Dismissed

Seema Tiwari and Another v. State of U.P. and Another

Allahabad HC28 Aug 2023A482/20496/2023

Case brief

AI extract

What is this about?

Applicants sought quashing of criminal proceedings under Section 482 Cr.P.C. alleging cross FIRs and lack of case under Section 308 IPC. Court held trial is appropriate for facts and evidence, dismissed quash application, and granted conditional bail consideration.

What did the court decide?

Application to quash proceedings dismissed; applicants directed to file bail application within 2 weeks.

Seema Tiwari and Another Vs State of U.P… — Contract and Commercial Disputes | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:173127

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 20496 of 2023

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Applicant :- Seema Tiwari And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ganesh 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 applicants and learned A.G.A. for the State.

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The present applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the entire proceeding of Criminal Case No. 138 of 2019 (State vs. Murli Manohar and others), under Sections 323/325/308 I.P.C., Police StationKotwali, District- Ghazipur, arising out of Case Crime No. 1339 of 2017, pending in the court of Chief Judicial Magistrate, Ghazipur.

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With respect to the incident dated 15.07.2017 took place at about 8.00 a.m. an F.I.R., being Case Crime No. 1339 of 2017 dated 15.05.2017, has been lodged by opposite party no. 2 with an allegation that all the accused with common intention entered into the agricultural field of the first informant and have assaulted to the applicant and his nephew with sharp-edged weapon, which inflicted injuries to them.

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It is submitted by the learned counsel for the applicants that with respect to the same incident in question cross cases have been filed by both the parties. Applicant no. 1, namely, Seema Tiwari has filed an F.I.R., being Case Crime No. 1338 of 2017 at about 10.30 a.m. with respect to the alleged incident dated 15.05.2017. However, in counterblast, opposite party no. 2 has lodged an F.I.R. at about 10.50 a.m. with respect to the same incident in question just to exert pressure upon the present applicants so that they may come to the compromise on the terms and conditions of opposite party no. 2. It is further submitted that injuries inflicted to the other side are simple in nature and by no stretch of imagination case

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under Section 308 I.P.C. could be made out. It is further submitted that false and malicious prosecution has been made against the present applicants, after F.I.R. being lodged on behalf of the present applicants.

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Per contra, learned A.G.A. has vehemently opposed the submissions as advanced 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 submitted that the charge sheet coupled with the material on record are sufficient to make out a case of cognizable offence against the present applicants relating to the incident in question. It is next contended that innocence of the present applicants cannot be inferred at this stage, which is subject matter of trial and can be adjudicated upon more appropriately by the trial court after considering the evidence to be adduced on behalf of the parties concerned. It is further contended that at this juncture no legal ground is made out to as warrant the indulgence of this Court to quash the entiry criminal proceeding in exercise of inherent jurisdiction under Section 482 Cr.P.C., therefore, instant application 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 applicant as well as learned A.G.A. and perusal of record, it reveals that in the eventuality of the cross first information reports filed on behalf of the parties, factum of incident took place on 15.05.2017 at about 8.00 a.m., prima facie, cannot be denied. So far as the fact as to who is aggressor in the incident in question is a matter of trial. The medical report reveals that both the parties have sustained injuries in the incident in question. Learned trial court has rightly taken the cognizance and issued summon after perusing the charge sheet and the material available on record. So far as non-applicability of Section 308 I.P.C., as submitted by the learned counsel for the applicants, is concerned, in my opinion, prima facie, considering the facts and circumstances of the present case, it cannot be said that no case is made out for cognizable offence under Section 308 I.P.C. Nature of the injuries inflicted to the parties cannot be made basis for the purposes of making out a cognizable offence under Section 308 I.P.C. Intention or knowledge of the accused that due to his act he

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would be guilty of culpable homicide not amounting to murder is paramount consideration for the purposes of applicability of Section 308 I.P.C. Therefore, in the given circumstances of the present case, considering the offencive acts took place between the parties, prima facie, present applicants have rightly been arraigned in the charge sheet under Section 308 I.P.C. Defence of the present applicants, as put forward by the learned counsel for the applicants, to prove their innocence are not liable to be examined at this juncture. This Court cannot conduct a mini trial in exercise of inherent jurisdiction under Section 482 Cr.P.C. The trial court is a competent authority to adjudicate the matter at length to examine the innocence of the present applicant after appraising the evidence on record.

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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

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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 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

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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 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.Gg.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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Resultantly, instant application is dismissed with no order as to costs.

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Before parting, learned counsel for the applicants submits that

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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 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 applicants appear/surrender 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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Order Date :- 28.8.2023 Pkb/

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

Seema Tiwari and Another v. State of U.P. and Another

Case brief

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Seema Tiwari and Another v. State of U.P. and Another

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