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Rajeev Gupta vs State Of U.P. And Another on 20 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 71 A.F.R.

Case :- APPLICATION U/S 482 No. – 5289 of 2020

Applicant :- Rajeev Gupta

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Anmol Tiwari

Counsel for Opposite Party :- G.A.

Hon’ble Rajendra Kumar-IV,J.

1. Heard Sri S. K. Tiwari, learned counsel for applicant, learned AGA for State and perused the material available on record.

2. Applicant has invoked jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) challenging the order dated 31.08.2018, passed by Chief Judicial Magistrate, Kannauj, in Complaint Case No. 2386 of 2017, Smt. Neeraj v. Rajeev Gupta and Another, under Sections 376-D and 506 IPC, Police Station Chhibramau, District Kannauj along with entire proceeding of the said case, whereby applicant has been summoned to face the trial under the aforesaid Sections.

3. Brief facts giving rise to present case are that the complainant-Smt. Neeraj moved an application under Section 156(3) Cr.P.C. before the CJM concerned stating that on 4.9.2016, at about 7:30 pm, accused Rajeev Gupta and his friend Prashant came to her house by Car with driver and told that her brother was ill believing them she went with them by Car. They reached near Akbarpur stopped the Car at lonely place and accused persons Rajeev and Prashant molested her, put off her clothes by force and committed rape and took Rs. 9,000/- from her purse. Accused persons extended threat to kill her brother, if any complaint is made to anywhere. On the application of Informant, a Case Crime No. 99 of 2017 under the aforesaid sections in the Police Station concerned was registered. Matter was investigated by Investigating Officer who submitted final report. Protest application was made by Informant on the Final Report (FR) submitted by Investigating Officer, came to be registered as complaint case. Trial Court proceeded to record the statement of prosecutrix under Section 200 Cr.P.C. and statement of Shakuntala Devi (her mother) and Ishwari Devi under Section 202 Cr.P.C., found prima facie evidence and sufficient ground for proceedings, summoned the present applicant to face the trial under the aforesaid Sections by impugned order dated 31.8.2018, which is under challenge.

4. Informant herself supported the prosecution case in her statement under Section 202 Cr.P.C. and mainly stated that accused applicant along with other co-accused committed rape with her and took Rs. 9,000/- from her purse. Smt. Shakuntala and Ishwari Devi also supported the case before them that accused Rajeev and Prashant took victim with them by Car on the pretext that her brother was seriously ill. It is further stated in their statement that victim told them on returning that accused applicant and other co-accused committed rape with her.

5. Learned counsel for applicant submits that the applicant is innocent; he has committed no offence and has been falsely implicated in the present case by complainant. In the matter, Investigating Officer, finding no evidence during investigation submitted final report. It is further submitted that there is no medical of victim, no statement of victim under Section 164 Cr.P.C., there is no public witness of incident. It is a counter blast case because applicant has filed a complaint case against the mother of complainant prior to the present incident. Prosecution story is false and fake and sheer concoction.

6. It is further submitted that from the allegation made in application under Section 156(3) Cr.P.C. and from the statement of victim and her witnesses, no case under Section 376-D and 506 IPC is made out but learned counsel for applicant showed some documents and statements in support of his contention. Despite repeated query by the Court whether these papers, which are being shown before this Court, have been brought to the notice of Magistrate before passing the summoning order or not? He remained silent and could not satisfy the query of the Court.

7. Learned AGA submitted that Trial Court, finding prima facie case and sufficient ground for proceedings against the applicant, summoned the accused-applicant for facing trial and all the submissions made by learned counsel for applicant relates to disputed question of fact which cannot be adjudged at this stage under Section 482 Cr.P.C. He further submitted that defence of learned counsel for applicant can be considered in Lower Court after the evidence is produced by both the parties.

8. I have considered the rival submissions made by the parties and perused the records.

9. Before I enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

10. It is settled that the power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice.

11. Time and again, Apex Court and various High Courts, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not pre-empt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. (See : State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335 and Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74.

12. In Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232, Court observed that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima-facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.

13. In M/s Eicher Tractor Ltd. And Others v. Harihar Singh and Another, 2009 (64) ACC 296, Court said in para 5 of the judgment, which reads as under :-

“5. Exercise of power under Section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

14. In Anil Arya v. State of U.P. and Others, Criminal Revision No. 1216 of 2005, decided on 09.09.2016, this Court held as under :-

“Whether evidence is correct or not or credible enough or not to sustain conviction and punishment is a matter which would be seen after revisionist put in appearance, lead evidence and thereafter Trial Court examine the entire evidence and record its finding thereon, but at the stage of summoning of revisionist on the basis of aforesaid statement in Trial under Section 319 Cr.P.C., the probable defence of accused summoned under Section 319 Cr.P.C. cannot be examined for the first time in a revisional jurisdiction by this Court.”

15. In Md. Allauddin Khan Vs. The State of Bihar and others, (2019) 6 SCC 107, Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :-

“12. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

13. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

14. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

16. In State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, Court has elaborately considered the scope and ambit of Section 482 Cr.P.C. Although in the above case Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. Court elaborately considered the scope of Section 482 Cr.P.C./ Article 226 of the Constitution of India in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of Court, Court enumerated certain Categories of cases by way of illustration where power under Section 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:

“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.

(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.

(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.

(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.

(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.

(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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or 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.

(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.”

17. From the perusal of allegations made in the complaint and statement of complainant under Section 200 Cr.P.C. and his witnesses Shakuntala Devi (her mother) and Ishwari Devi under Section 202 Cr.P.C., it cannot be said that no prima facie case against the accused-applicant is made out. At the time of passing summoning order, Magistrate is only required to see prima facie evidence and sufficient ground for proceeding.

18. The allegation levelled against him can be adjudicated only after the evidence and truthfulness of allegation cannot be considered in the proceeding under Section 482 Cr.P.C. before this Court and trial must go on.

19. Considering facts and circumstances of the case, allegation made in complaint, statement of complainant and witnesses under Sections 200 and 202 Cr.P.C. respectively and legal preposition discussed herein before, application under Section 482 Cr.P.C. fails and is accordingly dismissed.

Order Date :- 20.2.2020

Akram

 

 

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