This Criminal Misc. Application under Section 482 Cr.P.C. seeking quashing of charge sheet and trial proceedings was dismissed. The court held that quashing is extraordinary and inappropriate after charge-framing and commencement of trial, as the allegations disclose prima facie offences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:118581
Court No. - 71
Case :- APPLICATION U/S 482 No. - 19795 of 2023
Applicant :- Sandeep Jaiswal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Bibhuti Narayan Singh Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
2 . Heard Sri Bibhuti Narayan Singh, learned counsel for the applicant and Sri B.B. Upadhyay, learned counsel for the State of U.P. and perused the records.
3 . The present Criminal Misc. Application U/S 482 Cr.P.C. has been filed by the applicant Sandeep Jaiswal with the following prayers:-
“It is, therefore most respectfully prayed that this Hon’ble Court may kindly be pleased to allow the present criminal misc. application and quash the impugned charge sheet being Charge Sheet No. A-50 dated 07.03.2019 and order dated 02.4.2019 passed by Additional Sessions Judge, Court No. 1, Maharajganj and all further proceeding of Special Sessions Case No. 138 of 2019, State vs. Sandeep Jaiswal, U/S 363, 366, 376 I.P.C., U/S 16/17 & 3/4 of The Protection of Children from Sexual Offences Act, 2012 arising out of Case Crime No. 142 of 2017, P.S. Kolhui, District Maharajganj, pending in the court of Additional Sessions Judge, Court No. 1, Maharajganj.
It is further prayed that this Hon’ble Court may be pleased to stay the effect and operation of the impugned charge sheet being Charge Sheet No. A-50 dated 07.03.2019 and order dated 02.4.2019 passed by Additional Sessions Judge, Court No. 1, Maharajganj and all further proceeding of Special Sessions Case No. 138 of 2019, State vs. Sandeep Jaiswal, U/S 363, 366, 376 I.P.C., U/S 16/17 & 3/4 of The Protection of Children from Sexual Offences Act, 2012 arising out of Case Crime No. 142 of 2017, P.S. Kolhui, District Maharajganj, pending in the court of Additional Sessions Judge, Court No. 1, Maharajganj.
4 . The prosecution case as per the First Information Report lodged on 28.5.2017 by Dayashankar/the opposite party no.2 under Sections 363, 366 I.P.C. and 16/17 The Protection of Children from Sexual Offences Act, 2012, Police Station- Kolhui, District Maharajganj, against the applicant Sandeep alleges therein that on 3.5.2017 Wednesday at about 12:30 hours, his grand-daughter aged about 16 years went from house to Kolhui for purchasing some articles but did not return till evening. She was searched a lot but she could not be traced. He came to know that on the same day Sandeep the applicant son of Dinesh, village- Karuawal Mahaveer Nagar, Police Station Kolhui, District Maharajgaj was also missing and it transpires that it was Sandeep who enticed away his grand-daughter and he might establish illegal relationship with her. Since then he searched his grand-daughter and now came here to lodge a report. Thus the present F.I.R. has been lodged.
5. The matter was investigated and a charge sheet was submitted against the accused/applicant upon which the trial court took cognizance and summoned the applicant vide order dated 2.4.2019.
6 . The applicant was granted bail vide order dated 8.5.2019 passed by this Court in Criminal Misc. Bail Application No. 17987 of 2019 ( Sandeep Jaishwal Vs. State of U.P.), copy of the said order is annexure no. 17 to the affidavit.
7. The trial court vide its order dated 21.11.2019 framed charges against the applicant under Sections 363, 366, 376 IPC and Sections 3/4 and 16/17 POCSO Act. The said charge was read to the applicant-accused who pleaded not guilty and claimed to be tried.
8. The trial then started as Special Session Case No. 138 of 2019 (State Vs. Sandeep Jaishwal) in which the statements of PW-1/ Dayashankar the first informant, P.W.-2/Vandana Pandey the mother of the victim and P.W.-3 the victim were recorded.
9 . The present application under Section 482 Cr.P.C. has thus been filed with the prayers as aforesaid.
10 . Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim left her house out of her own sweet will and married him and from the said wedlock a boy was born who is now aged about five years. The victim and the applicant are living together as husband and wife and the deponent no. 1 of the present case is victim herself. It is argued the victim/ deponent no. 1 did not support the version of the prosecution and further she is residing happily with the applicant along with their children.
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11 . Per contra, learned counsel for the State opposed the prayer for quashing and argued the applicant is named in the F.I.R. and there are allegations against him. The trial in the present matter has started in which P.W.-1 first informant, P.W.-2 mother of the victim and the P.W.-3 the victim have been examined. The quashing of the proceedings at this stage, may not be in the fitness of things as scuttling the trial at this stage will not be proper.
