is a case of road accident. The applicant no.1 has suffered injury in the road accident and concealing the aforesaid facts due to enmity he has falsely implicated the opposite party no.2 and his wife in case crime no.281 of 2014 under sections 325, 323, 504, 506 IPC, P.S.- Malwan, District Fatehpur, pretending it to be injury received in the assault. The applicant no.1 has concealed the facts before the court and injury report of accident has been manipulated to be of maar peet, therefore, they have committed the offence U/s 419 & 420 IPC. The applicants have committed the fraud with the opposite party no.2. After proper investigation, chargesheet has been submitted and cognizance has been taken on it. There is no sufficient ground to quash the charge-sheet or proceeding.

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The allegations of the FIR are that applicant no.1 has suffered injury in a road traffic accident. He got himself medically examined and obtained medico-legal report and X-Ray report but on the basis of this injury report, he has filed a false case of assault, abuse and criminal intimidation against the opposite party no.2 with the aid of applicant nos.2 & 3 making him witnesses, applicant nos.2 & 3 are fully aware that the applicant no.1 has suffered injuries in a road traffic accident and no such incident of assault etc. as alleged in the FIR has happened. It is undisputed that the opposite party no.2 is facing trial in case crime no.281 of 2014, U/s 325, 323, 504, 506 IPC, P.S. Malwan, District Fatehpur in the competent court and the impugned injury report and X-Ray report are documentary evidence of that case. The trial court has to analyze the evidence and judge the documents produced before it, before giving any finding whether the applicant no.1 has suffered injury in a road accident or in assault by opposite party no.2 which is a prosecution version of that case. The matter is sub-judice and the finding of the competent court is yet to come.

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Section 195 of Cr.P.C. provides as follows:

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“Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

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(1) No Court shall take cognizance-

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(a) (i) of any offence punishable under sections 172 to 188 (both inclusive of the Indian Penal Code (45 fo 1860), or

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(ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

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(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or

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(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

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(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (I) or sub-clause (ii).”

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So according to provisions of section 195 Cr.P.C., if the trial court comes to the conclusion that a false injury report has been submitted to procure the conviction of the opposite party no.2 for a criminal offence, it may adopt the procedure given in section 195 Cr.P.C. The criminal case on the basis of F.I.R. cannot proceed in this matter. The most unfortunate aspect of the matter is that the FIR has been lodged on an application U/s 156 (3) Cr.P.C. under the orders of the Magistrate. It appears that the Magistrate lost the view of Section 195 Cr.P.C. while passing the order for registration of FIR and investigation.

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From the aforesaid discussion, it is quite clear that the criminal proceeding on the basis of FIR is not legally sustainable and it is a fit case where this Court should exercise its power U/s 482 Cr.P.C. to quash the proceeding.

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If the opposite party no.2 is acquitted in the criminal case and it is held that he has been falsely implicated on the basis of manipulated medico-legal report, he may file case for malicious prosecution.

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Accordingly the application U/s 482 Cr.P.C. is allowed and the proceedings of criminal case no.9662 of 2016 (State vs. Kamlesh Kumar and others) and charge-sheet dated 10.01.2016 arising out of case crime no.535 of 2014 are quashed.

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Order Date :- 08.12.2022 C. MANI

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Digitally signed by CHANDRAMANI VERMA Date: 2022.12.09 15:51:07 IST Reason: Location: High Court of Judicature at Allahabad

Kamlesh Kumar and 2 Others v. State of U.P. and Another

Case brief

What is this about?

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Kamlesh Kumar and 2 Others v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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