Pankaj Agarwal vs State Of Uttarakhand And Another on 10 July, 2017

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application (C-482) No. 342 of 2017

Pankaj Agarwal …………. Applicant

versus

State of Uttarakhand another …………. Respondents

Mr. Sudhir Kumar, Advocate for the applicant.
Mr. Nandan Arya, Dy. Advocate General for the respondent State.
Mr. Lalit Sharma, Advocate for respondent no. 2.

U.C. Dhyani, J.(Oral)

By means of present application under Section 482
Cr.P.C., the applicant seeks to quash the judgment dated
23.12.2016, passed in criminal revision no. 91 of 2016,
Pankaj
Agarwal vs State of Uttarakhand, passed by Addl. Sessions
Judge II, District Nainital and order dated 21.07.2016, passed
by Addl. Chief Judicial Magistrate, Haldwani, District Nainital
in criminal case no. 2607 of 2014,
State vs Jyoti Singh and
another, as also entire proceedings of criminal case no. 2607 of
2014,
State vs Jyoti Singh and another, under Sections 389,
420, 504, 506 IPC, police station, Haldwani, pending before
Addl. Chief Judicial Magistrate, Haldwani, District Nainital.

2) An application for discharge was moved on behalf
of the accused-applicant. Learned Addl. Chief Judicial
Magistrate, Haldwani by an elaborate order dated 21.07.2016,
dismissed such an application and found that there was
sufficient material on record to frame the charge against the
accused-applicant. Aggrieved against the same, accused-
applicant preferred criminal revision, which was dismissed by
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learned II Addl. Sessions Judge, Nainital, vide order dated
23.12.2016, again, by an elaborate order. The Court need not
repeat the grounds on the basis of which such application was
dismissed. Still feeling aggrieved against the same, present
application under
Section 482 Cr.P.C. has been filed by the
accused-applicant expecting that this Court will exercise its
inherent jurisdiction to come to his rescue.

3) FIR against the accused-applicant and another was
sent by the complainant (respondent no. 2 herein) from jail,
alleging therein, that the complainant was appointed on the post
of Finance Officer, in the Directorate of Training and
Employment, Haldwani in June 2011. In February 2012, Jyoti
Singh started working as Junior Assistant through UPNL.
Divorce was granted to the complainant by Family Court,
Allahabad in March 2010, an appeal against which was pending
before Hon’ble Allahabad High Court. Firstly, in August 2012,
Jyoti Singh sent an SMS and thereafter she started making
contact with him on one pretext or another. Jyoti Singh told the
complainant that she is not happy with her husband, who used
to beat her and is a characterless person. In November 2012,
Jyoti Singh put marriage proposal before the complainant, on
which he told her that he will only marry her after finalization
of the divorce case. Her sisters also gave their consent to this.
Jyoti Singh and Pankaj Agarwal filed a divorce case, with
mutual consent, in Decemebr 2012, which was decided in
February 2013, but Jyoti Singh and Pankaj Agarwal, used to
live as husband and wife even after getting divorce. In order to
show trust on me, Jyoti Singh made the complainant as
nominee in SBI General Policy and showed her relation as
spouse. In the meantime, complainant and accused visited
Kwaja Sharif Dargah, Ajmer; Shridi Mandir and at various
temples in Haridwar for darshan and performed religious
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service together. Jyoti continuously used to extort money from
the complainant in the name of her children and husband. As
the complainant had full belief that after finalization of his
divorce case, Jyoti Singh will marry him, so he introduced her
to his family members, close friends and colleagues of his
office. Jyoti used to visit the complainant with her freewill and
used to take money from him and usually stays at the house of
Pankaj. Jyoti and Pankaj continuously used to demand money
from the complainant and on being refused, Pankaj quarrels
with the complainant by threatening him to implicate in a false
case. Pankaj also used to threat the complainant on his father’s
mobile no. 9450619233. When the divorce case of the
complainant got finally adjudicated, he asked for marriage, then
Pankaj demanded a sum of Rs. 25 lakhs and Jyoti used to give
him a slip on marriage on one pretext or other. On 31st
December 2013, complainant straight away told Jyoti that if she
will not marry him now and not restrain herself from going to
Pankaj’s house, then he will not pay any money to her, as a
consequence, Jyoti lodged an FIR no. 26 / 14 against the
complainant on 12.01.2014, in police station Kotwali.
Complainant received a charge sheet from the court of ACJM,
Haldwani on 10.06.2014 which makes it apparent that none of
the neighbours of Jyoti and Pankaj was aware that they were
divorcee and only for name sake only and with the intention of
blackmailing the complainant got divorce by filing false
affidavit in the court. Jyoti Singh could not produce any
evidence before I.O. Punita Balodi that she had ever proposed
the complainant and he had refused the same. Whereas, the
complainant had produced the SMSs wherein Jyoti Singh had
demanded money and the complainant had made proposal of
marriage to her. Various photographs where the accused was
seen with the family members of complainants were also filed.
Jyoti Singh remained in constant touch even after lodging of
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FIR and told that she will change her statement on receiving the
money. Jyoti Singh, even in the FIR lodged by her, could not
disclose anything regarding said MMS to the I.O. Therefore, it
is requested that criminal case be registered against Jyoti Singh
and Pankaj Agarwal under relevant Sections in respect of
cheating, blackmailing, defamation and for hatching criminal
conspiracy.

