Tahir Khan and Others vs State of U.P. and Others

Vishnu Chandra Gupta, J.�By means of this petition under section 482 Code of Criminal Procedure (hereinafter referred to as the ''Cr.P.C.'') petitioners Tahir Khan, Nasim Khan, Wahid Khan and Laddan Khan have prayed for quashing the proceedings of Criminal Case No. 11 of 2009 arising out of Crime No. 739 of 2008 under section 342 I.P.C, P.S. Mohammadi, District-Kheri pending in the Court Judicial Magistrate, Mohammadi, District-Kheir along with order dated 9.1.2009 passed by learned Judicial Magistrate, Mohammadi in Case No. 11 of 2009 whereby final report submitted by the police in this case was rejected and cognizance has been taken against the accused-petitioners. The brief facts for deciding this petition are that an F.I.R. has been lodged by opposite party No. 2-Sattar Khan on 10.7.2008 alleging therein that his son Mobin was missing since last 20-22 days. On 3.7.2008 he came to know that his son Mobin has been illegally detained by the petitioners and was seen by Ali Khan and Nasim in the company of the petitioners. The opposite party No. 2. the informant, was not permitted by the petitioners to meet with Mobin. It was also alleged that Mobin was in employment in establishment of petitioner No. 1-Tahir Khan and some amount of salary was due. The O.P. No. 2 suspect misbehavior by accused persons with Mobin.

This information was lodged at Case Crime No. 739 of 2008, under section 342 I.P.C. in P.S. Mohammadi, District-Kheri. After investigation a final report has been submitted. The police mentioned in final report that actually Mobin abducted his cousin sister Smt. Parveen W/o Wahid Khan on 13.6.2008 when she was going to her parent''s house to take back her minor daughter. A Non-Cognizable Report has been lodged by Hanif Khan father of Smt. Parveen on 26.6.2008. Mobin is doing service at Lucknow. Smt. Parveen has come back but Mobin is still in Lucknow and Mobin was not in illegal confinement of the petitioners.

The protest petition has been filed by the opposite party No. 2. Sttar Khan. After considering the protest petition, the learned Magistrate observed that Investigation Officer filed final report in hurry. The statement of informant recorded under section 161 Cr.P.C. is supporting the version of the F.I.R. Consequently, the final report was rejected and accused persons were summoned.

No counter-affidavit has been filed by the opposite party No. 2-Sttar Khan through he was represented by Shri Rajiv Dubey, Advocate.

I have heard learned Counsel for the petitioners and learned A.G.A. for the State and perused the record of the case. None appeared for private opposite party No. 2.

It has been submitted by learned Counsel for the petitioners that the story has been concocted by the opposite party No. 2 to put pressure upon the petitioners to withdraw the case filed by Smt. Parveen against Mobin. The copy of the First Information Report lodged by Smt. Parveen is Annexure No. 3 to this petition, wherein it has been mentioned that she was abducted forcibly by Mobin with the help of wife and sons of the opposite party No. 2 on 3.7.2008. This First Information Report was lodged on 22.7.2008 at about 17:40 p.m. It was also alleged therein that after administrating some intoxicant, she made unconscious and she was raped by Mobin. She was bearing ornaments of Rs. 25,000/- at that time which were also taken by him. This First Information Report was lodged under sections 328, 342, 352, 376, 392, and 506 I.P.C. After investigation in this case the charge-sheet has been filed against Mobin. Earlier to it the father of Smt. Parveen has also lodged a non-cognizable report against Mobin for taking away of the Smt. Parveen on 26.6.2008 and when Smt. Parveen came back on 3.7.2008 then she lodged the report. It has been further submitted that in this connection Mobin was also arrested.

Learned Counsel for the petitioner has drawn the attention of this Court towards the statement of the informant recorded under section 161 Cr.P.C., (annexed as Annexure No. 5 to the petition) and relied upon by the learned Magistrate while passing the order of summoning. The Investigating Officer put certain questions to the opposite party No. 2, Sttar Khan. The first question was put by the Investigating Officer; whether you cooked up the story because a case has been filed against you for taking away Smt. Parveen wife of Wahid Khan. The opposite party No. 2 stated that his son Mobin having love affairs with wife of the Wahid Khan but he has no concerned with it. Later on the wife of Wahid Khan and his son Mobin have already come back. He put another question; Whether it is not true that your son is in your relations and you lodged this false report? But he denied it.

It is not in dispute that Mobin is serving at Lucknow and took away the wife of the Wahid Khan, who has been arrayed as petitioner No. 3 in this petition. It is also evident from the report lodged by the opposite party No. 2 that his son Mobin was having some dispute regarding payment of salary with petitioner No. 1-Tahir Khan.

In Maksud Saiyed Vs. State of Gujarat and Others, the Apex Court held that summoning of accused in a criminal case being a serious matter. The Magistrate should apply his mind while doing so and should not act mechanically and in routine manner.

In Indra Mohan v. State of Uttarakhand and others, 2000 (8) SCC 251 the Apex Court held that criminal prosecution could not be permitted to use as an instrument of harassment or for seeking private vendetta or with ulterior motive to pressurised the accused. In such situation refusal to quash criminal proceedings would be improper.

In R.P. Kapur Vs. The State of Punjab, the Supreme Court also summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:

"(a) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.

(b) where the allegations in the first information report or complaint do not constitute any offence.

(c) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

The scope of exercise of power under section 482 Cr.P.C. and the categories of cases where the High Court, may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, . The illustrative categories indicated by this Court 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 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 155(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 ever 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 Act concerned (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 Act concerned, 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."

In view of the legal aspect and factual matrix of this case, the present proceedings are liable to be quashed and cannot be allowed to proceed further being an abuse of process of Court. The reasons for that are as follows:--

"1. That the material relied upon by the learned Magistrate after submission of final report for proceeding against the accused persons is the statement of O.P. No. 2 recorded under section 161 Cr.P.C. This statement is not sufficient to establish prima facie case against petitioners as Sttar Khan is not the eye-witness of abduction of Mobin by the petitioners nor he met with Mobin when alleged to be in the company of the petitioners.

That the witnesses cited in the F.I.R. alleged to have seen Mobin in the company of the petitioners had not support the story of prosecution during investigation.

Mobin has already come back as admitted by opposite party No. 2 in his statement recorded under section 161 Cr.P.C during investigation and before submission of final report.

Mobin is an accused in the case based on the F.I.R. lodged by Smt. Parveen.

That no prima facie case is made out against the petitioners on the basis of material available in the police diary.

The present proceedings seem to have been filed with oblique motive to pressurise the informant to withdraw the case against Mobin."

In view of the above this petition is allowed. The impugned order dated 7.1.2009 passed by Judicial Magistrate, Mohammadi in Case No. 11 of 2009 and the consequential proceedings pending in his Court arising out of the Case Crime No. 739 of 2008, under section 342 Cr.P.C., P.S. Mohammadi, District-Kheri are quashed with all other orders passed therein.