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Allahabad High Court · body

2016 DIGILAW 3609 (ALL)

MASTER v. STATE OF U. P.

2016-11-02

KRISHNA MURARI, R.N.KAKKAR

body2016
JUDGMENT By the Court.—By means of this petition filed under Article 226 of the Constitution of India, the petitioner seeks issuance of a writ in the nature of certiorari for quashing the First Information Report dated 18.9.2016 registered as Case Crime No. 326 of 2016 under Section 363 read with Section 366 IPC, P.S. Khuldabad, District Allahabad. 2. FIR was lodged by complainant-respondent No. 3 on the allegation that the petitioner, who is the son of her elder uncle, enticed away her minor daughter on 15.9.2016 at about 12 p.m. Learned counsel for the petitioner contends that prosecution story is totally false, fabricated and concocted and as a matter of fact on account of some hot talks between complainant-respondent No. 3 and her minor daughter, the alleged victim, she left the house in a rage and went to a relative house at Dariyabad and after about four days, she returned back home, however, in the meantime, on account of some wrong feeding by some inimical relatives, the FIR was lodged implicating the petitioner. 3. It is an admitted position that investigation is still pending and the police has not filed any report under Section 173 (2) Cr.P.C. A counter-affidavit has been filed by respondent No. 3 alleging that due to wrong information and feeding by some inimical relatives of the petitioner, she lodged the FIR. It is admitted in the counter-affidavit that there was some hot talks between respondent No. 3 and her daughter, the alleged victim, on account of which she left the house without informing her and went to a relative house at Dariyabad. It is also admitted that on 19.9.2016, she returned back home alongwith relatives and then only respondent No. 3 realized that she lodged the FIR wrongly implicating the petitioner. 4. It may be relevant to quote paragraph 4 of the counter-affidavit, wherein these facts have been stated. “That with regard to the contents of paragraph No. 5 and 6, it is stated that due to wrong information provided by the some inimical relatives of the petitioner, the respondent No. 3 lodged the instant First Information Report. In fact on 15.9.2016 there was some hot talk between the alleged victim Guddan and respondent No. 3. Due to hot talk, the alleged victim left the house without informing the respondent No. 3 and went to a relative house at Daryabad. In fact on 15.9.2016 there was some hot talk between the alleged victim Guddan and respondent No. 3. Due to hot talk, the alleged victim left the house without informing the respondent No. 3 and went to a relative house at Daryabad. On 19.9.2016, she returned back home alongwith the relative and then the respondent No. 3 came to know that she on wrong information of some inimical relatives falsely implicated the petitioner in this case. In fact the petitioner has not enticed away the alleged victim nor has he any concerned with the alleged matter.” 5. It is undisputed that a bare perusal of the FIR goes to show commission of a cognizable offence. The question for consideration is that even though the allegation made in the FIR discloses commission of cognizable offence, but in the peculiar facts and circumstances of the case, where the complainant herself is coming forward to state that the FIR was lodged on account of some confusion and at the instigation of some inimical relatives, and the minor victim has returned back home, the investigation should be permitted to be continued or the FIR is liable to be quashed, as prayed by the petitioner. 6. It is well-settled that High Court can exercise its power of judicial review in criminal matters. In the case of State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604 , the Hon’ble Apex Court examined the extraordinary power conferred upon the High Court under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code of Criminal Procedure and held that powers can be exercised by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice. While laying down the guidelines for the High Court to exercise its jurisdiction under the aforesaid provisions, it was further held that these guidelines are not inflexible or lay down any rigid formulae to be followed by the Courts. It was observed that the exercise of said power would depend upon the facts and circumstances of each case with the sole purpose to prevent abuse of process of any Court or otherwise to secure the ends of justice. It may be relevant to extract paragraph 108 from the said report. “108. It was observed that the exercise of said power would depend upon the facts and circumstances of each case with the sole purpose to prevent abuse of process of any Court or otherwise to secure the ends of justice. It may be relevant to extract paragraph 108 from the said report. “108. 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 powers 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 F.I.R. 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 F.I.R. 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. 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 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 to private and personal grudge.” 7. Considering the ingredients of the offence invoked by the investigating agency and the stand taken by the complainant-first informant that the FIR was lodged by her under some confusion and being misguided by certain relatives inimical to the petitioner and also that the alleged victim has returned back alongwith relative in whose house she took shelter of her own ex facie/ prima facie, it stands established that offence has not been committed. 8. Another question, which arises for consideration, is that once the complainant herself made the statement that she lodged the FIR against the petitioner under some confusion and being misguided, whether the investigating agency would be able to collect any material which can be translated into legal evidence so as to establish commission of an offence. 9. Allowing the proceedings to continue in such facts and circumstances would only be an abuse of process of law. It is no doubt correct that after investigation, the police finding that there is no evidence may submit a report under Section 173 (2) Cr.P.C. and no charge-sheet will be filed against the petitioner, but investigation into the allegation of an alleged offence against anybody, in itself, is a very serious matter. Criminal law cannot be set into motion as a matter of course. The subsequent stand taken by the first informant/respondent No. 3 is sufficient to rule out, reject and discard the acquisitions levelled by her against the petitioner without even going into the necessity of recording any evidence. 10. Criminal law cannot be set into motion as a matter of course. The subsequent stand taken by the first informant/respondent No. 3 is sufficient to rule out, reject and discard the acquisitions levelled by her against the petitioner without even going into the necessity of recording any evidence. 10. Hon’ble Apex Court in the case of Pepsi Foods Limited v. Special Judicial Magistrate, 1997 Law Suit (SC) 1340, while considering the power of judicial interference under Article 226 and 227 of the Constitution of India and also inherent power under Section 482 Cr.P.C. has held as under. “No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.” 11. The above observation of the Hon’ble Apex Court stands attracted with equal force even in the case of an investigation of an alleged offence. No doubt, this power has to be exercised with due care and caution and in extremely deserving cases. 12. When the settled legal proposition on the issue of scope of quashing of the FIR is considered in context of the facts and circumstances emanating from the record, it becomes evident that even if the allegations in the impugned FIR are accepted, in view of the subsequent stand taken by the complainant-first informant respondent No. 3, offence, as alleged, cannot be said to have been committed at all. 13. In view of the settled legal position, to continue with the investigation under the abovenoted peculiar facts and circumstances, would result in nothing more but cause mental agony and unnecessarily facing criminal proceedings, as subsequent stand taken by the informant/complainant completely demolishes the ingredients of the alleged offence. Thus in the facts, no cognizable offence can be said to have been committed. 14. In view of the peculiar facts and circumstances of the case, we are of the considered opinion that continuance of proceedings shall amount to abuse of process of the Court and process of law. 15. The writ petition, accordingly, stands allowed. Thus in the facts, no cognizable offence can be said to have been committed. 14. In view of the peculiar facts and circumstances of the case, we are of the considered opinion that continuance of proceedings shall amount to abuse of process of the Court and process of law. 15. The writ petition, accordingly, stands allowed. First Information Report dated 18.9.2016 registered as Case Crime No. 0326 of 2016 under Section 363 read with Section 366 IPC, P.S. Khuldabad, District Allahabad is hereby quashed. 16. Let this order be communicated to the concerned Magistrate and Superintendent of Police, Allahabad.