4) Learned counsel for the applicant vehemently
submitted, among other things, that present FIR is nothing but a
counterblast to the FIR lodged by the applicant against
respondent no. 2 under
Sections 328, 323, 354D, 376, 506 IPC,
which is pending before the trial court and in which also
application for discharge has been rejected. It is also informed
to the Court that against rejection of such an application and
against framing of charge, C-482 petition no. 437 of 2015 has
been filed by the respondent no. 2, which is also listed in
today’s cause list. Learned counsel for the applicant is at pains
to argue that there is nothing material on record to show that the
ingredients of
Section 389, 420, 504, 506 IPC are fulfilled, on a
perusal of the material brought on record.

5) The scope of discharge has been highlighted by the
Hon’ble Apex Court in a catena of decisions, including the one
in
Shoraj Singh Ahlawat others vs State of U.P. another,
AIR 2013 SC 52.

6) First of all, the Court has to see what is the scope
of interference in framing of charge? The Hon’ble Supreme
Court in Shoraj Singh Ahlawat (supra) while relying upon
various decisions rendered in
Preeti Gupta another vs.
State of Jharkhand another (2010) 7 SCC 667,
Union of
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READ  H vs District : Osmanabad on 4 October, 2012

India vs. Prafulla Kumar Samal another, (1979) 3 SCC 4;
Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9
SCC 368;
State of Orissa vs. Debendra Nath Pandhi, (2005)
1 SCC 568;
Onkar Nath Mishra others vs. State (NCT of
Delhi) another, (2008) 2 SCC 561;
Shakson Belthissor vs.
State of Kerala another, (2009) 14 SCC 466 and
Rumi
Dhar (Smt.) vs. State of West Bengal another, (2009) 6
SCC 364, has observed as follows:

“8. On behalf of the appellant it was argued on the
authority of the decisions of this Court in
Preeti Gupta
and Anr. v. State of Jharkhand Anr. (2010) 7 SCC
667,
Union of India v. Prafulla Kumar Samal and Anr.
(1979) 3 SCC 4,
Sajjan Kumar v. Central ureau of
Investigation (2010) 9 SCC 368,
State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568,
Onkar Nath
Mishra and Ors. v. State (NCT of Delhi) and Anr.
(2008) 2 SCC 561,
Shakson Belthissor v. State of Kerala
and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v.

State of West Bengal and Anr. (2009) 6 SCC 364, that
while considering an application for discharge the
Court can examine the evidence on record and
discharge the accused persons if there is no possibility
of the accused being found guilty on the basis of such
evidence specially in cases where the accused produces
unimpeachable evidence in support of his defence. It
was also contended that while examining whether the
Court should or should not discharge the accused, it
must be remembered, that
Section 498-A of the IPC is a
much abused provision and that exaggerated versions
of small incidents are often resented to falsely
implicate, harass and humiliate the husband and his
relatives. Applying the principles set out in the above
decisions the appellants were, according to Ms. Geeta
Luthra, learned counsel appearing for them, entitled to
a discharge not only because there was an inordinate
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delay in the filing of the complaint by respondent No.1
but also because the statements made under
Section 161
Cr.P.C. by the witnesses who were either planted or
merely chance witnesses were contradictory in nature.
It was argued that two Investigating Officers having
investigated the matter and found the allegations to be
false, there was no reason for the Court to believe the
story set up by the wife who had suffered a decree for
divorce in regard to which she had written to the Army
Authorities a letter dated 2nd October, 2006 stating that
she was not pursuing the matter in any Court.
Appellant No.3-Naveen Ahlawat having got re-
married on 30th October, 2006 the incident referred in
the complaint was a fabrication which aspect the
Courts below had failed to consider thus failing to
protect the appellants against harassment and the
ignominy of a criminal trial.

