Saurabh Dwivedi v. Anuj Tripathi and another)
Case Details
Neutral Citation No. - 2023:AHC:142863 Court No. - 90 Case :- APPLICATION U/S 482 No. - 16669 of 2023 Applicant :- Anuj Tripathi And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arun Kumar Tiwari Counsel for Opposite Party :- G.A.,Sudhakar Shukla Hon'ble Dinesh Pathak,J.
Legal Reasoning
1. Supplementary affidavit filed on behalf of the learned counsel for the applicants is taken on record. 2. Heard learned counsel for the applicants, learned counsel for opposite party no. 2 as well as learned A.G.A. and perused the record on board. 3. The present applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the entire proceeding of the Complaint Case No. 13802 of 2020 (Saurabh Dwivedi v. Anuj Tripathi and another) (CNR NO. UPKN04-021755-2020] under Sections 452, 323, 504, 506, 352, 386 of I.P.C. Police Station- Kalyanpur, District- Kanpur Nagar as well as the summoning order dated 13.09.2022 passed by learned Metropolitan Magistrate-VII, Kanpur Nagar under Sections 452, 323, 504, 506, 352, 386 of I.P.C., Police Station- Kalyanpur, District- Kanpur Nagar, pending before the Court of learned Metropolitan Magistrate-VII, Kanpur Nagar. 4. Opposite party no. 2 has filed a complaint case leveling allegation of extortion by showing the complainant fear of death and hurt, physical exploitation, using abusive language and thrashed to the complainant and his family members while barging to his house, putting revolver into mouth of the complainant and threat of life. The trial court, vide order dated 13.09.2022, after considering the averment made in the application and the statements made under Section 200 and 202 Cr.P.C., has issued summoning order against the present applicants under Sections 452, 323, 504, 506, 352 and 386 I.P.C. 5. As per complaint case, the complainant has taken debt amounting Rs. 10,00,000/- (Ten Lakh) from the applicant no. 1 (Anuj Tripathi), however, he has returned the debt money. Intending to get more money, applicant no. 1 along with his accomplish (applicant no. 2 &3) has throughout threatened the complainant to return more money and on 12.08.2020 at about 9.00 p.m. they have barged into house of the complainant and pounded him. On the intervention of the wife and father, they have also been beaten up by the applicants. 6. It is submitted by the counsel for the applicants that present applicants have falsely been implicated in the criminal case. It is further submitted that opposite party no. 2 has portrayed false and concocted story just to exert pressure upon the present applicants so that they may come to the terms of the complainant in returning the money and not to realize the debt amount. It is further submitted that the present applicants have already filed a case under the Negotiable Instrument Act against the opposite party no. 2, therefore, instant complaint has been filed in counterblast just to create pressure upon the applicants. It is further submitted that opposite party no. 2 is the habitual offender, who used to take debt from the public and subsequently drag them in criminal cases. It is further submitted that no case is made out against the present applicants under the sections as mentioned in the summoning order. 7. Per contra, learned A.G.A. as well as learned counsel for the opposite party no. 2 have vehemently opposed the submissions advanced by the learned counsel for the applicants and contended that serious allegations have been made by the complainant in the complaint which has rightly been taken into account by the learned trial court and, according, passed summoning order under different sections of the I.P.C., after considering the material available on record i.e. statements under Section 200 and 202 Cr.P.C. and some documentary evidence which were adduced along with the complaint. It is further contended that on the face of record, prima facie, complicity of the present applicants in commission of the crime, as mentioned in the first information report, cannot be ruled out. It is further contended that at this juncture disputed questions of fact cannot be examined and no legal ground is made out to interfere in the summoning order dated 13.09.2022. 8. Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that learned trial court has passed the summoning order after recording its satisfaction on the basis of the averments made in the complaint, which was corroborated by the statements under Section 200 and 202 Cr.P.C. coupled with some documentary evidences adduced on behalf of the complainant along with the complaint. Therefore, complicity of the present applicants in commission of the crime, prima facie, cannot be ruled out. Record reveals that learned counsel for the applicants has raised disputed question of fact qua involvement of present applicants in the incident in question. 9. 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 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. 10. 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/charge- sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception. 11. 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 :- "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." 12. 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 Venkateswarlu and Another v. State of Andhra Pradesh and Another. 13. 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: "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. 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. 14. The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:- "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 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. (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." 15. It has been further elucidated recently by Hon'ble Apex 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. 16. 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. 17. Therefore, 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 complaint 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. 18. Having considered the rival submissions advance by learned counsel for the applicant, learned counsel for opposite party no. 2, learned A.G.A. and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused. 19. Before parting, learned counsel for the applicant submits that in all 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. In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences. 20. 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 within two weeks, the same shall be considered and decided in accordance with law, considering the judgment of Hon'ble Supreme Court, expeditiously as early as possible.
Decision
21. As such, the application stands disposed of. Order Date :- 18.7.2023 Pkb/ Digitally signed by :- PRAMOD KUMAR BAJPAI High Court of Judicature at Allahabad