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2019 DIGILAW 2127 (ALL)

Hasan Akhtar v. State Of U. P.

2019-09-13

RAJ BEER SINGH

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JUDGMENT : Raj Beer Singh, J. 1. Heard Sri Kamal Kumar Kesherwani, learned counsel for the applicant, learned A.G.A. for the State-respondent and perused material on record. 2. This application u/s 482 Cr.P.C. has been filed with the prayer to quash the impugned non-bailable warrant order dated 11.06.2019 as well as entire proceedings in Criminal Complaint Case No. 378 of 2019, (Talat Nabi vs. Hasan Mohammad and others), under Sections 323,504 and 506 of IPC, pending in the Court of IIIrd Additional Chief Judicial Magistrate, Amroha. 3. It has been argued by the learned counsel for the applicant that a false and baseless complaint was lodged by opposite party no.2 against the applicant and others. It was submitted that the dispute relates to the property and the complaint filed by opposite party no.2 is concocted. No prima facie case is made out against the applicant. The applicant and co-accused have appeared before the court below, however, on some fixed dates, the applicant, who is aged about 70 years, could not appear before the court and non-bailable warrants were issued against him. It was submitted that impugned order dated 11.06.2019, by which non-bailable warrants have been issued against the applicant, is illegal and arbitrary and thus, applicant must be granted some interim protection to appear before the trial court. 4. Per contra, learned A.G.A. has submitted that from the perusal of the material on record, it cannot be said that no cognizable offence is made out, hence the impugned proceedings are not liable to be quashed. At the outset it may be mentioned that the impugned complaint was filed in the year 2011 and the applicant is seeking its quashing in this year 2019. Thus, apparently the prayer of applicant for quashing the entire proceedings appears barred by limitation. Further, the applicant is not challenging the summoning order, rather he is challenging the order dated 11.06.2019 by which non-bailable warrants have been issued against the applicant. 5. Even on merits of the matter, no case for quashing of the impugned proceedings is made out. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. 5. Even on merits of the matter, no case for quashing of the impugned proceedings is made out. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in State of Haryana and others Vs. Ch. Bhajan Lal,1992 AIR SC 605 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. In the case of R. Kalyani v. Janak C. Mehta and Others, (2009) 1 SCC 516 , the Hon'ble Apex Court has held as under: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue." The said decision has also been followed by the Apex Court in the case of Kamlesh Kumari and Ors. v. State of U.P. and Ors., (2015) AIRSCW 3700. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the proceedings cannot be quashed. v. State of U.P. and Ors., (2015) AIRSCW 3700. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the proceedings cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Section 482 Cr.P.C. 6. Keeping in view the above stated settled position of law, in the instant case perusal of record shows that the impugned complaint was filed against the applicant and co-accused in the year 2011 and after summoning order, the applicant has appeared before the trial court. There are allegations against the applicant in the impugned complaint that opposite party no.2 was abused and given beatings by the applicant and co-accused persons over the issue of property and that his wrist watch and cash of Rs. 1200/- was snatched from him. It was also alleged that the applicant and co-accused has threatened to kill the complainant. It is apparent from the allegations that prima facie case is made out against the applicant. It is apparent from the complaint and material on record that a prima facie case is made out against the applicant. The case of the applicant does not fall in any of the category enumerated by the Apex Court through various judicial pronouncement for quashing of proceedings. It is well settled that 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 proceedings deserves quashing. In case of Rupan Deol Bajaj v. K.P.S. Gill, (1995) SCC(Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi, (1999) 3 SCC 259 and Medical Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors, (2000) SCC(Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. In State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. In the instant matter, the submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. 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 Section 482 Cr.P.C. In view of the material on record, it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and 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. In view of the aforesaid, no case for quashing of impugned proceedings is made out. 8. So far as the impugned order dated 11.06.2019 is concerned, it appears from the record that applicant was continuously absconding and was not appearing before the trial court and that non-bailable warrants were being issued against him continuously since last several years. No illegality or perversity or any other error could be pointed out in the impugned order. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of CrPC are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power can not be exercised to stifle a legitimate prosecution. Such powers can not be invoked to interfere with such type of routine or interim orders like issuance of non-bailable warrants by court below in course of trial unless some glaring illegality or perversity is shown. The inherent power can not be exercised to stifle a legitimate prosecution. Such powers can not be invoked to interfere with such type of routine or interim orders like issuance of non-bailable warrants by court below in course of trial unless some glaring illegality or perversity is shown. The inherent powers have to be exercised only to give effect to any order under CrPC, to prevent abuse of the process of any court and to secure the ends of justice to scuttle proceedings being in accordance with law. In the instant matter, no case for exercise of these powers is made out. 9. The application u/s 482 CrPC lacks merit and thus, it is dismissed.