Court No. - 48
Case :- CRIMINAL MISC. WRIT PETITION No. - 20559 of 2019 Petitioner :- Umang Kumar And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashok Kumar Singh Bais Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J. Hon'ble Raj Beer Singh,J.
Per: Hon'ble Raj Beer Singh,J.
Heard Sri Ashok Kumar Singh Bais, learned counsel for the petitioners, Sri Prabhas Pandey, learned counsel for respondent no. 3, Sri J.K. Upadhyay, learned A.G.A. for the State-respondents and perused the material on record.
This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari for quashing the impugned FIR dated 22.07.2019, which has been registered as Crime No. 501 of 2019, under Sections 420, 467, 468, 471 of IPC, P.S. Sadar Bazar, District Saharanpur.
It has been argued by the learned counsel for the petitioners that entire allegations made in the impugned FIR against the petitioners are false and baseless and the petitioners have been falsely implicated only for the purpose of harassment. It was submitted that petitioner no. 1 and respondent no. 3 were having love affair and they got married on 03.10.2018 at Saharanpur and even a marriage certificate was issued to them. After marriage, they started living a happy marital life and even a Civil Misc. Writ Petition No. 34829 of 2018 was filed by them for protection of their matrimonial life and that they have also got their marriage registered. It was stated that in the FIR Crime No. 643 of 2018, registered by the father of the informant/respondent no. 3, the respondent no.3 has made a statement that she is major and has solemnized marriage with her own free will. It was argued that later on some dispute arose between petitioner no. 1 and informant/respondent no. 3 and thereafter, she has lodged the impugned FIR making false and baseless allegations by developing an entirely concocted story. It was stated that in view of the above-stated facts, the version mentioned in the impugned complaint cannot be believed. It has been argued that petitioners have not committed any offence and prima facie no case is made out against them and, hence, the present FIR is liable to be quashed.
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.
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 held that those guidelines 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."
The issue has been reconsidered by the Supreme Court on several occasions. However, in (2003) 6 SCC 195 (Union of India vs. Prakash P. Hinduja and Another) the Supreme Court narrowed down the scope of Ch. Bhajan Lal (supra) and held as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings are: (1) where the allegations made in the FIR or 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 uncontroverted allegations made in the FIR or the 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, (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great 5circumspection."
In case of State of Haryana v. Bhajan Lal & Ors. (supra) also, in guideline number 3 it was laid down that 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 do not make out a case against the accused, the Court may quash the FIR as well as the investigations, however a note of caution was added by observing that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. It was held that the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.
In case 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.
On the point of quashing of FIR, The Full Bench of this Court in case of Ajit Singh @ Muraha v. State of U.P. (2006(56) ACC433) 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 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.
In the instant case, there are allegations in the impugned FIR that the informant was kidnapped by the petitioners and that in order to save themselves from the offence of crime no. 643 of 2018, under Section 366 of IPC, which was registered by the father of informant, the petitioners got prepared a forged marriage certificate and a petition was filed before the High Court for protection. The informant was threatened to make statement in favour of accused persons/petitioners and her signatures were obtained on blank papers. She has also alleged that she has never performed marriage with petitioner no. 1 nor she has signed any document in that regard, rather on 03.10.2018, which is the alleged date of marriage, she was present at her college Kurukshetra. She has further alleged that the petitioners have prepared a forged document and got the alleged marriage registered. It is clear that the allegations constitute a prima facie offence.
The submissions raised by learned counsel for petitioners relate to the questions of fact and thus, can not be examined by this Court in proceedings under Article 226 of the Constitution of India. The appreciation of evidence or the reliability of the allegations can not be examined at this stage. 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."
From the above stated case laws it is apparent that the above stated contentions raised by the learned counsel for the petitioner(s) 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. FIR or criminal proceedings can be quashed only in accordance with parameters laid down by Hon'ble Apex Court in catena of decisions. In the instant case from the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. The present petition does not fall in any of such category, wherein, this Court can exercise jurisdiction under Article 226 of the Constitution of India to quash the impugned FIR. Hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner(s).
In view of aforesaid, the petition lacks merit and thus, liable to be dismissed.
Accordingly, petition is dismissed.
(Raj Beer Singh,J.) (Pritinker Diwaker,J.) Order Date :- 26.8.2019 A. Tripathi/Anand