12 . After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is named in the First Information Report. There are allegations against him. The investigation concluded and charge sheet was submitted on which the trial court took cognizance and summoned the applicant. On appearance of the applicant, the trial court framed charges against him. The said charges were read to the applicant to which he pleaded not guilty and claimed to be tried. The trial started in which the statement of PW-1 who is the first informant, P.W.-2 who is mother of the victim and P.W.-3 the victim has been recorded. Now at this stage, the present petition has been filed for quashing of the charge sheet and the order of taking cognizance and summoning the applicant at such belated stage.
13. The Apex Court in the case of Ratilal Bhanji Mithani Vs. State of Maharashtra and others : (1979) 2 SCC 179 has held that after framing of charge there cannot be a discharge but only an acquittal can be done on a finding of not guilty turning on the merits of the case. It has been held as follows :-
“253. (1) If, upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
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the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”
Section 254 indicates when and in what circumstances a charge should be framed. It reads:
“254. If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.”
Section 255 enjoins that the charge shall then be read over and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record that plea, and may convict him thereon.
25. Section 256 provides that if the accused refuses to plead or does not plead, or claims to be tried, he shall be required to state at the next hearing whether he wishes to cross-examine any of the witnesses for the prosecution whose evidence has been taken, and if he says he so wants to cross-examine, the witnesses named by him shall be recalled and he will be allowed to further cross-examine them. “The evidence of any remaining witnesses for the prosecution shall next be taken” and thereafter the accused shall be called upon to enter upon and produce his defence.
26. Section 257 is not material. Section 258(1) provides that if in any case in which a charge has been framed the Magistrate finds the accused not guilty, he shall record an order of acquittal. Sub-section (2) requires, where in any case under this chapter the Magistrate does not proceed in accordance with the provisions of Section 349 or Section 562, he shall, if he finds the accused guilty, pass sentence on him in accordance with law.
27. From the scheme of the provisions noticed above it is clear that in a warrant case instituted otherwise than on a police report, “discharge” or “acquittal” of accused are distinct concepts applicable to different stages of the proceedings in Court. The legal effect and incidents of “discharge” and “acquittal” are also different. An order of discharge in a warrant case instituted on complaint, can be made only after the process has been issued and before the charge is framed. Section 253(1) shows that as a general rule there can be no order of discharge unless the evidence of all the prosecution witnesses has been taken and the Magistrate considers for reasons to be recorded, in the light of the evidence, that no case has been made out. Sub-section (2) which authorises the Magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless, is an exception to that rule. A discharge without considering the evidence taken is illegal. If a prima facie case is made out the Magistrate must proceed under Section 254 and frame charge against the accused. Section 254 shows that a charge can be framed if after taking evidence or at any previous stage, the Magistrate, thinks that there is ground for presuming that the accused has committed an offence triable as a warrant case.
28. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge, and
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reverse the proceedings to the stage of Section 253 and discharge the accused. The trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an inquiry. After the framing of the charge if the accused pleads not guilty, the Magistrate is required to proceed with the trial in the manner provided in Sections 254 to 258 to a logical end. Once a charge is framed in a warrant case, instituted either on complaint or a police report, the Magistrate has no power under the Code to discharge the accused, and thereafter, he can either acquit or convict the accused unless he decides to proceed under Section 349 and 562 of the Code of 1898 (which correspond to Sections 325 and 360 of the Code of 1973).
29. Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be based upon a “finding of not guilty” turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.
30. If after framing charges the Magistrate whimsically, without appraising the evidence and without permitting the prosecution to produce all its evidence, “discharges” the accused, such an acquittal, without trial, even if clothed as “discharge”, will be illegal. This is precisely what has happened in the instant case. Here, the Magistrate, by his order dated December 12, 1962, framed charges against Mithani and two others. Subsequently, when on the disposal of the revision applications by Gokhale, J., the records were received back he arbitrarily deleted those charges and discharged the accused, without examining the “remaining witnesses” of the prosecution which he had in the order of framing charges, said, “will be examined after the charge”.”
(emphasis supplied)
14. The situation is the same in the present matter. After taking cognizance on the chargesheet, framing of charges, accused not pleading guilty and claiming to be tried, the trial starting and three witnesses have been examined, the applicant who is facing trial comes up challenging the cognizance/summoning order dated 02.4.2019 and the charge sheet at such a belated stage.
