A.F.R.
Court No. - 44
Case :- CRIMINAL MISC. WRIT PETITION No. - 19922 of 2019 Petitioner :- Ikram Ahmad And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Siddhartha Srivastava,Mohd. Farooq Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J. Hon'ble Raj Beer Singh,J.
1. Heard Sri Siddhartha Srivastava, learned counsel for the petitioners, Sri Prabhash Pandey, learned A.G.A. for the State- respondents and perused the material on record.
2. This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 10.07.2019, which has been registered as FIR No. 0221/2019, under Section 379 IPC and Section 4 / 21 of Mines and Minerals (Development & Regulation) Act 1957 and Rule 3, 7 and 57 of U.P. Miner Mineral (Concession) Rules, 1963, P.S. Sarai Akil, District Kaushambi.
3. It has been argued by the learned counsel for the petitioners that the impugned first information report lodged by the respondent no.4 is against the provisions of law as Section 22 of 1957 Act, provides that cognizance in such matters can only be taken on the complaint made by a person authorized by the competent authority and likewise Rule 74 of U.P. Miner Minerals (Concession) Rules, 1963 also provides similar embargo on the point of cognizance. It has been submitted that the provisions of Mines and Minerals Act, 1957, being special provision, would prevail over general law. It has been next argued that the petitioners were not found at the spot nor they have indulged in any illegal mining and thus, no offence is made out against them. Learned counsel has relied upon the case of Jeewan Kumar Raut & Anr. vs. Central Bureau of Investigation (2009) 7 SCC 526.
4. Per contra, learned A.G.A. has submitted that from the perusal of the allegations made in the impugned F.I.R., it cannot be said that no cognizable offence is made out, hence the impugned F.I.R. is not liable to be quashed. He has cited the case of Rishipal vs. State of U.P. Crl. Misc. W.P. No. 12052 of 2010 and others and the case of State of NCT of Delhi vs. Sanjay 2014 AIR SCW 5487.
5. 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 and Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint 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 FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C. In the well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, 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. Guidelines are as follows:
(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 to 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 156(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 every 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."
6. The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. (2000 Cr.L.J. 569) after considering the various decisions including State of Haryana v. Bhajan Lal (AIR 1992 SC 604) that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case.
7. In the case of R. Kalyani v. Janak C. Mehta and Others reported in 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."
8. 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. reported in 2015 AIR SCW 3700.
9. Keeping in view the above stated settled position of law, in the instant case, perusal of record shows that there are allegations against the petitioner in the FIR that petitioners have indulged in illicit mining and theft of sand. In view of the allegations made in the FIR, it cannot be said that no cognizable offence is made out against the petitioner.
10. So far as the argument regarding cognizance in such matter is concerned, in the case of State of NCT of Delhi vs. Sanjay 2014 AIR SCW 5487, it was held that in a case where there is theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a Police report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. Further in the case of Rishipal vs. State of U.P. Crl Misc. W.P. No. 12052 of 2010, a Division Bench of this Court has held as under.
"In the facts and circumstances stated above, since the petitioner has been charged with offence under Section 379 IPC besides the offences under Section 3/21 of the Mines and Minerals (Regulation and Development) Act, 1957, under Rules 3/57/70 of the U.P. Mines Mineral (Concession) Rules, 1953 and Section 2/3 of the U.P. Gangsters Act, which are cognizable offences, we have no reason to take a view different from the view taken by the Apex Court in State of Orissa (supra) and other decisions to infra."
The above stated case laws are applicable in the present case and in view of that legal position, impugned FIR is not liable to be quashed on the ground raised by the learned counsel for the petitioner. In the case of Jeewan Kumar Raut (supra) relied by the learned counsel for the petitioners, the issue was inter alia related with the application of Section 22 Transplantation of Human Organs Act, 1994 vis-a-vis Section 167(2) and 173(2) of Cr.P.C. The nature of the issue involved in the present case is quite different and the above case does not help the case of the petitioners. In fact, the issue involved in the instant case is squarely covered in the case of Rishipal vs. State of U.P. as well as the authority of Supreme Court in the case of State of NCT of Delhi vs. Sanjay (supra), referred hereinabove. In view of the legal position, emerging from these decisions, it is apparent that the impugned FIR is not liable to be quashed on the ground of alleged Bar of Section 22 of the Act.
11. It is apparent from the FIR and material on record that a prima facie cognizable offence is made out against the petitioners and that in view of the FIR and material on record, it cannot be said that no prima facie case is made out against the petitioners. The case of the petitioners does not fall in any of the category enumerated by the Apex Court through various judicial pronouncement for quashing of FIR. 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 F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases.
12. As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of FIR or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In the judgments of Rupan Deol Bajaj v.
K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 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. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Article 226 of the Constitution of India. 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. The relevant passage reads thus: (SCCp. 550, para 11) "11......It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."
13. From the above stated legal position, it is apparent that the contentions raised by the learned counsel for the petitioners regarding factual aspect of the matter, can not be examined by this Court. The 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 Article 226 of the Constitution of India. In view of the material on record it can 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.
14. The submissions raised by learned counsel for the petitioners call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be 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 in case a charge sheet is submitted in this case. The perusal of the record makes out, prima facie, offences at this stage and there appears to be sufficient ground for investigation in the case. We do not find any justification to quash the F.I.R. or the proceedings against the accused arising out of it as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
15. In view of the aforesaid, the impugned FIR is not liable to be quashed. Thus, the petition is liable to be dismissed.
16. Accordingly, the present petition is dismissed.
(Raj Beer Singh, J.) (Ramesh Sinha, J.) Order Date :- 26.7.2019 A. Tripathi