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2021 DIGILAW 398 (ALL)

Radha Krishna Upadhyay v. State Of U. P.

2021-03-16

VIKAS KUNVAR SRIVASTAV

body2021
JUDGMENT : Vikas Kunvar Srivastav, J. 1. The case is called out. 2. Learned counsel for the applicant and learned A.G.A. for the State are present in the Court. 3. The present application under Section 482 Cr.P.C. is moved to quash the order dated 08.03.2021 passed by the Court of Additional Sessions Judge, Court No.1, Lucknow in case arising out of Sessions Trial No.775/2019, bearing Crime No. 141/2019, under Sections 395/397/412/384/417/420/216A of I.P.C. & Section 30 of Arms Act, 1989, Police Station Gosaiganj, District Lucknow, therein framing charge against the petitioner under Section 395/397/384/417/420 of I.P.C. and to quash the order dated 01.02.2021, wherein the Discharge Application, preferred by the Petitioner has been rejected. 4. Perused the F.I.R. No.141/2019, under Sections 395/397/412/384/417/420/216A of I.P.C. & Section 30 of Arms Act, 1989, on the complaint made by one Ankit Agrahari in Police Station Gosaiganj, District Lucknow on 09.03.2019 with regard to incident dated 09.03.2019, happened about 07:00 A.M. in morning, the said F.I.R. is made annexure no.3 to the application. 5. On perusal of F.I.R., it appears that on the date of incident, seven unknown persons entered into the apartment, over powered the watch man, knocked the door of the complainant's flat and when the door was opened by him, the assailants entered forcibly in the house. They were armed and beaten the applicant and his companions. One assailant was being called by others with the name of Madhukar Mishra and alongwith whom two assailants were in the robes of police men, to whom the Madhukar Mishra was calling with the name of Pawan Mishra and Ashish Tiwari. Four other unknown assailants were involved in beating and putting in their bags, the money looted from the hosue. Their name was not called intentionally by the other assailants. The informant reported that at the time of incident, the companions of the complainant, Sachin Katare, Ashiwani Pandey, Kuldeep Yadav, Jitendra Tomar, Abhisek Singh, Abhisek Verma and Shubham Gupta were present and got injuries due to having been beaten up by the assailants. The assailants fled away after committing the incident, to whom, he claimed that he can identify them when would be confronted face to face. The complainant have assessed that the assailants have looted a huge amount of money approximately one crore and 85 lacs. The assailants fled away after committing the incident, to whom, he claimed that he can identify them when would be confronted face to face. The complainant have assessed that the assailants have looted a huge amount of money approximately one crore and 85 lacs. The complainant informed that he is under a profession of trading of coal and maurang sand, running from the Omex Residency, Tulip Tower No.104 on rent, when the incident took place. 6. The police registered the first information report and started investigation, three men were identified by their name and face, however, annexure no.4, the recovery and arrest memo bears a fact found in investigation on the basis of CCTV footage. The police arrested Pradeep Kumar Singh, Anand Kumar Yadav and Pawan Kumar identified from the CCTV footage that alongwith them, the two unknown persons are known as Radha Krishna Upadhyay and Yash Raj Tiwari, who were beating and collecting the money, kept under the box of the bed and putting into their bags in the course of incident. 6. This is pertinent here that the present application under Section 482 Cr.P.C. with the aforesaid relief is moved by that Radha Krishna Upadhya, who was identified by the other co-accused and the complainant of the case on the basis of CCTV footage, involved in commission of the crime under the incident reported on 09.03.2019. The police has submitted the charge sheet on the basis of evidences collected during investigation, pursuant to the F.I.R. dated 09.03.2019. 7. Apparently, without going deeply into the evidence, there is no doubt that the present accused-applicant was involved in the offence as reported by the opposite party no.2-Ankit Agrahari, the complainant of the F.I.R. No.141/2019 dated 09.03.2019. It would be pertinent that the quashing of the F.I.R., the charge sheet or cognizance by the Court concerned of the offence on the basis of charge sheet, further proceeding consequent thereupon may be quashed only on some exceptional circumstances as envisaged decision of Hon'ble the Supreme Court otherwise a criminal proceeding which prima facie genuine cannot be stifled by exercising inherent power under Section 482 Cr.P.C. 8. Section 482 Cr.P.C. is being quoted hereunder :- "482. Saving of inherent powers of High Court. Section 482 Cr.P.C. is being quoted hereunder :- "482. Saving of inherent powers of High Court. 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." 9. The present application is moved under Section 482 Cr.P.C. and there is no fact or circumstance pleaded in the application which manifest the abuse of power by the trial court while passing the impugned order dated 01.02.2021 and 08.03.2021. The order dated 01.02.2021 passed by the Sessions Court is made annexure to the present application which is a reasoned order. Learned trial court (the court of Sessions) while considering the application to discharge moved by the present applicant, perused the entire facts and circumstances coming out from the first information report, prima facie the evidences collected by the Investigating Officer in submitting the charge sheet and concluded that charge can be framed even on the basis of strong suspicion founded upon materials before the court which leads the court a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. It relied on the various decisions of Hon'ble the Supreme Court on reaching this conclusion. As such, there is no illegality in the order of the trial court in rejection of the application to discharge the accused-applicant and to frame the charge. 10. The Hon'ble Apex Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and others reported in [ (2007) 12 SCC 1 ], in Paragraph nos. 26, 27 and 32 held as under:- "26. In R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 , this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:- (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their fact value and accepted in their entirety do not constitute the offence alleged. (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge." 27. The 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. The 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 should normally refrain from giving a prima facie decision in a case where all the 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 such magnitude that they 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 proceedings at any stage." 32. In State of Haryana & Others v. Bhajan Lal & Others, [1992 Supp(1) SCC 335] this court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. 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 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this court made it clear that 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 to myriad kinds of cases wherein such power should be exercised: "102. (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. (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 FIR 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 FIR 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) 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." 11. On the basis of aforesaid discussions, the application under Section 482 Cr.P.C. lacks merit and therefore liable to be rejected. 12. Accordingly, the application under Section 482 Cr.P.C. is dismissed.