Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1190

IN THE HIGH COURT OF ALLAHABAD
VIKAS BUDHWAR, J.
Rajesh and Others - Applicants
Versus
State of U.P. and Another - Opposite Parties
Application U/s 482 No. 21881 of 2021
Decided On : 25-11-2021

Advocates Appeared:
For the Applicant : Ajay Kumar, Chandrama Singh.
For the Opposite Party : G.A.

Point of law : Powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. 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.

Headnote:
Criminal Procedural Code, 1973 - Section 482, 156(1), 155(2), 438, 173 – Saving of inhernt power of High court – Police officer’s power to investigate cognizable cases - Quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest- Whether there was any jurisdictional error committed by court below while issuing summoning order, counsel for applicant could not point out any jurisdictional error - Whether offence alleged is disclosed or not - Whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.
Findings of the court :
Court finds that admittedly FIR was lodged by opposite party against applicant being FIR pursuant thereto proceedings as contemplated under section Cr.P.C. 1973 was followed and charge sheet was submitted by Investigating Officer and cognizance whereof was taken - On a pointed repeated query being made to counsel for applicant as to whether there was any jurisdictional error committed by court below while issuing summoning order, counsel for applicant could not point out any jurisdictional error - However, counsel for applicant has sought to argue on factual aspects of matter so as to contend that allegations which are false and incorrect and further an argument was also sought to be made to such an extent that no cognizable offence is being made out from bare perusal of FIR - Court under inherent power under section 482 Cr.P.C. cannot embark any roving inquiry at pre-trial stage - Court has repeatedly cautioned High Court while exercising power under section 482 Cr.P.C. being inherent powers that it should be exercised sparingly and in circumspection in rarest of rare case as inherent powers cannot be exercised to scuttle investigation at pre-trial stage - Court while going through FIR as well as charge sheet and pleadings set forth by counsel for applicant, finds inability to accept argument so sought to be raised by counsel for applicant.
Result : Application under section 482 Cr.P.C dismissed

JUDGMENT :

1. Heard Sri Ajay Kumar, learned counsel for the applicants and Sri K.K. Rajbhar, learned A.G.A. for the State.

2. The applicant herein has filed the present application u/s 482 Cr.P.C. for quashing of the entire criminal proceeding against the applicants arising out of Criminal Case No. 8326 of 2020, State Vs. Ravikant & Others, relating to case crime no. 1363 of 2018, u/s 147, 148, 452, 427, 323, 354-Kha & 506 IPC, P.S. Kotwali Nagar, District Etah, pending in the court of learned Chief Judicial Magistrate Etah as well as quash the charge sheet no. 345 of 2019 dated 10.06.2019 submitted by the Investigating Officer.

3. Briefly stated facts shorn off unnecessary details are that the opposite party no. 2 lodged the FIR no. 1363 of 2018 on 22.11.2018 before the Police Station Kotwali Nagar, District Etah u/s 147, 148, 452, 427, 323, 307, 354-Kha & 506 IPC alleging therein that the opposite party no. 2 is the legally wedded wife of the Amar Singh, R/o Uddaitpur, P.S. Kotwali Nagar, District Etah and she has her own house at Uddaitpur and the opposite party no. 2 was tying her cattle in that house but one Rajesh who happens to be the owner of the small plot just behind the plot of opposite party no. 2, attempted to illegally occupy the property of the opposite party no. 2. According to the opposite party no. 2, she had made a complaint before the police authority regarding the illegal and forcible attempts for taking possession of the land of the opposite party no. 2 in question. However, on 20.11.2018 at about 3 O’clock when the opposite party no. 2 was preparing the feed of the cattle then Rajesh along with Ravikant S/o. Charan Singh, Charan Singh S/o. unknown, Shushila W/o. Rajesh, Ramnath S/o. unknown, Pappu S/o. Ramnath, Ramsewak S/o. Ajvir Singh gathered on a particular point and after discussion, came before the opposite party no. 2 along with the wooden stick and pistol. It is also alleged in the FIR that Pappu was in possession of a pistol and the other accomplishes were having wooden sticks and they wanted to encroach upon the property of the opposite party no. 2 and when the opposite party no. 2 resisted the aforesaid, they started beating her with wooden stick and also humiliated her and further it has been alleged that the they had torn her clothes on account whereof she became semi naked and she started screaming then, the neighbours came in rescue of the opposite party no. 2. At the relevant point of time, Pappu started firing in the air and the aforesaid accused started beating with intention to kill the sons of opposite party no. 2 being Shivam and Veerpal and they also fired upon them and when the aforesaid accused were being resisted by the persons who are standing over there, they ran away.

4. It appears that the Investigating Officer thereafter submitted the charge sheet dated 10.06.2019 against the applicants u/s 147, 148, 452, 427, 323, 354-Kha & 506 IPC and the cognizance thereof was taken on 11.09.2020.

5. Aggrieved by the same, the applicants are now before this Court and seeking to challenge the charge sheet dated 10.06.2019.

6. In order to appreciate the controversy between the parties it is apt to refer to section 482 Cr.P.C. which reads as under:-

“Nothing in this Code shall be deemed to limit or affect the inherent powers 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.”

7. A plain reading u/s 482 Cr.P.C. itself shows that the same starts with notwithstanding clause and the same confers inherent power upon the High Court to make such order as may be necessary to give effect to any order under the code or to prevent abuse of process of Court or otherwise to ensure the ends of justice.

8. The Hon’ble Apex Court in the case of R.P. Kapoor Vs. State of Punjab reported in AIR 1960 SC 866 has the occasion to consider the parameter provisions contained under se

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2021 Supreme(All) 1190

IN THE HIGH COURT OF ALLAHABADVIKAS BUDHWAR, J.Rajesh and Others - ApplicantsVersusState of U.P. and Another - Opposite PartiesApplication U/s 482 No. 21881 of 2021Decided On : 25-11-2021

Cases Referred (7)

IN THE HIGH COURT OF ALLAHABAD
VIKAS BUDHWAR, J.
Rajesh and Others - Applicants
Versus
State of U.P. and Another - Opposite Parties
Application U/s 482 No. 21881 of 2021
Decided On : 25-11-2021