Dismissed

Ajay Kumar v. State of U.P. and 3 Others

Allahabad HC16 Aug 2023A482/17316/2023

Case brief

AI extract

What is this about?

An application to quash criminal proceedings under Section 482 Cr.P.C. was dismissed. The Court held that contradictory evidence regarding the prosecutrix's age required appreciation by the trial court and did not warrant quashing the proceedings at this stage.

What did the court decide?

Application for quashing of chargesheet and cognizance order is refused; applicant directed to file discharge application before the trial court.

Ajay Kumar Vs State of U.P. and 3 Others — Quashing and FIR | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:164142

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 17316 of 2023

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Applicant :- Ajay Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sandeep Kumar Rai Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicant and learned A.G.A. and perused the record.

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The present applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the charge sheet dated 01.10.2022 and cognizance order dated 12.10.2022 as well as entire criminal proceeding of Case Crime No.236 of 2022, (State versus Ajay) under Sections 363, 366, 376 IPC, and 3/4 of the Protection of Children From Sexual Offences Act, at Police Station- Maharajganj, District- Azamgarh, pending in the court of Special Judge (POCSO Act) Azamgarh.

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Opposite party no. 2 has lodged an F.I.R., being Case Crime No. 0236 of 2022 dated 13.06.2022, leveling allegation against the present applicant, namely, Ajay Kumar that he has enticed away his minor daughter aged about 15 years, whereas he himself is a married man aged about 40 years blessed with two children.

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Learned counsel for the applicant submits that in her statement under Section 164 Cr.P.C. the prosecutrix has stated that she had voluntarily went Delhi with Ajay Kumar and solemnized marriage. It is further submitted that false and malicious prosecution has been made against the present applicant for some ulterior motive known to opposite party no. 2 best. There was no force or compulsion against the prosecutrix to brought her along with the present applicant. It is further submitted that from the face of statement made by the prosecutrix under Section 164 Cr.P.C., prima facie, no case is made out against the present applicant.

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Per contra, learned A.G.A. has vehemently opposed the

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submission as advanced by the learned counsel for the applicant and contended that considering the averment as made in the F.I.R. coupled with the material on record, prima facie, the complicity of the present applicant in the commission of cognizable offence cannot be ruled out. Innocence of the present applicant cannot be inferred at this stage which can be adjudicated upon by the trial court more appropriately after appraising the evidence on record to be adduced by the parties. It is next submitted that no case is made out to warrant the indulgence of this court in exercise of its inherent jurisdiction under Section 482 Cr.P.C., as such, instant application is liable to be dismissed being misconceived and devoid on merits.

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Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that clear cut allegation has been made against the present applicant to kidnap the minor daughter of respondent no. 2. The statement made by the prosecutrix under Section 164 Cr.P.C., showing her age to be 15 years, is a matter of concern. Learned counsel for the applicant has drawn attention of this Court towards the medical report dated 26.07.2022, wherein age of prosecutrix has been shown to be 18 years. The medical report and the Chief Medical Officer, who has issued the medical report, are still to be examined to authenticate the validity of the medical report. Age as shown in the F.I.R., statement under Section 164 Cr.P.C. and the medical report are contradictory, which requires scrutiny by the court competent. At this juncture, innocence of the present applicant cannot be inferred, which is a matter of examination and same can more appropriately be adjudicated upon by the trial court after appraising the evidence on record to be adduced by the parties.

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Record reveals that Learned counsel for the applicants 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

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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 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

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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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24. The question which is raised for consideration is that in what 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 debuted before this Court and various High Courts. Though in a MR 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

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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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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

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prosecution at its inception."

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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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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 and 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 is 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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However, it is provided that in case applicant moves an appropriate application for discharge along with a certified copy of this order before the concerned Court below, the same shall be considered and decided by the Court below as expeditiously as possible in accordance with law, without being prejudiced by the order passed by this Court.

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If the concerned Court feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing

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the discharge application. On the other hand, if the Court below holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.

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With the aforesaid conspectus, this application is disposed of. Order Date :- 16.8.2023 Pkb/

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

Ajay Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

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Ajay Kumar v. State of U.P. and 3 Others

Case brief

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