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2003 DIGILAW 2136 (ALL)

Anoop Kumar v. State of U. P.

2003-09-15

K.N.SINHA

body2003
K. N. SINHA, J. ( 1 ) BY means of the present application under Section 482 Cr. P. C. the petitioner has prayed for quashing of the charge sheet No. 28 of 1998 dated 1/4/1998 (case Crime No. 544 of 1997) under Sections 143, 384 and 120b Indian Penal Code of Police Station Cantt. District Allahabad and also the entire proceedings of Criminal Case No. 246 of 2002 State v. Bhola Sonkar and others, pending before the Additional Chief Judicial Magistrate (VI), Allahabad. ( 2 ) THE brief facts giving rise to this application, are that applicant Anoop Kumar alongwith five others have been charge-sheeted as above and the case is proceeding in the court of Additional Chief Judicial Magistrate (VI) Allahabad on the basis of F. I. R. (Annexure 1 ). According to the F. I. R. the petitioner and his associates demanded Goonda Tax from the shopkeepers, who informed the complainant S. I. Sri Diwakar Pandey. The informant contacted shopkeepers and contractors but they were afraid of petitioner and his associates and told that petitioner and his associates demanded goonda tax and collected the same. On the basis of this F. I. R. , the case was investigated and petitioner and others were charge-sheeted. The charge sheet was filed in the Court. ( 3 ) S. I. Sri Dhananjay Singh filed a counter affidavit denying the allegations set forth in the petition. It has been mentioned that S. I. Diwakar Pandey alongwith other police personnel made an enquiry from the shopkeepers and contractors, who told them that they were bound to pay goonda tax on account of terror of the petitioner and others. On the basis of such information, the case was registered against the petitioner and his associates. During the investigation statement of S. I. Sri Diwakar Pandey was recorded but no shopkeeper was ready to give evidence on account of terror of the petitioner and his associates. Paragraph 7 of the counter affidavit further shows that the deponent contacted the effected shopkeepers but they did not dare to give any evidence in respect of the same. The deponent, in counter affidavit, further deposed that the case was registered only on the basis of oral complaint of victims of said goonda tax. ( 4 ) A rejoinder affidavit was filed denying the allegations set forth in counter affidavit. The deponent, in counter affidavit, further deposed that the case was registered only on the basis of oral complaint of victims of said goonda tax. ( 4 ) A rejoinder affidavit was filed denying the allegations set forth in counter affidavit. ( 5 ) I have heard the learned counsel for the petitioner and the learned A. G. A. and perused the copy of the F. I. R. (Annexure-I), Charge-sheet and the statements annexed. ( 6 ) LEARNED counsel for the petitioner has submitted that the F. I. R. was lodged on the basis of a complaint by certain contractors and shopkeepers about the realisation of goonda tax by the petitioner and his associates. According to the F. I. R (Annexure 1), the contractors and big shopkeepers brought the fact to the notice of informant S. I. Diwakar Pandey but the F. I. R. itself contains this recital that none is ready to give evidence or to lodge any complaint. The learned counsel for the petitioner has also drawn my attention towards the list of the witnesses given on the back of the charge sheet. All of them are police personnel and none is from the alleged shopkeepers or contractors. The copy of the statements recorded under section 161 Cr. P. C. (Annexures 5 to 10) are on record. The Investigating Officer recorded the statement of few constables and S. I. Diwakar Pandey about the complaint made by the shopkeepers. None of the shopkeepers or contractors have been examined by Investigation Officer nor anyone has come forward, to say even a single word against the petitioner. The counter affidavit filed by S. 1. Dhananjay Singh categorically shows that no shopkeeper is ready to give any evidence on account of terror of the petitioner and his associates. The total evidence is that of constables and informant S. I. Diwakar Pandey who is sub inspector at the concerned police station. If there was any such incident of extortion and forceful realisation of goonda tax, any shopkeeper or the victim should have come forward to state. The evidence collected is only the hearsay and that of police constables of the concerned police station. ( 7 ) THE scope and ambit of power under section 482 Cr. P. C. has been examined by the Apex Court and this Court in number of Judgments from time to time. The evidence collected is only the hearsay and that of police constables of the concerned police station. ( 7 ) THE scope and ambit of power under section 482 Cr. P. C. has been examined by the Apex Court and this Court in number of Judgments from time to time. In view of the latest pronouncement of the Apex Court reported in Union of India v. Prakash P. Hinduja and another, the power of Section 482, Cr. P. C. can be exercised in the following situation: The grounds on which power under S. 482, Cr. P. C. can be exercised to quash the criminal proceedings basically are (1) Where the allegations made in the FIR or complaint, even if they are taken at there face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) 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. (3) Where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Acts to the institution and continuance of the proceedings. But this power has to be exercise a in a rare case and with great circumspection. ( 8 ) THE second ground where power under Section 482 Cr. P. C. can be exercised, is that if the uncontroverted allegations made in the F. I. R. 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, the proceeding can be quashed. ( 9 ) IN the above backdrop when there is absolutely no evidence of any victim about the offence committed by the petitioner the charge sheet does not stand and no useful purpose would be served by petitioners undergoing the agony of trial for a long period. There is not even prima facie evidence to constitute the offence against the petitioner. ( 10 ) CONSEQUENTLY the application under Section 482 Cr. There is not even prima facie evidence to constitute the offence against the petitioner. ( 10 ) CONSEQUENTLY the application under Section 482 Cr. P. C. is allowed and the proceeding of Criminal Case No. 246/2002 State v. Bhola Sonkar and other under Sections 143, 384 and 120b I. P. C. pending in the court of Additional Chief Judicial Magistrate (VI) Allahabad under charge sheet No. 28 of 1998 dated 1/4/1998 is hereby quashed as against the petitioner Anoop Kumar. Petition allowed. . .