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2023 DIGILAW 279 (UTT)

Usha Rani v. State of Uttarakhand

2023-04-28

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. The present applicants are facing trial of the Criminal Case No.5148 of 2022, “State Vs. Usha and others”, wherein, they have been summoned by the court of Additional Chief Judicial Magistrate, Kashipur, District Udham Singh Nagar, to be tried for the offences under sections 186, 332, 353, 427, 504 and 506 of IPC, which stood registered against them, as a consequence of the culmination of the investigation into the set of allegations leveled in the FIR No.364 of 2022, dated 25.06.2022. 2. The argument of the learned counsel for the applicants is that the entire story as narrated in the FIR cannot be believed with, because it was nothing but a tussle of powers between the applicant, who is the wife of an army man and amongst the police force, who had gone to the applicants’ house to serve the notice under section 41 (ka), in pursuance to the earlier FIR No.245 of 2022, which was registered under sections 323, 452, 504, 506 of IPC and section 3 (1) (r) of the SC and ST Act. 3. Learned counsel for the applicants has submitted, that the entire set of allegation, which has been leveled against the present applicants in the FIR, is not sustainable because no such incident had actually chanced. Rather, the atrocities were exercised by the police personnel, and none of the allegations pertaining to the indecent act on the part of the applicants could be said to have been made out from the apparent reading of the FIR. In fact, the attempt, which has been made by the applicants, to substantiate that none of the offences as complained of in the FIR, is not made out against the applicants. He has attempted to draw the attention of this Court to the various photographs, which were placed on record, to show, that rather the atrocities were exercised against her by the police personnel, and not by the present applicants. 4. He has attempted to draw the attention of this Court to the various photographs, which were placed on record, to show, that rather the atrocities were exercised against her by the police personnel, and not by the present applicants. 4. At this stage, it could not be safe to venture into making any observation, as to who could be attributed with the allegation of commission of the offence, which has been complained of in the FIR, and particularly, in the context of the chargesheet, which has been submitted by the Investigating Officer, after examining as many as 12 witnesses, including the documents, which have been placed before it and the CD, observing thereof that prima facie the offence as leveled against the present applicants in pursuance to the FIR No.364, dated 25.06.2022, is made out against the present applicants, based on which, the cognizance has been taken. 5. In fact, the learned counsel for the applicants has submitted that institution of the present FIR at the behest of the police officials is a malicious proceedings itself because none of the documents which have been filed in support of his case, in C482 application, could be said to make out an offence against the present applicants. Rather, to the contrary, it has been argued that the applicants were manhandled by the police personnel, who have gone to serve the notice under section 41 of the CrPC. 6. The entire argument of the learned counsel for the applicants, in fact, is an attempt made by the applicants to invoke the jurisdiction under section 482 of CrPC, to venture into the evidence and to appreciate the same in order to establish and appreciate the argument extended by the applicants, and the set of allegations leveled in the FIR. In fact, this Court is of the view, that the C482 application is limited in the exercise of its jurisdiction, because it has been the consistent view expressed by the Hon’ble Apex Court in the judgment as reported in AIR 2022 SC 41 , “State of Odisha Vs. In fact, this Court is of the view, that the C482 application is limited in the exercise of its jurisdiction, because it has been the consistent view expressed by the Hon’ble Apex Court in the judgment as reported in AIR 2022 SC 41 , “State of Odisha Vs. Pratima Mohanty Etc.”, wherein, in paragraph no.6 of the judgment, the Hon’ble Apex Court has observed that in the exercise of jurisdiction by the High Court under section 482 of CrPC, for quashing of the criminal proceedings, the High Court is not supposed to venture to appreciate and enter into the merits of the allegations and to conduct a mini trial by weighing the evidence in detail, which is not the scope and permissible by the High Court in the exercise of the power under section 482 jurisdiction. The relevant paragraph no.6, is extracted hereunder:- “6. At the outset, it is required to be noted that by the impugned judgment and order the High Court in exercise of its powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Section 13(2) read with Section 13(1)(d) of the Act and Section 420 read with Section 120B IPC. From the impugned judgment and order passed by the High Court, it