9. On behalf of respondent No.2, it was per contra
argued that her husband had filed a divorce petition
against her in the Family Court, Meerut showing
respondent No.2 to be residing with her parents at 327,
Prabhat Nagar, Meerut, whereas she was actually
residing with the appellants along with her daughter at
No. 9, Tigris Road, Delhi Cantt, Delhi. It was further
argued that appellant No.3 had obtained an ex parte
decree order of divorce by fraudulent means and by
forging signatures of respondent No.2, acknowledging
receipt of the notice which she had never received from
the concerned Court. This was conclusively established
by the fact that the ex parte decree dated 31st May,
2006 had been eventually set aside by the Court in
terms of order dated 28th July, 2007. Allegations
regarding physical torture of respondent No.2 and her
being abandoned on the road on the date of incident in
question as also the allegation about dowry
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harassment were factually correct and made out a
clear case for prosecuting the appellants. Appellant
No.3 had, according to the counsel for the respondent,
married one Aditi on 30th October, 2006. It was also
argued that letter referred to by appellant No.3 as also
letter dated 2nd November, 2006 allegedly written by
respondent No.2 were forgeries committed by the
appellants. The trial Court was, in the light of the
available material, justified in refusing to discharge the
accused persons and that the grounds for discharge set
up by the appellants could be examined only after the
case had gone through full-fledged trial. Reliance was
placed upon a decision of this Court in
Union of India
v. Prafulla Kumar Samala and Anr. (1979) 3
SCC 5.

10. The case at hand being a warrant case is governed
by
Section 239 of the Cr.P.C. for purposes of
determining whether the accused or any one of them
deserved to be discharged.
Section 239 is as under:
“239. When accused shall be discharged.

If, upon considering the police report and the
documents sent with it under
section 173 and making
such examination, if any, of the accused as the
Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being
heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the
accused, and record his reasons for so doing.”

11. A plain reading of the above would show that the
Court trying the case can direct discharge only for
reasons to be recorded by it and only if it considers the
charge against the accused to be groundless.
Section
240 of the Code provides for framing of a charge if,
upon consideration of the police report and the
documents sent therewith and making such
8

examination, if any, of the accused as the Magistrate
thinks necessary, the Magistrate is of the opinion that
there is ground for presuming that the accused has
committed an offence triable under Chapter XIX, which
such Magistrate is competent to try and which can be
adequately punished by him. The ambit of
Section 239
Cr.P.C. and the approach to be adopted by the Court
while exercising the powers vested in it under the said
provision fell for consideration of this Court in
Onkar
Nath Mishra and Ors. v. State (NCT of Delhi)
and Anr. (2008) 2 SCC 561. That too was a case in
which a complaint under
Sections 498-A and 406 read
with
Section 34 of the I.P.C. was filed against the
husband and parents in-law of the complainant-wife.
The Magistrate had in that case discharged the accused
under
Section 239 of the Cr.P.C, holding that the charge
was groundless. The complainant questioned that
order before the Revisional Court which directed the
trial Court to frame charges against the accused
persons. The High Court having affirmed that order,
the matter was brought up to this Court. This Court
partly allowed the appeal qua the parents-in-law while
dismissing the same qua the husband. This Court
explained the legal position and the approach to be
adopted by the Court at the stage of framing of charges
or directing discharge in the following words:
“11. It is trite that at the stage of framing of charge the
court is required to evaluate the material and
documents on record with a view to finding out if the
facts emerging therefrom, taken at their face value,
disclosed the existence of all the ingredients
constituting the alleged offence. At that stage, the court
is not expected to go deep into the probative value of
the material on record. What needs to be considered is
whether there is a ground for presuming that the
offence has been committed and not a ground for
9

convicting the accused has been made out. At that
stage, even strong suspicion founded on material which
leads the court to form a presumptive opinion as to the
existence of the factual ingredients constituting the
offence alleged would justify the framing of charge
against the accused in respect of the commission of that
offence .”

