Dismissed

Linkesh @ Lokesh and 7 Others v. State of U.P. and Another

Allahabad HC28 Aug 2023A482/17970/2023

Case brief

AI extract

What is this about?

The High Court rejected an application for quashing criminal proceedings under Section 482 CrPC. Citing Supreme Court precedents, the Court held that disputes regarding facts, intent, and evidence are for the trial court. The grievance regarding Section 308 IPC was dismissed. The Court directed the applicants to file a bail application within two weeks for expedited consideration.

What the court decided

AI extract

Linkesh @ Lokesh and 7 Others Vs State of U.P… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:173015

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 17970 of 2023

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Applicant :- Linkesh @ Lokesh And 7 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mrityunjay Dwivedi Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Pathak,J.

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Heard learned counsel for the applicants, learned AGA and perused the record.

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The present applicants have invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of cognizance/summoning order dated 21.12.2022, charge sheet dated 25.9.2022 as well as entire criminal proceeding of Case No. 38597 of 2022 arising out of the Case Crime No. 0557 of 2022, under Sections 147, 323, 504 and 308 IPC, Police Station Quarsi, District Aligarh pending before Chief Judicial Magistrate, Aligarh.

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As per FIR version, on 6.6.2022 at about 6.30 P.M., first informant (opposite party No. 2) along with his friend Rahul reached at the shop namely Hari Misthan Kendra, G.T. Road, Naurangabad; that Rahul has demanded money from the shop keeper namely Lokesh, which was borrowed by him, however, Lokesh has started shouting at Rahul and further abused him; that he has called his brother namely Inder and Rajesh, who along with some friends have attacked at Rahul with sharp edged weapon. Lokesh had hit on the head of Rahul with a sharped edged weapon on account of which Rahul got fainted and fell on the ground. Inder has snatched the golden chain from the neck of Rahul. When the present informant has screamed, he has also been beaten up by them and seeing the public gathering, the accused fled away from the scene. After investigation, the Investigating Officer has submitted charge sheet dated 25.9.2022 and arraigned eight persons (applicants herein) under Sections 147, 323, 504 and 308 IPC by deleting Section 395 IPC, which was initially mentioned in the FIR.

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Learned counsel for the applicant submits that the ingredients, as enunciated under Section 308 IPC, are not attracted in the instant matter. Learned counsel for the applicants has drawn

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attention of this Court towards the injury and X-ray reports and submits that none of the injury are in the nature of grievous hurt which could cause culpable homicide as mentioned under Section 308 IPC.

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Per contra, learned AGA has vehemently opposed the contention as raised by the learned counsel for the applicants and contended that, prima facie, the complicity of the present applicants in the commission of crime cannot be ruled out. It is further contended that without examining the intention and knowledge of the accused persons in the light of the injuries inflicted upon Rahul, prima facie, it cannot be said that no case is made out under Section 308 IPC. It is further contended that factum of the incident on the date i.e. 6.6.2022 cannot be denied in the facts and circumstances of the present case. It is further contended that at this juncture, the innocence of the present applicants cannot be examined, which can more appropriately be examined by the trial court concerned after appraisal of evidence adduced on behalf of the parties. It is next contended that at this juncture, no legal ground is made so as to warrant indulgence of this Court in exercise of inherent jurisdiction under Section 482 CrPC to quash the entire criminal proceeding. As such, the instant application may be rejected being misconceived and devoid of merits.

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Having considered the rival submissions advanced by the learned counsel for the applicants as well as learned AGA and perusal of record, it reveals that the incident dated 6.1.2022 is established. Learned counsel for the applicants has raised solitary submission with respect to the applicability of Section 308 IPC in the facts and circumstances of the present case. He has made emphasis upon the medial report showing the nature of injuries inflicted upon the victim (Rahul) coupled with the statement of Dr. Mohd. Ishlam and the observation made by the Investigating Officer in the case diary. As per submission of the learned counsel for the applicants, the injuries inflicted upon the victim is not grievous in nature and, therefore, by no stretch of imagination, it can be said that case under Section 308 IPC is made out. To examine the submission, as raised by the learned counsel for the applicant, the scope of Section 308 IPC is required to be explored. For ready reference, Section 308 IPC is quoted hereinbelow:-

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"Section 308. Attempt to commit culpable homicide.- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with

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both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."

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A perusal of the provisions as enunciated under Section 308 IPC reveals that:-

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(i) An act was committed by the accused.

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(ii) The said act was done with the intention or knowledge that he shall be guilty of culpable homicide not amounting to murder.

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In the injury report dated 6.6.2023, four injuries have been shown to be inflicted upon the injured (page No. 19), which are as follows:

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"1. Lacerated wound size 5.5x0.4 cm. on right side of head, 4.00 cm. ear (kvo) Adv. x-ray skull---AP/nd

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2. Multiple Reddish Abrasion size 7.0 x 2.00 cm area on front side upper point of neck

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3. Multiple Reddish Abrasion size 3.00 x 1.00 cm area on front side of knee 2.00 cm below right eye.

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4. C/o examination front of (kvo) adv. x-ray elmt. P.A. none

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Opinion:- Injury No. 1, 2 C/o 4 KVO and advised X-ray and x-ray are simple in nature caused by hard and blunt object."

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With respect to injury No. 1 and 4, the doctor concerned has referred the matter for X-ray. In the X-ray report (page 22), the doctor has opined that all the injuries are simple in nature. In my considered opinion, nature of injuries caused to the victim is not much relevant for the purposes of deciding the applicability of Section 308 IPC. It is the intention or knowledge of the accused under which he has committed the overt act and due to such act, death could be caused to the victim, is the paramount consideration for applicability of Section 308 IPC. In the given circumstances of the present case, the victim has allegedly been thrashed by several persons, as arraigned in the charge sheet, inflicting injuries on the body of the victim. Hon'ble Apex Court in the matter of Sunil Kumar Vs. NCT of Delhi and others, (1998) 8 Supreme Court Cases 557 has expounded in paragraph 4 of the judgment that 'offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt

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of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different.'

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In the given circumstances of the present case, it would not be befitting to give any finding with respect to the intention or knowledge of the present applicants, which is a subject matter of evidence and can more appropriately be adjudicated upon by the trial court. However, it cannot be said that the ingredients i.e. intention or knowledge of the present applicants, prima facie, are lacking for the purposes of arraigning the present applicants in charge sheet under Section 308 IPC.

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Record reveals that learned counsel for the applicants has raised disputed question of fact qua involvement of present applicants 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

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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 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

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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 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

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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 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 and learned AGA 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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Before parting, learned counsel for the applicant submits that in all sections, as mentioned in the FIR, maximum punishment is seven years or less than 7 years, therefore, the bail application if filed by the present applicant may be considered in the light of the dictum of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 Supreme Court Cases 773. In the cited

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case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences.

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Considering the entire facts and circumstances of the case and the dictum of Hon'ble Supreme Court, I think it appropriate that in case, the present applicant appears/surrenders before the concerned court below and move bail application within two weeks, the same shall be considered and decided in accordance with law, considering the judgment of Hon'ble Supreme Court, expeditiously as early as possible.

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With the aforesaid observation, this application is disposed of.

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Order Date :- 28.8.2023 vinay

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

Linkesh @ Lokesh and 7 Others v. State of U.P. and Another

Case brief

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Linkesh @ Lokesh and 7 Others v. State of U.P. and Another

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