appears that the High Court has entered into the merits of the allegations and has conducted the minitrial by weighing the evidence in detail which, as such, as observed and held by this Court in a catena of decisions is wholly impermissible. As held by this Court in the case of State of Haryana And Ors. vs Ch. Bhajan Lal And Ors., AIR 1992 SC 604 , the powers under Section 482 Cr.P.C. could be exercised either to prevent an abuse of process of any court and/or otherwise to secure the ends of justice. In the said decision this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule are carved out in para 102 in Bhajan Lal (supra) which reads as under: "102. In the said decision this Court had carved out the exceptions to the general rule that normally in exercise of powers under Section 482 Cr.P.C. the criminal proceedings/FIR should not be quashed. Exceptions to the above general rule are carved out in para 102 in Bhajan Lal (supra) which reads as under: "102. 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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power 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 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 42 PART E 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. (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. In the said paragraph, the Hon’ble Apex Court has also taken into consideration the implications flowing from the judgment of State of Haryana vs. Bhajanlal and others”, as reported in AIR 1992 Supreme Court 604. 8. It’s not even that. Recently, a judgment was rendered by the Hon’ble Apex Court on 10.04.2023 in the matters of “Central Bureau of Investigation Vs. Aryan Singh Etc.” in Criminal Appeal Nos.1025-1026 of 2023. The Hon’ble Apex Court, in its paragraph no.4, has yet again made an observation, that it is becoming a very common feature that the High Courts, while exercising their jurisdiction under Section 482 of CrPC and Article 226 of the Constitution of India, are entering into the merits of the matter, and are appreciating the evidence for the purposes of exercising the aforesaid jurisdiction, and quashing the proceedings. 9. The Hon’ble Apex Court has observed that even if there is an argument of malicious proceeding, that, too that would be an aspect, which could be arrived at only after the appreciation of the evidence and not merely on the basis of the argument extended by the learned counsel for the applicants, because a malicious act will always entail a consideration of the evidence in the given set of circumstances in the case, which is argued before the Court. 10. 10. Hence, the Court has observed that merely on the grounds of the argument that it is a malicious proceeding, the court is not suppose to conduct a mini trial to appreciate an evidence and then arrive at a conclusion of its own. This is what has been observed in paragraph no.4, 10 and 11, of the Hon’ble Apex Court judgment, which is extracted hereunder:- “4. It is submitted that thereafter both the accused Aryan Singh and Gautam Cheema filed discharge applications before the learned Trial Court, which came to be dismissed on merits. It is submitted that thereafter by the impugned judgment and order, in exercise of the powers under Section 482 Cr.P.C., the High Court has quashed the entire criminal proceedings, as if, the High Court was conducting a mini trial.” 10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”. 11. One another reason pointed by the High Court is that the initiation of the criminal proceedings / proceedings is malicious. 11. One another reason pointed by the High Court is that the initiation of the criminal proceedings / proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings / proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” 11. In fact, the learned counsel for the applicants, while arguing the C482 application, has attempted to concentrate his argument to invoke the jurisdiction under section 482 of CrPC, on the basis of the appreciation of the evidence, which he has been placed on record in C482 application, in order to substantiate his argument that none of the offences for which the cognizance has been taken by an order dated 10.11.2022, could be made out against the present applicants. 12. As already observed, this Court is of the view that this may not be a scope under section 482 of CrPC to appreciate an evidence and then to arrive at a conclusion as to whether, at all, there is any sanctity in the set of allegations leveled in the FIR, which stood affirmed by the submission of the chargesheet and ultimately by issuance of summoning order. 13. All the contentions with regards to the defence as argued by the learned counsel for the applicants are yet open to be argued before the learned Trial Court, which could be the best authority to appreciate evidence, and then to arrive at a conclusion. Hence, so far as the ambit of the exercise of the powers under section 482 of CrPC, is concerned, in the given set of the circumstances, the present case is not fit for availing the same. Hence, the C482 application lacks merit, and the same is accordingly dismissed.