(emphasis supplied)

12. Support for the above view was drawn by this
Court from earlier decisions rendered in
State of
Karnataka v. L. Muniswamy 1977 Cri.LJ 1125,
State of Maharashtra Ors. v. Som Nath
Thapa and Ors. 1996 Cri.LJ 2448 and
State of
M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In
Som Nath’s case (supra) the legal position was
summed up as under:

“if on the basis of materials on record, a court
could come to the conclusion that commission of the
offence is a probable consequence, a case for framing
of charge exists. To put it differently, if the court were
to think that the accused might have committed the
offence it can frame the charge, though for conviction
the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage
of framing of a charge, probative value of the materials
on record cannot be gone into; the materials brought
on record by the prosecution has to be accepted as true
at that stage. ”

(emphasis supplied)

13. So also in Mohanlal’s case (supra) this Court
referred to several previous decisions and held that the
judicial opinion regarding the approach to be adopted
for framing of charge is that such charges should be
framed if the Court prima facie finds that there is
sufficient ground for proceeding against the accused.

10

The Court is not required to appreciate evidence as if to
determine whether the material produced was
sufficient to convict the accused. The following passage
from the decision in Mohanlal’s case (supra) is in this
regard apposite:

“8. The crystallized judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding
against the accused. The court is not required to
appreciate evidence to conclude whether the materials
produced are sufficient or not for convicting the
accused.”

14. In State of Orissa v. Debendra Nath Pandhi
(2005) 1 SCC 568, this Court was considering
whether the trial Court can at the time of framing of
charges consider material filed by the accused. The
question was answered in the negative by this Court in
the following words:

“18. We are unable to accept the aforesaid contention.
The reliance on Articles 14 and 21 is misplaced……
Further, at the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini-trial at the
stage of framing of charge. That would defeat the
object
of the Code. It is well-settled that at the stage of
framing of charge the defence of the accused cannot be
put forth. The acceptance of the contention of the
learned counsel for the accused would mean permitting
the accused to adduce his defence at the stage of
framing of charge and for examination thereof at that
stage which is against the criminal jurisprudence. By
way of illustration, it may be noted that the plea of
alibi taken by the accused may have to be examined at
the stage of framing of charge if the contention of the
accused is accepted despite the well settled proposition
11

that it is for the accused to lead evidence at the trial to
sustain such a plea. The accused would be entitled to
produce materials and documents in proof of such a
plea at the stage of framing of the charge, in case we
accept the contention put forth on behalf of the accused.
That has never been the intention of the law well settled
for over one hundred years now. It is in this light that
the provision about hearing the submissions of the
accused as postulated by
Section 227 is to be
understood. It only means hearing the submissions of
the accused on the record of the case as filed by the
prosecution and documents submitted therewith and
nothing more. The expression ‘hearing the submissions
of the accused’ cannot mean opportunity to file
material to be granted to the accused and thereby
changing the settled law. At the state of framing of
charge hearing the submissions of the accused has to be
confined to the material produced by the police………

xx xx xx xx

23. As a result of aforesaid discussion, in our view,
clearly the law is that at the time of framing charge or
taking cognizance the accused has no right to produce
any material…”

(emphasis supplied)

15. Even in Smt. Rumi Dhar v. State of West
Bengal Anr. (2009) 6 SCC 364, reliance
whereupon was placed by counsel for the appellants
the tests to be applied at the stage of discharge of the
accused person under
Section 239 of the Cr.P.C., were
found to be no different. Far from readily encouraging
discharge, the Court held that even a strong suspicion
in regard to the commission of the offence would be
sufficient to justify framing of charges. The Court
observed:

12

“…While considering an application for discharge filed
in terms of
Section 239 of the Code, it was for the
learned Judge to go into the details of the allegations
made against each of the accused persons so as to form
an opinion as to whether any case at all has been made
out or not as a strong suspicion in regard thereto shall
subserve the requirements of law…

16. To the same effect is the decision of this Court in
Union of India v. Prafulla Kumar Samal and
Anr. v. (1979) 3 SCC 4, where this Court was
examining a similar question in the context of
Section
227 of the Code of Criminal Procedure. The legal
position was summed up as under:

“10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge :

(1) That the Judge while considering the question
of framing the charges under Section 227 of the
Code has the undoubted power to sift and weigh
the evidence for the limited purpose of finding
out whether or not a prima facie case against the
accused has been made out:

(2) Where the materials placed before the Court
disclose grave suspicion against the accused
which has not been properly explained the Court
will be fully justified in framing a charge and
proceeding with the trial.

