Court No. - 17
Case :- APPLICATION U/S 482 No. - 38514 of 2018 Applicant :- Imtiyaz @ Intiyaz Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Susheel Kumar Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Susheel Kumar, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge sheet dated 9.7.2018 and cognizance order dated 1.9.2018 in Case No. 701 of 2018 (State Vs. Mallu and other), arising out of Case Crime No. 797 of 2017, u/s 376D, 506 I.P.C. & 3/4 POCSO Act, P.S. Kharkhauda, District Meerut, pending in the court of Special Judge/ POCSO Meerut.
Learned counsel for the applicant has contended that the opposite party no. 2, who is alleging herself to be victim of this case, has falsely implicated the accused-applicant in this case, who is cousin brother of the victim, due to some property dispute. It is further stated that the name of the accused-applicant has not been taken by the opposite party no. 2 in her statement u/s 161 Cr.P.C. regarding rape. He further submitted that if the proceedings are allowed to continue that would amount to abuse of process of law.
Learned A.G.A. has vehemently opposed the prayer for quashing stating that in statement u/s 164 Cr.P.C. the victim has clearly taken the name of accused-applicant, who has raped the opposite party no. 2 along with other persons namely Mallu, hence prayer for quashing the same should be refused.
Having heard the learned counsel for the parties and after perusing the entire material available on record, this court has to see as to whether the applicant has made out a case of quashing the proceedings in the above mentioned case.
Before we deal with the respective contentions advanced on either side, this Court deems it appropriate to have a thorough look at Section 482 Cr. P.C., which reads as under:
"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 injustice."
This court would like to rely upon the interpretation of this Section made in Rishi Pal Singh vs State of U.P., (2014) 7 SCC 215 by the Hon'ble Apex Court, which is as follows :
"10. ........
A bare perusal of Section 482 Cr. P.C. makes it crystal clear that the object of exercise of power under this Section is to prevent abuse of process of court and to secure ends of justice. There are no hard and fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straitjacket formula nor defined parameters to enable a court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The courts have to be very circumspect while exercising jurisdiction under section 482 Cr. P.C..
11. This court in Medchl Chemicals and Pharma (P) Ltd. Vs. Biological E. Ltd., (2000) 3 SCC 269, has discussed at length about the scope and ambit while exercising power under Section 482 Cr. P.C. and how cautious and careful the approach of the courts should be. We deem it apt to extract the relevant portion from the judgment, which reads: (SCC p. 272, Para 2) "2. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge- sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge- sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount".
12. This court in a plethora of judgements has laid down the guidelines with regard to exercise of jurisdiction by the courts under Section 482 Cr. P.C.. In State of Haryana vs Bhajan Lal, 1992 Supp(1) SCC 335 this court has listed the categories of cases when the power under sections 482 can be exercised by the court. These principles or the guidelines were reiterated by this court in (1) CBI vs Duncans Argo Industries Ltd, (1996) 5 SCC 591, (2) Rajesh Bajaj vs the State (NCT of Delhi), (1999) 3 SCC 259, and Zandu Pharmaceutical Works Ltd vs Mohd. Sharaful Haque, (2005) 1 SCC 122. This court in Zandu Pharmaceutical Works Ltd observed that:
The power under sections 482 of the court should be used sparingly and with circumspection to prevent abuse of process of court, but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of prosecution would lead to abuse of process of court, the power under section 482 of the Code must be exercised and proceedings must be quashed.
Also see Om Prakash vs State of Jharkhand, (2012) 12 SCC 72, SCC p. 95, Para 43.
13. What emerges from the above judgements is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 Cr. P.C. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact."
Perusal of the F.I.R. indicates that the accused-applicants are alleged to have beaten the opposite party no. 2 with lathi, danda & axe and serious injuries are also alleged to have been caused to the opposite party no. 2. It is also recorded in the F.I.R. that medical examination was also conducted, although no injury memo has been annexed by the accused-applicants.
In view of above discussion, this court has come to an irresistible conclusion that continuation of criminal proceedings against the applicant for commission of the alleged offence under the aforementioned section is not an abuse of process of law. On consideration of allegations made in the case it is found by the court below that the allegations were supported by the prosecution witnesses and necessary ingredients of offence were made out, therefore the conclusion that a prima facie case was made out against the applicant, does not not suffer from any lacuna and the prosecution could not be held to be vexatious or oppressive.
Accordingly, the prayer for quashing the proceedings is refused and the application u/s 482 Cr.P.C. is dismissed.
Order Date :- 27.10.2018 A.P. Pandey