Dismissed

Vipin Kumar Alias Bipin Kumar v. State of U.P. and Another

Allahabad HC3 Oct 2024A482/33922/2024

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 CrPC seeking to quash corruption proceedings against a government employee. The court held that with the investigation concluded and charge sheet filed, the 482 petition could not function as a mini-trial to weigh evidence or examine witness reliability.

What did the court decide?

Prayer for quashing of charge sheet, cognizance order, and proceedings under Section 7/13 of the Prevention of Corruption Act is refused.

Vipin Kumar Alias Bipin Kumar Vs State of U.P. and Another — Corruption | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:162818

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Court No. - 64

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Case :- APPLICATION U/S 482 No. - 33922 of 2024

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Applicant :- Vipin Kumar Alias Bipin Kumar Opposite Party :- State of U.P. and Another

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Hon'ble Samit Gopal,J.

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Heard Sri Bharat Singh Pankaj, learned counsel for the applicant and Sri Triveni Saran Rai, learned counsel for the State and perused the record.

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The present application under Section 482 Cr.P.C. has been filed by the applicant Vipin Kumar @ Bipin Kumar with the prayers to allow the present application and quash the charge sheet No. 201/2023 dated 21.03.2023 including cognizance order dated 08.11.2023 and entire proceedings of Session Case No. 2700 of 2023 (State Vs. Vipin Kumar) arising out of case crime No. 676 of 2022, under Section 7/13 of the Prevention of Corruption Act, P.S. Kotwali, District Barabanki, pending before learned Special Judge, Prevention of Corruption Act, Gorakhpur and with a further prayer to stay the proceedings of the aforesaid case.

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The facts of the case are the First Information Report was lodged on 07.07.2022 by Chaman Mishra the opposite party no.2 against the applicant with the allegation that he is a Press Reporter. His relative had applied for a license for wholesale chemist on which Seema Singh the Drug Inspector, Barabanki visited the spot and called him on the next day. On the next day, when he went to the office, she told him that all her work is looked after by Clerk Vipin and he may talk to him outside. When he talked to Vipin there was a demand of Rs. 80,000/- as bribe after which on great persuasion Rs. 10,000/- was reduced and it was stated that nothing less than Rs. 70,000/- would be taken since the money is taken by Madam and forwarded to Faizabad also. The report is given by Madam but the license is issued from Faizabad. Later on Rs. 55,000/- was given to the Clerk Vipin on which he told him that the remaining amount of Rs. 15,000/- be given tomorrow and then only license would be issued. On not issuing the license, Clerk Vipin demanded Rs. 15,000/- which was given to him and thus the total amount of Rs. 70,000/- was given. A video clipping of the entire transaction has been made. Report be lodged and action be taken.

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The matter was investigated and a charge sheet dated 21.03.2023 was filed against Vipin Kumar under Section 7/13 of the Prevention of Corruption Act. The Court concerned took cognizance upon the same vide its order dated 08.01.2023 and summoned the applicant.

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Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case. It is submitted that the applicant was appointed as 4th class employee on 14.09.2009 in the CMO Office, District Barabanki under the dying-in-harness after his father had died. It is submitted that no money was recovered from the applicant. It is submitted that the applicant challenged the FIR before this Court in Crl. Misc. Writ Petition No. 4968 of 2022 (Vipin Kumar Vs. State of U.P. and others) in which a Division Bench vide order dated 18.07.2022 disposed of the same finding the matter in which the sentence is seven years or less. It is submitted that the investigation has not been completed in the light of Sections 17A, 18, 19, 20 of the Prevention of Corruption Act. It is further submitted that the witnesses in the matter are unreliable. It is submitted that looking to the same, the present case deserves to be allowed. The proceedings and the summoning order also deserves to be quashed.

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Per contra, learned counsel for the State opposed the prayer for quashing.

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After having heard learned counsel for the parties and perusing the records, it is evident that the applicant is named in the First Information Report. He is a government servant. The investigation has concluded and a charge sheet has been submitted against the applicant on which the court concerned has taken cognizance and summoned him. The material collected during investigation cannot be appreciated in a 482 petition as a mini trial. Merely non recovery of money, cannot be the ground of quashing of proceedings. The law with regards to the quashing of proceedings is trite. In the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others : (2020) 10 SCC 118 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. It has been held as follows:

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

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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. 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 dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

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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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Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts in the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into as it is. Evidence needs to be led to substantiate the defence of the accused.

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I do not find any justification to quash the proceedings and the summoning order against the applicant. The case does not fall in any of the categories recognized by the Apex Court which may justify its quashing.

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The prayer for quashing the summoning order/proceedings of case is refused as I do not find any abuse of the Court's process either.

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The petition lacks merits and is accordingly, dismissed .

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Order Date :- 4.10.2024 M. ARIF

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(Samit Gopal, J.)

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Digitally signed by :- MOHAMMAD ARIF High Court of Judicature at Allahabad

Vipin Kumar Alias Bipin Kumar v. State of U.P. and Another

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Vipin Kumar Alias Bipin Kumar v. State of U.P. and Another

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