Dismissed

Shriman Shukla @ Saurabh Shukla v. State of U.P. and 3 Others

Allahabad HC25 Aug 2023A482/10787/2023

Case brief

AI extract

What is this about?

This High Court dismissed an application under Section 482 Cr.P.C. seeking to quash criminal proceedings for molesting a minor. The Court held that prima facie complicity of the applicant could not be ruled out and disputed questions of fact must be adjudicated by the trial court.

What the court decided

AI extract

Shriman Shukla @ Saurabh Shukla Vs… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:171692

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 10787 of 2023

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Applicant :- Shriman Shukla @ Saurabh Shukla Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vaibhav Goswami Counsel for Opposite Party :- G.A.,Dhirendra Mohan Chaudhary

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicant, learned counsel for opposite party no. 2 as well as learned A.G.A. for the State.

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The applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the impugned charge sheet dated 26/01/2023 on which the cognizance taken by the Special court of Special Judge POCSO on 03/02/2023 and the entire proceedings in Case Crime no. 0007 of 2023 under section 354 I.P.C. read with 7/8 POCSO Act and 3(2)(Va) SC/ST P.A. Act, registered at Police Station- Shivkuti, District-Prayagraj.

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Opposite party no. 2 has lodged an F.I.R., being Case Crime No. 0007 of 2023 dated 11.01.2023, leveling allegation against the present applicant of outraging the modesty of the minor daughter of the first informant, who belongs to scheduled caste, on the date of incident dated 11.01.2023 at about 5.30 p.m. with an averment that the accused has hold the hand of minor daughter of the first informant and pined her down on the ground intending to do something wrong. In the meantime, first informant intervened, consequently, accused fled away from the scene.

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It is submitted by the learned counsel for the applicant that in the F.I.R. place of occurrence has not been mentioned, however, at the later stage in the statement under Section 161 Cr.P.C. first informant has developed the case and mentioned the place of occurrence, being Sinchai Colony Park. It is further submitted that knowledge of occurrence has not been disclosed as well as to how he came to know qua alleged incident and reached at the place of occurrence. Learned counsel for the applicant has also made emphasis on the fact that there is no independent witness

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corroborating the incident as mentioned in the F.I.R. It is further submitted that as per F.I.R., daughter of the first informant went to coaching classes, however, there is no specific case of the first informant as to in which coaching she was studying. It is further submitted that with respect to the alleged incident in question an application under Section 156(3) Cr.P.C. has been filed on behalf of the present applicant (accused) on 23.01.2023, which has been treated as a complaint case and still pending for consideration. The applicant has tried to get the police case registered with respect to the incident in question, however, same has not been got registered, therefore, in compelling circumstances he has moved an application under Section 156(3) Cr.P.C. Learned counsel for the applicant has also drawn the attention of the Court towards the injury report (Annexure No. 8) with a submission that in the incident in question applicant has sustained serious injuries through blunt and hard object. It is further submitted that the first informant has tried to develop his case in his further statement under Section 161 Cr.P.C., therefore, it would be improper, in the facts and circumstances of the case, to corroborate the incident in question with the further statement of opposite party no. 2.

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Per contra, learned counsel for opposite party no. 2 has vehemently opposed the submissions as advanced by the learned counsel for the applicant and contended that on the face of record, prima facie, complicity of the present applicant in the commission of crime cannot be ruled out. It is further contended that the present applicant is habitual offender. Previously as well he has tried to molest and tease the daughter of the first informant. Being aggrieved with the behaviour of the present applicant, opposite paryt no. 2 previously had already moved complaint dated 02.01.2020 and 27.10.2021 (Annexure No. CA-1 & CA-2 respectively) to the police. It is further contended that the innocence of the present applicant, as tried to be made out by the learned counsel for the applicant, cannot be inferred at this stage, which can more appropriately be adjudicated upon by the trial court after appraising the evidence to be adduced by the parties concerned. It is next contended that the incident in question, as mentioned in the F.I.R. coupled with the material available on record, prima facie, cannot be disbelieved. Therefore, present applicant has rightly been inculpated in the aforesaid crime and investigating officer has filed the charge sheet arraigning the present applicant. It is next contended that no legal ground is made out as to warrant the indulgence of this Court in exercise of inherent jurisdiction under Section 482 Cr.P.C. to quash the entire criminal proceeding, therefore, instant application is liable to be

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rejected, being misconceived and devoid of merits.

