Dismissed

Mohammad Jaan and Another v. State of U.P. and Another

Allahabad HC27 Jun 2023A482/21328/2023

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed an application under Section 482 Cr.P.C. seeking quashing of a completed charge sheet in a criminal case involving cheating and criminal intimidation. The Court held that no grounds for quashing existed and directed the applicants to approach the trial court for bail or discharge.

What did the court decide?

Prayer for quashing refused; applicants directed to file bail application before the court below if they surrender.

Mohammad Jaan and Another Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:129096

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Court No. - 71

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Case :- APPLICATION U/S 482 No. - 21328 of 2023

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Applicant :- Mohammad Jaan And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Krishna Kant Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Dinesh Pathak,J.

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Applicants have invoked inherent jurisdiction of this Court under Section 482 to quash the impugned charge sheet no. 148 of 2019 dated 19.05.2019 as well as cognizance order dated 22.07.2019 in Case No.3140 of 2019 arising out of Case Crime No.95 of 2019 under section 406, 506 I.P.C. police station Tanda Rampur pending in the court of Learned Chief Judicial Magistrate, District Rampur.

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As per the F.I.R. version, the present applicant has taken loan from the complainant opposite party no. 2 for the purpose of purchasing a Truck. Initially, he has given 10 instalments, however subsequently he has stopped the remaining payment. When the employees of the complainant went to the applicant for demanding the instalment of remaining loan amount, he has threatened them to life and it is apprehended that he has also dismantled the Truck.

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Learned counsel for the applicant submits that false allegation has been made against the present applicant and he has falsely been implicated in the present matter.

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Per contra, learned A.G.A. has vehemently opposed the submissions as made by learned counsel for the applicant and contended that prima facie on the averment as made in the F.I.R., case is made out against the present applicant therefore no interference is warranted at this stage. It is further contended that petitioner has an opportunity to defend his case before the Trial Court and also apply for bail.

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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

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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

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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.

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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.

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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

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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 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

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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/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the 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. In paragraph 23 of the judgment it has been held as follows:-

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"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

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i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in

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Chapter XIV of the Code to investigate into a cognizable offence;

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ii) Courts would not thwart any investigation into the cognizable offences;

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iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

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iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

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vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

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viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

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ix) The functions of the judiciary and the police are complementary, not overlapping;

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x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

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xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

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xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that

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the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

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xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

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xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

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xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court.

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The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while

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dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

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xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

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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 charge sheet 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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After hearing learned counsel for the parties and perusing the averments made in the present application, prayer for quashing the same is refused as made in instant application.

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Before parting, learned counsel for the applicant submits that in all the 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.

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In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences. Under the 'Category A', those cases were referred wherein offences punishable with imprisonment of seven years or less not fall in the category of B/D and Hon'ble Apex Court has expounded the guidelines as to how ensure the presence of accused and consider his bail application. For ready reference, the guidelines under 'Category A' is quoted below:

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"After filing of charge-sheet/complaint taking of cognizance

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(a) Ordinary summons at the 1st instance/including permitting appearance through lawyer.

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(b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued.

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(c) NBW on failure to appear despite issuance of bailable warrant.

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(d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

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(e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided."

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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, 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 conspectus, this application is disposed of.

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Order Date :- 27.6.2023 Shaswat

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Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad

Mohammad Jaan and Another v. State of U.P. and Another

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Mohammad Jaan and Another v. State of U.P. and Another

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