Hameed and Another vs State of U.P. and Another

Surendra Singh, J.—The applicants by way of filing present application u/s 482, Code of Crimimal Procedure have sought to quash the criminal proceedings of Criminal Case No. 1528 of 2008, State v. Hameed and Anr. under Sections 326, 324, 504 and 506, I.P.C. pending in the Court of Ist Additional Chief Judicial Magistrate, Pilibhit and the impugned summoning order dated 11.9.2008 including charge-sheet No. 134 of 2008, arising out of Case Crime No. 194 of 2008 of P.S. New Area, district Pilibhit.

The background facts giving rise to this application in a nutshell are as follows.

The informant Meraj Ahmad lodged a complaint which was registered as N.C.R. No. 53 of 2008 at P.S. New Area, district Pilibhit under Sections 323, 504, 506 and 308, I.P.C. at about 4.30 a.m. against the applicants and one unknown person, pertaining to an incident alleged to have taken place on the same day at about 12.30 a.m. According to the allegations contained in the N.C.R. was that the informant was assaulted while he was sleeping at the site of the construction by the applicants and one unknown person with lathi, danda, kicks and fists. The informant Meraj Ahmad got himself medically examined on the same day at District Hospital, Pilibhit and thereafter X-ray examination was held. On the basis of supplementary report Sections 325 and 324, I.P.C. were added subsequently. Both the applicants were arrested by the police on 6.4.2008 and were released by the police itself on furnishing a personal bond and two sureties.

The police after an usual investigation submitted a charge-sheet against the applicants under Sections 326, 324, 323, 504 and 506, I.P.C. on 11.9.2008 and cognizance of an offence was taken, simultaneously the summons were also issued to the applicants on the same day. Hence, being aggrieved the applicants have preferred the present application before this Court.

Submissions have been made on behalf of the applicants that the injuries alleged to have sustained by the informant are superficial and manipulated and no offence u/s 326, I.P.C. against the applicants is disclosed. The present prosecution has been instituted with mala fide intentions for the purposes of harassment. Learned Counsel for the applicants has submitted that according to the report (N.C.R.), the informant is alleged to have been assaulted by lathi, danda, kicks and fists but the use of knife also was surfaced for the first time in the statement of the informant recorded u/s 161, Code of Crimimal Procedure after sharp edged wound got manipulated. He next argued that the applicants were arrested and soon thereafter released on bail on 6.4.2008 by the police concerned under Sections 325, 324, 323, 504 and 506, I.P.C. and thereafter on the basis of false and concocted story as well as injury report the charge-sheet was submitted in addition to Section 326, I.P.C. so that the applicants can be put behind the bars.

He has further contended that the F.I.R. lodged by opposite party No. 2 is manifestly attended with mala fides and falls under the category of maliciously instituted prosecution with an ulterior motive for wreaking vengeance.

On the other hand, the learned A.G.A. has contended that from the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. At this stage only a prima facie case is to be seen in the light of law laid down by the Hon''ble Apex Court in the cases of R.P. Kapur Vs. The State of Punjab, State of Haryana v. Bhajan Lal 1992 SCC 426; State of Bihar v. P.P. Sharma 1992 SCC 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haqe and Anr. 2005 SCC 283 (Para 10) : 2004 (3) ACR 3063.

Taking note of the submissions of the learned Counsel for the parties and looking into the facts and circumstances of the case, I am of the considered view that all the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court u/s 482, Code of Crimimal Procedure. At this stage only a prima facie case is to be seen in the light of the law laid down by the Hon''ble Apex Court in the cases mentioned above. Even the disputed defence of the accused cannot be considered at this stage. However, the applicants have got a right to claim for discharge u/s 239 or 227/228, Code of Crimimal Procedure as the case may be.

