Dismissed

Haroon Rashid Ali Khan v. State of U.P.and Another

Allahabad HC2 Aug 2023A482/19118/2023

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C. to quash summoning and charge sheets in a rape accusation, the High Court refused to quash. The court held that disputed defenses and evidence appreciation are for the trial court, and since prima facie complicity existed in the FIR, no abuse of process was shown.

What did the court decide?

Quashing of the summoning order and charge sheet refused and the application dismissed.

Haroon Rashid Ali Khan Vs State of U.P.and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:154500

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 19118 of 2023 Applicant :- Haroon Rashid Ali Khan Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Amit Krishna,Vineet Pandey 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 on board.

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The present applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the summoning order dated 30.06.2020 and charge sheet dated 29.02.2020 arising out of Case Crime No. 556 of 2019, u/s 323, 328, 342, 376, 504, 506, 507 I.P.C., Police Station- Surajpur, District- Gautam Budh Nagar of Criminal Case No. 556 of 2019 (State V/s Haroon Rashid Ali Khan), pending in the Court of IInd Additional Judicial Magistrate, Gautam Budh Nagar.

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As per F.I.R. version, being Case Crime No. 556 of 2019 dated 13.06.2019, present applicant (accused), who is known to the prosecutrix, has, at later stage, started misbehaving and harassing her, sending dirty messages and also doing video calls. On 10.06.2019, on the knife point he has forced the prosecutrix to sit in his vehicle and taken her in the room at tenth floor of Rdission Blu (Greter Noida) hotel, where he has forced her to consume some toxic substance and thereafter she has become unconscious. During this period the accused has attempted to rape with the prosecutrix. Thereafter, he has again taken her in his vehicle and roamed at Jamuna Expressway for 2-3 hours and, thereafter, dropped at her residence. Later on the present applicant (accused) has threatened to the prosecutrix that he has made some objectionable videos and he will viral the same on U-tube and he will ruin her life.

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It is submitted by the counsel for the applicant that there is no medical report on the record corroborating the case of the

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prosecutrix. It is further submitted that false and malicious prosecution has been made against the present applicant for some ulterior motive known to the first informant best. It is further submitted that there is no corroborative evidence to strengthen the allegation as made in the complaint, wherein concocted story has been portrayed. It is further submitted that at no stretch of imagination case under Section 376 I.P.C. is made out. He has also assailed the cognizance/summoning order with a submission that it has been passed in cryptic manner without properly appreciating the evidence on record and the case of the prosecutrix. It is next submitted that learned court has not recorded its satisfaction qua the prima facie case showing the guilt of the present applicant.

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Per contra, learned A.G.A. has vehemently opposed the submissions as advanced by the learned counsel for the applicant and contended that, prima facie, complicity of the present applicant in the commission of crime, as alleged in the F.I.R., cannot be ruled out. It is further contended that even assuming that medical of the prosecutrix was not conduced, it will not affect the conginzance/summoning order which has been passed considering the prima facie involvement of the present applicant in the commission of crime as mentioned in the F.I.R. It is further contended that at this stage innocence of the present applicant cannot be inferred, which can more appropriately be adjudicated upon by the trial court after apprising the evidence to be adduced by the respective parties. It is further contended that no legal ground is made out in the instant matter to warrant indulgence of this Court in exercise of inherent jurisdiction under Section 482 Cr.P.C. Therefore, instant application which is liable to be rejected being misconceived and devoid of merits.

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Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that the prosecutrix has lodged an F.I.R. leveling serious and specific allegation against the present applicant wherein, prima facie, complicity of the present applicant in commission of the crime cannot be ruled out. Learned counsel for the applicant has tried to put a defence in support of his submissions to prove the innocence of the present applicant, however, in my opinion same cannot be entertained at this stage, which is matter of trial. Material available on record are treated to be sufficient by the learned trial court to

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issue summon against the present applicant, which does not warrant any indulgence by this Court.

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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 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 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

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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 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

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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 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.

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Order Date :- 2.8.2023 Pkb/

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

Haroon Rashid Ali Khan v. State of U.P.and Another

Case brief

What is this about?

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Haroon Rashid Ali Khan v. State of U.P.and Another

Case brief

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