15. 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; State of Bihar Vs. P. P. Sharma : 1992 Supp (1) SCC 222; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Zandu Pharmaceuticals Works Ltd. Vs. Mohammd Shariful Haque : (2005) 1 SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava : (2009) 9 SCC 682; 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; Md. Allauddin Khan Vs. State of Bihar : (2019) 6 SCC 107; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706; Rajeev Kourav Vs. Balasaheb & others : (2020) 3 SCC 317;
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Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467, 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/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution.
16. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows:
"23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirety 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/charge-sheet and other documentary evidence, if any, on record.
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 debated before this Court and various High Courts. Though in a 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.
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:-
“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.
(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
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entirety do not prima facie constitute any offence or make out a case against the accused.
(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.
(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.
(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.
(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.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or 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.
(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 to private and personal grudge.”
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.
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.
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/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. "
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17. In the case of Ramveer Upadhyay Vs. State of U.P. : 2022 SCC Online SC 484 the Apex Court has held in paragraph nos. 27, 38 and 39 that quashing of a criminal case by exercising jurisdiction under Section 482 Cr.P.C. should be done in exceptional cases only. Paragraphs 27, 38 and 39 are quoted herein:
"27 . Even though, the inherent power of the High Court under Section 482 of the Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C is not to be exercised for the asking.
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38 . Ends of justice would be better served if valuable time of the Court is spent on hearing appeals rather than entertaining petitions under Section 482 at an interlocutory stage which might ultimately result in miscarriage of justice as held in Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474 .
39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Atrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C. "
18. Further in the case of Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 in para 49 the Apex Court has held as under:
"49. In exercise of power under section 482 of the Cr.P.C., 1973 the Court does not examine the correctness of the allegation in the complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. "
19. Regarding the second limb of argument that there is no evidence against the applicant, it is apparent from the records that the trial court after prima facie finding a case to be made out against the applicant took cognizance upon the charge sheet, summoned him and then charges were also framed against him under sections 363, 366, 376 IPC and Sections
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16/17 & 3/4 POCSO Act. The trial has started in which three prosecution witnesses have been examined. The applicant who is a named accused, charged accused is being tried but he has not tried to claim discharge before the trial court at the appropriate stage.
20. The proposition of law with regards to maintainability of a petition under section 482 Cr.P.C. even at the stage of recording of evidence in trial is not in dispute at all but the decision of the same would be in the facts and circumstances of each and every case independently.
21. In view of the discussion as above, the law on the issue, the prima facie material available against the applicant and also the stage of the case, this Court does not find it to be a fit case for interference, the present application under Section 482 Cr.P.C. is thus dismissed.
(Samit Gopal,J.)
Order Date :- 26.5.2023 Naresh
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Digitally signed by :- NARESH KUMAR High Court of Judicature at Allahabad
3 issues framed by the court
Whether the High Court can exercise inherent powers under Section 482 Cr.P.C. to quash criminal proceedings at the trial stage after cognizance and framing of charge.
Whether the allegations prima facie constitute offences warranting trial under IPC and POCSO Act.
If the case is an exceptional fit for quashing as the allegations disclose a cognizable offence and trial has commenced.
Colour shows how this judgement treated each authority
Ratilal Bhanji Mithani Vs. State of MaharashtraApplied¶21
Ratilal Bhanji Mithani Vs. State of Maharashtra : (1979) 2 SCC 179 · Who else cites this
R.P. Kapur Vs. State of PunjabReferred¶15
R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866 · Who else cites this
State of Haryana and Ors. Vs. Bhajan LalReferred¶15
State of Haryana and Ors. Vs. Bhajan Lal : 1992 Supp (1) SCC 335 · Who else cites this
Nallapareddy Sridhar Reddy Vs. The State of Andhra PradeshReferred¶15
Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh : (2020) 12 SCC 467 · Who else cites this
Priti Saraf & anr. Vs. State of NCT of Delhi & anr.Referred¶16
Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 · Who else cites this
Arnab Manoranjan Goswami Vs. State of MaharashtraReferred¶17
Arnab Manoranjan Goswami Vs. State of Maharashtra : 2020 SCC Online SC 964 · Who else cites this
Ramveer Upadhyay Vs. State of U.P.Referred¶17
Ramveer Upadhyay Vs. State of U.P. : 2022 SCC Online SC 484 · Who else cites this
Hamida v. Rashid @ Rasheed and OthersReferred¶17
Hamida v. Rashid @ Rasheed and Others, (2008) 1 SCC 474 · Who else cites this
Daxaben Vs. State of GujaratReferred¶18
Daxaben Vs. State of Gujarat : 2022 SCC Online SC 936 · Who else cites this
1 provisions across 1 enactments
Sandeep Jaiswal
State Of U.P.
Samit Gopal
Narresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
