High Court
Case Details
Neutral Citation No. - 2023:AHC:224553 Court No. - 93 Case :- APPLICATION U/S 482 No. - 43456 of 2023 Applicant :- Gaurav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Kumar Tyagi,Mohit Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Manoj Bajaj,J. 1. Applicant has filed this application under Section 482 Code of Criminal Procedure for quashing the charge sheet dated 12.06.2022 filed under Section 173(2) CrPC, in Case Crime No. 196 of 2021 registered under Sections 420, 406 IPC, Police Station Madihan, District Mirzapur as well as the cognizance order dated 16.09.2022 passed by the Incharge Civil Judge (Junior Division), F.T.C., Mirzapur and the proceedings arising therefrom. 2. Learned counsel for the applicant submits that the applicant-accused and complainant being neighbours were known to each other and as per allegations, the complainant parted away with a sum of Rs 11,90,000/- and paid to the accused for purchase of land on his assurance that the deal would fetch higher returns. He submits that the case of complainant relates to simpliciter breach of contract, and being civil in nature would not require prosecution of the applicant- accused. He prays that the criminal proceedings be quashed in the interest of justice.
Legal Reasoning
otherwise to secure the ends of justice. It has been held by this Court in R. P. Kapur v. State of Punjab [AIR 1960 SC 866] that Section 561-A of the Criminal Procedure Code, 1898 (which corresponds to Section 482 of the Criminal Procedure Code, 1973) saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice and such inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code and therefore where the Magistrate has not applied his mind under Section 190 of the Cr.P.C. to the merits of the reports and passed order, the High Court ought not to consider a request for quashing the proceedings. In the case of R. P. Kapur (supra) on 10.12.1958, M.L. Sethi lodged a First Information Report against R.P. Kapur and alleged that he and his mother-in-law had committed offences under Sections 420-109, 114 and 120B of the Indian Penal Code. R.P. Kapur moved the Punjab High Court under Section 561-A of the Code of Criminal Procedure for quashing the proceedings initiated by the First Information Report. When the petition of R.P. Kapur was pending in the High Court, the police report was submitted under Section 173, Cr.P.C. and the High Court held that no case had been made out for quashing the proceedings under Section 561-A of the Criminal Procedure Code, 1898 and dismissed the petition. R. P. Kapur carried an appeal by way of Special Leave to this Court and this Court dismissed the appeal for inter alia the following reasons: " In the present case the magistrate before whom the police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal 2 proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage..." As we have found in the present case that learned Magistrate had not applied his mind to the merits of the reports filed under Section 173, Cr.P.C., we are of the considered opinion that the exercise of power by the High Court under Section 482, Cr.P.C., was at an interlocutory stage and was not warranted in the facts of this case." 5. In view of the above background of the case as well as law laid down by Hon'ble Supreme Court, this Court without meaning any expression of opinion on the merits of the case, does not find it to be a fit case for exercise of inherent powers under Section 482 CrPC. However, it shall be open for the applicants to raise all the grounds pleaded in this application, before the Magistrate at an appropriate stage. 6. With the above observations, this application u/s482 CrPC is dismissed. Order Date :- 28.11.2023 Brijesh Digitally signed by :- BRIJESH KUMAR High Court of Judicature at Allahabad 3
Arguments
3. During the course of hearing, it is not disputed by the learned counsel that as per complainant some of the amount was transferred from the complainant's account to the account of the applicant, but according to learned counsel, out of it, some of the amount already stands returned to the complainant. 4. Upon hearing the learned counsel and considering the above background, this Court finds that the entire case of the prosecution is based on documentary material including the transaction of transfer of amount from the complainant's account to the account of the accused. Since, the final report is yet to be examined by the Magistrate, therefore, at this stage, it would not be appropriate for this Court to exercise inherent powers under Section 482 CrPC. Here, it will be useful to refer the decision of Hon'ble Supreme Court delivered in Dharmatma Singh vs. Harminder Singh & Ors. report in Criminal Appeal No.1126 of 2011 (3) RCR Criminal 38 wherein the Hon'ble Supreme Court has observed that if a party can avail alternative remedy according to the provisions of Code of Criminal Procedure, in that eventuality the inherent powers under Section 482 CrPC cannot be exercised. The relevant observations read as under : "13. Section 482 of the Cr.P.C. saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or