(3) The test to determine a prima facie case
would naturally depend upon the facts of each
case and it is difficult to lay down a rule of
universal application. By and large however if
two views are equally possible and the Judge is
satisfied that the evidence produced before him
while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused.

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(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge which under
the present Code is a senior and experienced
Judge cannot act merely as a Post Office or a
mouth-piece of the prosecution, but has to
consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
appearing in the case and so on. This however
does not mean that the Judge should make a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.”

7) Judging by the same yardstick, the Court does not
find any merit in the grounds which have been taken on behalf
of the applicant in present application under
Section 482
Cr.P.C. The Court need not reproduce those grounds which
have been taken by the applicants, as the same are part of the
record.

8) Hon’ble Apex Court in Amit Kapoor vs Ramesh
Chander and another, (2013) 1 SCC (Cri) 986, has laid down
certain principles in respect of exercise of jurisdiction under
Section 482 of Cr.P.C. One of the principle is that the Court
should apply the test as to whether the uncontroverted
allegations as made from the record of the case and the
documents submitted therewith prima facie establish the
offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach
such a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the court may interfere. Where
the factual foundation for an offence has been laid down, the
courts should be reluctant and should not hasten to quash the
14

proceedings even on the premise that one or two ingredients
have not been stated or do not appear to be satisfied if there is
substantial compliance with the requirements of the offence.
The power is to be exercised ex debito justitiae, i.e., to do real
and substantial justice for administration of which alone, the
courts exists.

9) There appears to be no illegality in the orders
under challenge. No interference is called for in the same at
this stage, as would also be evident from the law laid down by
Hon’ble Supreme Court in
Rajiv Thapar and others vs.
Madan Lal Kapoor (2013) 3 SCC 330. Para 28 of the said
ruling is reproduced here-in-below for convenience:

“28. The High Court, in exercise of its jurisdiction
under
Section 482 of the Cr.P.C., must make a just and
rightful choice. This is not a stage of evaluating the
truthfulness or otherwise of allegations levelled by the
prosecution/complainant against the accused. Likewise, it is
not a stage for determining how weighty the defences raised
on behalf of the accused is. Even if the accused is successful
in showing some suspicion or doubt, in the allegations
levelled by the prosecution/complainant, it would be
impermissible to discharge the accused before trial. This is
so, because it would result in giving finality to the
accusations levelled by the prosecution/complainant,
without allowing the prosecution or the complainant to
adduce evidence to substantiate the same. The converse is,
however, not true, because even if trial is proceeded with, the
accused is not subjected to any irreparable consequences.
The accused would still be in a position to succeed, by
establishing his defences by producing evidence in
accordance with law. There is an endless list of judgments
rendered by this Court declaring the legal position, that in a
case where the prosecution/complainant has levelled
allegations bringing out all ingredients of the charge(s)
levelled, and have placed material before the Court, prima
15

facie evidencing the truthfulness of the allegations levelled,
trial must be held.”

10) The Court was taken through the contents of FIR.
From a bare perusal of FIR, it is apparent that foundation of
criminal offence is laid against the present applicant in the
instant case. Criminal proceedings pending against him,
therefore, should not be quashed. He should not be discharged
either. The jurisdiction under
Section 482 Cr.P.C. should not
be exercised to stifle or scuttle the legitimate prosecution.

11) It is also the settled law that the factual
controversy need not be gone into by this Court in exercise of
its inherent jurisdiction. Inherent jurisdiction under
Section 482
Cr.P.C. has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid in the Section itself. The applicant, in the
instant case, is unable to pass those tests.

12) This Court is informed by learned counsel for
respondent no. 2 that Special Leave to Appeal (Crl.) no.
4109 of 2017 filed by main-accused Jyoti Singh against the
order dated 27.03.2017, passed by this Court, was dismissed
by Hon’ble Apex Court on 03.07.2017.

13) The application under Section 482 Cr.P.C. is,
therefore, dismissed. Liberty is, however, granted to the
applicant to place all the factual pleas before the trial court for
securing his acquittal, at an appropriate stage.

(U.C. Dhyani, J.)
Dt. July 10, 2017.

Negi

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