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Having considered rival submissions advanced by counsel for the parties and perusal of record, it reveals that the allegation has been made against the present applicant to molest the minor daughter of the first informant and, qua his conduct, as mentioned in the counter affidavit, previously he had already made complaint twice to the police. Copy of the complaint dated 02.01.2020 and 27.10.2021 have been filed as Annexure Nos. CA-1 & CA-2 respectively to the counter affidavit. Considering the entire case of the first informant in its totality coupled with the statement made by the first informant under Section 161 Cr.P.C. and statement of victim under Section 164 Cr.P.C., prima facie, complicity of the present applicant in the commission of crime cannot be ruled out. Material available on record, prima facie, appears to be sufficient to make out a case of cognizable offence under the sections wherein present applicant has been arraigned in the charge sheet. In the F.I.R. and his statement under Section 161 Cr.P.C. informant has articulated the incident in question, allegedly committed by the present applicant, which has duly been corroborated by the statement of the victim under Section 164 Cr.P.C. Learned counsel for the applicant has tried to dispute the correctness of the fact as mentioned in the F.I.R. by raising several questions with respect to the place of occurrence and knowledge of occurrence, which are not much relevant, in my opinion, for the purposes of deciding the instant application under Section 482 Cr.P.C. Antecedent of the present applicant is also a matter of concerned which is evident from two complaints dated 02.01.2020 and 27.10.2021, respectively, moved by respondent no. 2. In previous complaint dated 27.10.2021 too respondent no. 2 has made allegation of molestation against the present applicant and made reference of complaint dated 02.01.2020 as well. Disputed questions of fact, as raised by the learned counsel for the applicant, can be decided by the trial court more appropriately after appraising the evidence on record. So far as moving of the application under Section 156(3) Cr.P.C. on behalf of the present applicant is concerned, same shall be considered and examined separately by the learned magistrate concerned. It is own submission of the learned counsel for the applicant that the said application has been treated as complaint and till date summons have not been issued against the alleged accused. Grievous injuries, as shown by the learned counsel for the applicant, inflicted to the present applicant, is a matter of examination which can more appropriately be addressed by the leaned magistrate in deciding the complaint case moved on behalf of the applicant. At this stage, innocence of the present applicant,

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as tried to put forward by the learned counsel for the applicant, cannot be examined by this Court in exercise of inherent jurisdiction under Section 482 Cr.P.C. Present applicant, however, has still an opportunity to put his defence before the trial court to prove his innocence in the cognizable offense under which he has been inculpated. I do not find any justifiable ground to entertain the instant application in exercise of inherent jurisdiction under Section 482 Cr.P.C. to quash the entire criminal proceeding against the present applicant. Neither there is any abuse of process of court nor there is any valid ground to pass any justifiable order to secure the ends of justice.

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Record reveals that learned counsel for the applicant has raised disputed question of fact qua involvement of present applicant in the incident in question.

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In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

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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 3; 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/chargesheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

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In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :-

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"61. The position that emerges from the above discussion can be summarised

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thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

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In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

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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 entirely 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/chargesheet and other documentary evidence, if any, on record.

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The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex 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

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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 bur engrafted in any of the provisions of the Code on 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.

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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 10 private and personal grudge."

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It has been further elucidated recently by Hon'ble Apex Court

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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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Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of 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 and/or interim order can be granted.

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Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

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Having considered the rival submissions advance by learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused.

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As such, instant application is dismissed with no order as to costs.

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Order Date :- 25.8.2023 Pkb/

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Digitally signed by :- PRAMOD KUMAR BAJPAI High Court of Judicature at Allahabad

Shriman Shukla @ Saurabh Shukla v. State of U.P. and 3 Others

Case brief

What is this about?

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Shriman Shukla @ Saurabh Shukla v. State of U.P. and 3 Others

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