The case is called out.
Heard learned counsel for the applicant and learned A.G.A on behalf of the State.
The present application under Section 482 Cr.P.C. is moved with a prayer to quash the entire proceeding of Sessions Trial No.505/2014 Crime No.448/2013 under Section 302 I.P.C., Police Station Kakori, District Lucknow as well as the impugned order dated 9.7.2018.
The basis for the relief as pleaded by the applicant is that he has never committed the offence and falsely been implicated in this case. Further he claims that there is no evidence against him and there is no independent evidence in support of the prosecution story. He claims himself a cancer patient and the treatment is going on and he seeks sympathy on the ground that his grand mother is 100 years old and a non bailable warrant is running against him since 9.7.2018.
This application was first taken up on 13.6.2019 and on that date learned A.G.A informs that accused is absconding since 9.7.2018 and he sought two days time to seek instructions. He was allowed the time required by him but no instruction till date is received by him and even today he seeks further time.
The materials placed on record tend to show that there is no specific allegation as to any step through out the process of the F.I.R., investigation, submission of charge-sheet, committal proceeding or any other proceeding after or before the committal to the Sessions Court. Neither of the grounds made in the application are making any allegation as to the abuse of process on the part of the informant of the case or even any irregularity or illegality which might have been committed by the court in proceeding before it, which would likely to cause injustice to the applicant.
As such the proceedings of sessions trial in the special court is certainly a bonafide prosecution for the reason there is no justification to interfere with the same exercising power under Section 482 Cr.P.C. an extraordinary power vested in the court which should be used sparingly and very cautiously in appropriate cases. Hon'ble Supreme Court in the Case of Inder Mohan Goswami v. State of Uttaranchal (2007)12 SCC 1, has observed as under:-
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice"
"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."
The plea of innocence and non involvement of accused applicant in the offence of murder for the alleged reason of no independent witnesses cannot be denied prima facie. This can be tested and adjudicated after trial taking evidence of prosecution and defence also if led. Any finding as to innocence of the accused on the basis of prima facie evidence collected during investigation by the investigating officer, if recorded, that would be premature and unnecessary before the charges are proved or disproved on the basis of evidence in the course of trial.
Moreover, there is an Annexure No.3 in the application which shows that the applicant has already put his appearance before the Sessions Court in the trial and moved an application for bail and the said court vide its order dated 27.9.2013 has released him on bail on personal bond as well as of the sureties. This is pertinent here to state that in the bail order the learned trial court has observed presence of direct witnesses of 'killing' the victim in the incident by the accused. There are sufficient independent witnesses with prosecution to establish involvement of the accused. The accused further moved an application for cancellation/recall of N.B.W pending before the trial Court. The said N.B.W. was issued by the court on his default in appearance and he is declared as absconder. As such, there is no any illegality or irregularity found in the order of N.B.W. running against the accused and the purpose of the NBW and further process nothing but to procure and ensure the attendance of accused in the trial. The accused is bound to appear before the court in the trial as he was granted his release on bail, abiding himself with the said term. There is no case made out in exercise of extraordinary jurisdiction under Section 482 Cr.P.C.
In the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604, Hon'ble Supreme Court has illustrated several circumstances wherein the extraordinary power under section 482 Cr.P.C. maybe exercised for the purpose of preventing an abuse of process or to secure the ends of Justice or to enforce the order of the court. Illustrations given in para 102 quoted hereunder are treated as guidelines for the purpose of exercising of powers under section 482 CRPC:-
"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."
(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 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."
The applicants-accused have no case falling under any of the categories of cases given as illustrative guidelines for the exercise of jurisdiction under Section 482 Cr.P.C. by Hon'ble Apex Court in the above cited judgment State of Haryana Vs. Bhajan Lal (supra), therefore, the present application is rejected.
The learned Trial Judge is directed to commence with further proceeding. The applicant accused is directed to move his application for cancellation of non-bailable warrant and further court process issued against him forthwith for his release. The Trial Judge is further directed that the application of accused shall be considered with a view to ensure his presence in the trial imposing terms and condition a required reason be in the case, if possible on the same day.
Order Date :- 29.11.2019 Gaurav/-