RESERVED
Court No. - 14
Case :- APPLICATION U/S 482 No. - 26826 of 2018
Applicant :- Akash Sharma
Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Rajesh Sharma Counsel for Opposite Party :- G.A.
Hon'ble Krishna Pratap Singh,J.
Heard learned counsel for the applicant and learned Additional Government Advocate and perused the record of the case.
This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the summoning order dated 28.07.2016 as well as order passed on 01.02.2018 for issuing Non Bailable Warrants (NBW) against applicant passed by the Additional Chief Judicial Magistrate, Court No. 5 Aligarh in Complaint Case No. 545 of 2015 (Vijay Kumari Vs. Akash Sharma and Another), under Sections 376, 504, 506 I.P.C., Police Station Banna Devi, District Aligarh.
In brief the facts of the case are that the complainant- prosecutrix/opposite party no. 2 consented to cohabitation on assurance of accused-applicant that he would marry her but he refused. Opposite party no. 2 approached to the concerned police station for lodging the first information report against accused-applicant but no action was taken. Thereafter, she sent an application to the Senior Superintendent of Police (SSP) Aligarh on 18.04.2015 but no action was taken so she moved an application under Section 156(3) Cr.P.C. for registering the criminal case against the accused-applicant. Learned trial Court treated the same as complaint, the statement of opposite party no. 2 and witnesses were recorded under Section 200 and 202 Cr.P.C. and accused-applicant was summoned.
Learned counsel for the applicant has submitted that the allegations made in the complaint is totally false and fabricated. Applicant has been falsely implicated in the present criminal case. It was further submitted that the opposite party no. 2 was not medically examined by the doctor. No medical report was submitted at the time of filing of application under Section 156 (3) Cr.P.C. It was also submitted that no offence under Section 376, 504 and 506 I.P.C. is made out against the applicant. It was next submitted that the opposite party no. 2 used to come at the house of the applicant and was making pressure on him for solemnizing marriage when he refused she became annoyed and filed an application under Section 156(3) Cr.P.C. Applicant is a peace loving and law abiding citizen having no criminal history. Lastly it was submitted that learned Magistrate has passed the impugned order without applying his judicial mind.
On the other hand, leaned A.G.A. has submitted that the trial Court has categorically recorded the findings. The charges levelled against the applicant are constituted. There is no illegality, error or impropriety in the impugned order. It was also submitted that the questions raised by the applicant in this application may be raised before the trial Court at appropriate stage.
I have considered the rival submissions made by the learned counsel for the parties and perused the record.
From perusal of the material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court exercising power under Section 482 Cr.P.C. Only in case where the Court finds there has been failure of justice or misuse of judicial mechanism or procedure, sentence and order passed was not correct, this power may be exercised to prevent the abuse of process of miscarriage of justice. The High Court in exercise of its jurisdiction under Section 482 Cr.P.C. must take just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. It is not a stage for determining weighty defence raised on behalf of the accused. Even if accused successful in showing some suspicion or doubt in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusation levelled by the prosecution/complainant without allowing the prosecution or complainant to adduce evidence to substantiate the same. The converse, however, not true because even if trial is proceeded with, the accused would still be in position to succeed by establishing his defence by producing evidence in accordance with law.
Guidelines with regard to the exercise of jurisdiction by the Court under section 482 Cr.P.C. have been laid down by Hon'ble Apex Court from time to time.
In State of Himachal Pradesh Vs. Pirthi Chand and another, 1996 (2) SCC 37, Hon'ble Supreme Court held thus:
"It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before the embarking to scrutinize the FIR/charge-sheet/ complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under section 161 of the Code in support of the charge- sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non- compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witness on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the Court may embark upon the consideration thereof and exercise the power."
In State of Bihar Vs. Rajendra Agrawalla, 1996 SCALE (1) 394, Hon'ble Apex Court observed as under:
"It has been held by this Court in several cases that the inherent power of the court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the court, if such power is not exercised. So far as the order of cognizance by a Magistrate is concerned, the inherent power can be exercised when the allegations in the First Information Report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prima facie case is made out."
In State of Haryana Vs. Bhajan Lal, 1992 (51) SCC 335, Hon'ble Apex Court laid down certain broad tests to exercise the inherent power or extraordinary power of the High court. On the cost of repetition it is not necessary to reiterate the guidelines. Suffice it to state that they are only illustrative. The High Court should sparingly and only in exceptional cases, in other words, in rarest of rare cases, and not merely because it would be appealable to the learned Judge, be inclined to exercise the power to quash the FIR/Charge sheet/complaint.
In Rupan Deol Bajal Vs. Kanwar Pal Singh Gill, 1995 (7) JT 299, (2000) 3 SCC 269 Hon'ble Apex Court reiterated the above view and held that when the complaint or charge sheet filed disclosed prima facie evidence, the court would not weigh at that stage and find out whether offence could be made out.
These guidelines were reiterated by Hon'ble Apex Court in Central Bureau of Investigation Vs. Duncans Agra Industries Limited, 1996 (5) SCC 592, Rajesh Bajaj Vs. State NCT of Delhi, 1999 (3) SCC 259 and Zandu Pharmaceuticals Works Limited Vs. Mohd. Sharaful Haque and another (2005) 1 SCC 122.
In view of the aforesaid settled principles of law, I am not inclined either to quash the entire proceedings of the Complaint Case or the cognizance order. Hence, quashing of the same is hereby refused.
Accordingly, this Application Under Section 482 Cr.P.C is
rejected.
Order Date :- 24.08.2018 A.K.Verma