The scope and ambit of Section 482 of the Code have been elucidated in the case of State of Haryana v. Bhajan Lal (XXVIII)1991 ACC 111 , wherein several judicial precedents including those of State of West Bengal and Others Vs. Swapan Kumar Guha and Others, and State of Bihar v. J.A.C. Saldanha (XVII)1980 ACC 279 , held that the High Court should not embark upon an enquiry into the merits and demerits of the allegations and quash the proceedings without allowing the prosecution to complete its task. The ratio of Bhajan Lal''s case has been consistently followed in the subsequent decisions of the Hon''ble Apex Court. In the recent decision in Sanapareddy Maheedhar v. State of A.P. (XVI)2008 ACC 319 : 2008 (1) ACR 691 (SC), the Hon''ble Apex Court in paragraph 30 of the judgment has held in the belownoted terms:

A careful reading of the above noted judgments makes it clear that the High Court should be extremely cautious and slow to interfere with the investigation and/or trial of criminal cases and should not stall the investigation and/or prosecution except when it is convinced beyond any manner of doubt that the F.I.R. does not disclose commission of any offence or that the allegations contained in the F.I.R. do not constitute any cognizable offence or that the prosecution is barred by law or the High Court is convinced that it is necessary to interfere to prevent abuse of the process of the Court. In dealing with such cases, the High Court has to bear in mind that judicial intervention at the threshold of the legal process initiated against a person accused of committing offence is highly detrimental to the larger public and societal interest. The people and the society have a legitimate expectation that those committing offences either against an individual or the society are expeditiously brought to trial and, if found guilty, adequately punished. Therefore, while deciding a petition filed for quashing the F.I.R. or complaint or restraining the competent authority from investigating the allegations contained in the F.I.R. or complaint or for stalling the trial of the case, the High Court should be extremely careful and circumspect. If the allegations contained in the F.I.R. or complaint discloses commission of some crime, then the High Court must keep its hands off and allow the investigating agency to complete the investigation without any fetter and also refrain from passing order which may impede the trial. The High Court should not go into the merits and demerits of the allegations simply because the Petitioner alleges malus animus against the author of the F.I.R. or the complainant. The High Court must also refrain from making imaginary journey in the realm of possible harassment which may be caused to the Petitioner on account of investigation of the F.I.R. or complaint. Such a course will result in miscarriage of justice and would encourage those accused of committing crimes to repeat the same. However, if the High Court is satisfied that the complaint does not disclose commission of any offence or prosecution is barred by limitation or that the proceedings of criminal case would result in failure of justice, then it may exercise inherent power u/s 482, Code of Crimimal Procedure.

In the State of Punjab v. Inder Mohan Chopra 2009 (2) SCC 150, the Hon''ble Apex Court has observed that the High Court should not exercise its inherent power to stifle or to legitimate prosecution. The extract portion of paragraph 8 of the judgment is being quoted hereinbelow wherein it has been held that:

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. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers u/s 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/F.I.R. has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding.

The only conclusion fathomable from the aforementioned decisions of the Hon''ble Apex Court is that while exercising powers under the section, this Court will not function as a Court of appeal or revision, meaning thereby it would not ordinarily embark upon the enquiry whether the allegations in the F.I.R./complaint and the material evidence collected in support thereof is reliable or not and whether such evidence would be sufficient to prove the guilt of the accused applicants or not.

I do not mean to say that any action which would result in injustice and prevent promotion of justice should be allowed to persist. Indisputably, in exercise of the power this Court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of the Court.

In the facts and circumstances and law discussed above it is held that the order taking cognizance of an offence and thereupon the consequential proceedings before the Court below is well in conformity in law and does not suffer with material irregularities or illegalities, therefore, does not warrant any interference in this application u/s 482, Code of Crimimal Procedure, therefore, the application has no force and is hereby dismissed.

However, it is provided that if the applicants appear and surrender before the Court below within a period of four weeks from today and apply for bail, then their prayer for bail shall be considered in view of the settled law laid down by the Seven Judges'' decision of this Court in the case of Amrawati and Anr. v. State of U.P. 2004 (57) ALR 290, (affirmed by Hon''ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P.), after hearing the Public Prosecutor. For a period of four weeks from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicants. However, in case the applicants do not appear before the Court below within the aforesaid period, it will be open to the Court concerned to proceed against the applicants for procuring and ensuring their presence in accordance with law.