High Court
Case Details
Neutral Citation No. - 2023:AHC:125058-DB Court No. - 65 Case :- CRIMINAL MISC. WRIT PETITION No. - 7377 of 2023 Petitioner :- Anshu Gupta Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Srivastava Iii Counsel for Respondent :- G.A.,Ravi Anand Agarwal,Shreya Gupta Hon'ble Raj Beer Singh,J. Hon'ble Surendra Singh-I,J. 1. This writ petition has been filed praying for the following reliefs: "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned First Information Report dated 23.02.2023 registered as Case Crime No. 118 of 2023, under Sections 420, 467, 468, 471, 406 IPC, P.S. Izzat Nagar, District- Bareilly. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest or harass the petitioner in pursuance of impugned First Information Report." 2. Heard learned for the petitioner/s, learned counsel for the informant/respondent No.4 and learned AGA for State. 3. The informant/respondent No.4 has lodged first information report alleging that he is a member of 'Luxmi Sahkari Samiti', Bareilly and he was allotted a plot by the society against consideration of Rs. 20 lakhs and part payment of Rs. 4,35,000/- was made by the informant to the society. The said Housing Society did not complete the mandatory development works and thus, the informant has filed a case before the Society Commissioner, Housing, Lucknow, whereby an order was passed in favour of informant and consequently plot no.1 was allotted to the informant in the year 2013. The informant has performed all formalities from Bareilly Development Authority but no sale-deed was executed in favour of the informant. In the year 2021 Secretary of society, namely, Satish Agrawal has passed away. It was alleged that the Chairman of society, namely, Mushtak and other officer bearers of society have sold one part of the plot allotted to the informant, to the petitioner/accused and another part to co-accused Ishan Bakshi @ Ishan Singh Bakshi, by preparing forged documents and the said purchasers were fully aware of the fact that the said plot has already been allotted to the informant.
Legal Reasoning
any prima facie offence against the petitioner. The petitioner is a bona-fide purchaser of the plot and he has no knowledge that the said plot was already allotted in favour of informant. In fact, the informant has failed to make the balance amount of consideration to the Society. The said Housing Society has already preferred an appeal against the order of Arbitrator/Housing Commissioner, passed in favour of informant. The allottee has no right over the land allotted to him and mere allotment does not confer any title of the property. Further, in view of provisions of Section 305 Cr.P.C., the prosecution in such matters cannot proceed unless such society is not made party but in this matter, the said housing society has not been made accused in the FIR. Referring to allegations made in FIR and other material on record, it was submitted that no prima facie case is disclose against the petitioner. 5. Learned Senior Counsel has made reference to the following case laws: i. GHCL Vs. India Infoline Ltd 2013 4 SCC 505; ii. S.K. Alag vs. State of U.P. and others (2008)5 SCC 662; iii. Sharad Kumar Sanghi vs. Sangita Rane (2015)12 SCC 781 iv. Sushil Seth and another vs. State of Arunachal Pradesh and others (2020)3 SCC 240; v. Room Mani Pandey vs. State of U.P. and another (Criminal Misc. Application under Section 482 Cr.P.C. 3336 of 2014) vi. Dayle De'Souza vs. Government of India Through Deputy Chief Labour Commissioner (C) and Another SLP (CRL) 3913 of 2020; vii. Aneeta Hada vs. Godfather Travels and Tours (P) LTD. (2012) 5 SCC 661 6. Learned AGA and learned counsel for the informant have opposed the prayer for quashing of the FIR, and submitted that the first information report discloses commission of cognizable offence against the petitioner. There are allegations of cheating and forgery against all the accused persons and thus, matter requires investigation. The investigation of the case is at initial stage. The informant has clearly alleged that the petitioner was aware that the plot in question was already allotted to the informant and an order was also passed in favour of informant by the Arbitrator/Housing Commissioner. It was submitted that in fact the alleged sale-deed executed in favour of petitioner is a sham document. The sale-deed was executed at quite low consideration amount, which further goes to indicate the mala-fideness on the part of accused persons including the petitioner. Referring to counter affidavit and documents annexed in counter affidavit, it was submitted that there are serious allegations against the petitioner and co-accused persons and matter requires investigation. 7. I have considered the submissions of learned counsel for the parties and also gone through the case laws, referred by the learned counsel for the petitioner. 8. So far the legal position on the issue of quashing of first information report is concerned, it is well settled that if a prima facie cognizable offence is made out, as a general rule the first information report cannot be quashed. Police has the statutory right and duty to investigate such matters and the Courts would not thwart investigation into the cognizable offences. Quashing of a complaint/FIR is an exception rather than an ordinary rule. In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, the Hon'ble Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. It was held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. The Court has identified following guidelines, wherein, FIR / complaint can be quashed: "102.(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 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. (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." 9. Recently, in land mark judgment of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, on the issue of quashing of FIR / proceedings, the Hon'ble Apex Court has considered a number of its earlier judgments and concluded as under: ''23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/charge-sheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: 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; ii) Courts would not thwart any investigation into the cognizable offences; 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; 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). 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; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; 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; ix) The functions of the judiciary and the police are complementary, not overlapping; 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; 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; 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; 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; 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; xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482Cr.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; 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 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/charge sheet 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. 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. 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.'' 10. Thus, there is no controversy about the legal proposition that in case a prima facie cognizable offence is disclosed, the first information report cannot be quashed. Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure and the Courts would not thwart any investigation into the cognizable offences. Quashing of a complaint/FIR is an exception rather than an ordinary rule. In fact the power of quashing of FIR has to be exercised sparingly with circumspection, and in rarest of rare cases The questions of fact cannot be examined by the Court in proceedings under Article 226 of the Constitution of India. It is also no more res integra that 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. 11. Keeping the settled position of law in view, in the instant case, it is apparent from record that in the first information report there are allegations of cheating and forgery and it was submitted that the petitioner has purchased the plot in question on the basis of forged documents and by knowing well that said plot was already allotted in favour of informant. It was alleged that the sale-deed is nothing but sham document and it was executed in order to usurp the plot allotted to the informant. So far the provisions of Section 6 Societies Registration Act and Section 305 Cr.P.C. are concerned, it may be observed that matter is at the stage of investigation and said provisions would not bar the investigation. The submissions raised by learned counsel for the petitioners call for determination on questions of fact which may be adequately examined during investigation. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under article 226 of the Constitution of India. Considering the allegations made in the first information report and material on record, it can not be said that no prima facie case is disclosed. As referred above, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. The investigation of the matter is at the initial stage. As observed earlier, investigation is statutory duty of police and the Court would not thwart any investigation into the cognizable offences. The case of the petitioners does not fall with in any of the category enumerated by the Apex Court through various judicial pronouncement for quashing of first information report. At this stage, this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the first information report deserves quashing. 12. In view of the aforesaid, we are of considered view that no case for quashing of the impugned first information report or for any interference in the investigation, is made out.
Arguments
4. It has been argued by the learned Senior Advocate appearing for petitioner that impugned first information report does not disclose
Decision
13. The Writ Petition is dismissed. Order Date :- 7.6.2023 A. Tripathi Digitally signed by :- AKHILESH TRIPATHI High Court of Judicature at Allahabad