Anoop Gaur vs State of Uttarakhand & another

Lok Pal Singh, J.

By way of present criminal misc. application, moved under Section 482 of Cr.P.C., the applicant seeks to quash and set aside the impugned

cognizance / summoning order dated 03.05.2016, as well as the entire proceedings of Criminal Case No. 374 of 2016, state vs. Anoop Gaur and

others, in respect of offences punishable under Sections 420, 467, 468, 471, 506, 120B IPC, registered with police station Raiwala, District Dehradun,

pending in the court of Judicial Magistrate, Rishikesh, District Dehradun.

2) Brief facts of the case are that a society in the name of Swami Divya Nand Sansthan, Gauri Vihar Colony, Haripur Kalan, District Dehradun was

got registered by Swami Vinod Giri and others with Registrar of Societies, Chits and Funds, Dehradun. A certificate of registration of Society dated

28.05.2013 was issued by the Registrar. The registration of said society was valid upto 28.05.2018.

3) The said society was established for charitable purposes. For smooth functioning of the society one Mr.M.M.Naithani, was appointed as President

along with other office bearers. The applicant was neither involved in the formation of society nor hold any post of the office bearer.

4) On 18.11.2014, respondent no. 2 filed an application under Section 156(3) of Cr.p.C. before the Judicial Magistrate, Rishikesh against present

applicant and ten other persons, alleging therein that he (respondent no.2) is the Secretary of Swami Divya Nand Sharda Foundation and the accused

persons got registered a forged society showing the address of his society and thereafter altered the address of society by committing forgery in the

document of the society. On the direction of the concerned Magistrate, S.H.O., P.S. Dalanwala, District Dehradun registered the application under

Section 156(3) Cr.P.C. Consequently, case crime no. 83 of 2014, under Sections 420, 467, 468, 471, 504, 506 and 120B IPC, State vs Anoop Gaur and

others, was registered at P.S. Raiwala, District Dehradun.

5) After registration of FIR, the applicant and other accused persons filed Criminal Writ Petition no. 1527 of 2014, Anoop Gaur and others vs State

and others, before this Court for quashing the impugned FIR. This Court vide order dated 18.12.2014, as an interim measure, provided that no coercive

measures shall be adopted against the petitioners during the course of interrogation and investigation, provided they cooperate with the Investigating

Agency.

6) The Investigating Officer submitted the charge sheet on 28.10.2015 before the Judicial Magistrate, Rishikesh. Learned Judicial Magistrate took

cognizance in respect of offences punishable under Sections 420, 467, 468, 471, 506, 120B IPC and summoned the accused. Feeling aggrieved against

the same, the applicant filed present criminal misc. application under Section 482 Cr.P.C.

7) I have heard learned counsel for the parties and perused the material available on record carefully.

8) It is the contention of learned counsel for the applicant that the Society was registered after completing the necessary formalities and considering

the requisite documents and Ms. M.M. Naithani was appointed as President of the Society and 10 other persons became other officials. It is further

contended that the allegations made in the application under Section 156(3) Cr.P.C. culminated into lodging of FIR against the applicant. From the

bare perusal of FIR, prima facie, no case is made out against the applicant. It is further contended that after considering the facts and circumstances

of the case, interim protection was granted in favour of the applicant by this Court.

9) On a bare reading of the FIR and the charge sheet thus submitted, foundation of criminal offence is laid against the accused-applicant. Judging by

the same yardstick, the Court does not find any merit in the grounds which have been taken on behalf of the applicant in present application under

Section 482 Cr.P.C. The Court need not reproduce those grounds which have been taken by the applicant, as the same are part of the record.

10) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of

exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted

allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are

so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal

offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant

and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if

there is substantial compliance with the requirements of the offence.

11) Learned counsel for the applicant drew attention of this Court towards a judgment of Hon’ble Apex Court rendered in Inder Mohan Goswami

and another vs State of Uttaranchal and others, (2007) 12 SCC 1, and placed reliance on the following paragraphs:

“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.

Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such

exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of

the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent

powers in absence of specific provisions in the Statute.

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 court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior

motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an

inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide

has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the

aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.â€​

12) There appears to be no illegality in the orders under challenge. No interference is called for in the same at this stage, as would also be evident

from the law laid down by Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. Para 28 of the said

ruling is reproduced here-in-below for convenience:

“28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a 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. Likewise, it is not a stage for

determining how weighty the defences raised on behalf of the accused is. Even if the accused is 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 accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to

substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable

consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There

is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled

allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of

the allegations levelled, trial must be held.â€​

13) The Court was again taken through the contents of the FIR. From a bare perusal of FIR, it is apparent that foundation of criminal offence is laid

against the applicant in the instant case. Criminal proceedings pending against him, therefore, should not be quashed. The jurisdiction under Section

482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution.

14) It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction

under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically

laid in the Section itself. The applicant, in the instant case, is unable to pass those tests.

15) In view of the above discussion, this Court is of the view that present application under Section 482 Cr.P.C. is devoid of merit and is liable to be

dismissed. The same is, accordingly, dismissed. It is however made clear that the trial court shall proceed with the matter without being prejudiced by

any of the observations made by this Court while deciding present application under Section 482 Cr.P.C.