Dismissed

Dr. Jitendra Pandey and Ors. v. State of U.P. Thru. District Magistrate Faizabad and Ors.

Allahabad HC3 Jan 2024/219/2019

Case brief

AI extract

What is this about?

An application under Section 482 Cr.P.C. to quash a charge sheet and cognizance order alleging assault was dismissed. The court held that the power under Section 482 must be exercised sparingly and that the applicant failed to demonstrate that any of the exceptional circumstances for quashing were met.

What did the court decide?

The application under Section 482 Cr.P.C. challenging the charge sheet and cognizance order was dismissed.

Dr. Jitendra Pandey and Ors. Vs State of U.P… — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:494

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Court No. - 27

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Case :- APPLICATION U/S 482 No. - 219 of 2019

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Applicant :- Dr. Jitendra Pandey And Ors. Opposite Party :- State Of U.P. Thru. District Magistrate Faizabad And Ors. Counsel for Applicant :- Ashok Kumar Srivastava,Akhilesh Kumar Mishra,S M Singh Royekwar,Vijay Kumar

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Counsel for Opposite Party :- G.A.,Anuj Pandey,Deo Prakash Mishra,Rajeev Narayan Pandey,Rama Niwas Pathak,Sudhir Kumar Singh

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Hon'ble Subhash Vidyarthi,J.

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1. Heard Sri S M Singh Royekwar, learned counsel appearing for the applicants, Sri Puneet Kumar Yadav, learned Additional Government Advocate and Sri Rama Niwas Pathak, learned counsel for opposite party No.3 and perused the record.

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2. By means of the instant application filed under Section 482 Cr.P.C., the applicant has challenged the validity of the Charge Sheet No.2 of 2018 dated 23.05.2018 under Sections 147, 148, 149, 323, 504, 506, 452, 354Kha IPC, Police Station Pura Kalander, District Faizabad submitted in the Court of Additional Chief Judicial Magistrate, Faizabad arising out of Case Crime No.618 of 2017 as well as cognizance order dated 29.08.2018.

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3. The aforesaid case was initiated on the basis of FIR lodged on 29.10.2017 against 16 named persons, including the applicants, and 15 other unnamed persons, alleging that the accused persons entered the informant's house and assaulted the informant's mother causing injuries to her, due to which she fell unconscious. When the informant tried to intervene, she was also beaten up and molested.

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4. Prior to lodging of present FIR, FIR No.617 of 2017 was lodged from the side of the applicants alleging commission of cognizable offences by the persons from the informant side.

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5. Learned counsel for the applicants has submitted that trial court in furtherance of the FIR No.617 of 2017 stands concluded and accused persons had been convicted and sentenced. He has further submitted

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that present FIR has been lodged as a counter blast action on the basis of false allegations.

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6. On the last date, it was submitted before the Court that the parties belong to same family tree and there is a possibility of amicable settlement of the dispute. In furtherance of the order of this court, the applicants and opposite party No.3 are present before this Court and opposite party No.3 categorically stated that she is not willing to participate in mediation proceedings for amicable settlement of the dispute and she wants adjudication on merits of the case.

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7. The Hon'ble Supreme Court in the case State of Haryana Vs. Bhajan Lal , 1992 SCC (Cr.) 426 has laid down certain guidelines for exercise of jurisdiction under Section 482 Cr.P.C. in the following words:

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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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(a.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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(a.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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(a.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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(a.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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(a.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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(a.6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

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(a.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."

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8. After laying down the principles for exercise of the discretionary powers under Section 482 Cr.P.C. in Bhajan Lal (supra) , the Hon'ble Supreme Court proceeded to add a word of caution in the following words: -

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"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

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9. The expression "rarest of rare cases" used by the Hon'ble Supreme Court in Bhajan Lal has been explained in Google India (P) Ltd. v. Visaka Industries , (2020) 4 SCC 162 in the following words: -

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"43. As to what is the scope of the expression "rarest of rare cases" indicated in para 103, we may only refer to the judgment of this Court in Jeffrey J. Diermeier v. State of W.B.,(2010) 6 SCC 243 wherein the law laid down by a Bench of three Judges in Som Mittal (2) v. State of Karnataka (2008) 3 SCC 574 has been referred to : (Jeffrey J. Diermeier case(2010) 6 SCC 243, SCC p. 252, para 23)

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"23. The purport of the expression "rarest of rare cases", to which reference was made by Shri Venugopal, has been explained recently in Som Mittal (2) v. State of Karnataka (2008) 3 SCC 574. Speaking for a Bench of three Judges, the Hon'ble the Chief Justice said : (SCC pp. 580-81, para 9)

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''9. When the words "rarest of rare cases" are used after the words

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"sparingly and with circumspection" while describing the scope of Section 482, those words merely emphasise and reiterate what is intended to be conveyed by the words "sparingly and with circumspection". They mean that the power under Section 482 to quash proceedings should not be used mechanically or routinely, but with care and caution, only when a clear case for quashing is made out and failure to interfere would lead to a miscarriage of justice. The expression "rarest of rare cases" is not used in the sense in which it is used with reference to punishment for offences under Section 302 IPC, but to emphasise that the power under Section 482 CrPC to quash the FIR or criminal proceedings should be used sparingly and with circumspection.'"

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10. In N. Soundaram v. P.K. Pounraj , (2014) 10 SCC 616, the Hon'ble Supreme Court has been pleased to explain the principles governing exercise of power under Section 482 in the following manner: -

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"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling

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circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [See MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vinod Raghuvanshi v. Ajay Arora (2013) 10 SCC 581.]

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11. In Kaptan Singh vs. State of Uttar Pradesh and Others ; (2021) 9 SCC 35, the Hon'ble Supreme Court was pleased to hold that while deciding an application under Section 482 Cr.P.C., the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducing the trial. The Hon'ble Supreme Court referred to its earlier pronouncements in Dineshbhai Chandubhai Patel vs. State of Gujrat; (2018) 3 SCC 104 in which it was held that "in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. In the case of Dhruvaram Murlidhar Sonar vs. State of Maharashtra; (2019) 18 SCC 191 after considering the decisions of this Court in Bhajan Lal

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(Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C."

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12. The FIR discloses commission of cognizable offences by the accused persons, which allegation was established by the material collected during investigation and accordingly a charge-sheet has been submitted. Submission of the learned counsel for the applicants that the FIR has been lodged on the basis of false allegations does not provide a ground for exercise of jurisdiction of this Court under Section 482 Cr.P.C., wherein this Court cannot examine correctness of the allegations by holding a mini trial it is to be left to be done by the trial court.

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13. The application lacks merit and is hereby dismissed . In case the applicants take recourse to any other remedy available to them under law, the same may be decided in accordance with law without being influenced by this order.

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(Subhash Vidyarthi, J.)

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Order Date :- 3.1.2024 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Dr. Jitendra Pandey and Ors. v. State of U.P. Thru. District Magistrate Faizabad and Ors.

Case brief

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Dr. Jitendra Pandey and Ors. v. State of U.P. Thru. District Magistrate Faizabad and Ors.

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