Pooran And Another vs State Of U.P. And Another on 22 April, 2025

Allahabad High Court

Pooran And Another vs State Of U.P. And Another on 22 April, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:60469
 
Court No. - 73
 

 
Case :- APPLICATION U/S 482 No. - 1424 of 2025
 

 
Applicant :- Pooran And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Sangeeta Shukla,Sushil Kumar Chaturvedi
 
Counsel for Opposite Party :- G.A.,Ram Kumar
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Sushil Kumar Chaturvedi, learned counsel for the applicants as well as Sri Vikas Sharma, learned State Law Officer for the State and Sri Ram Kumar for the opposite party no. 2.

2. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavits and the application be decided on the basis of the documents available on record. With the consent of the parties, the application is being decided at the fresh stage.

3. The case of the applicants is that a complaint stood lodged by the opposite party no. 2 on 30.11.2022 who happens to be the father of the victim who is aged about 17 years with an allegation that on 23.11.2022 when the victim who happens to be a daughter had gone to answer the natures call in the agricultural field in the evening then the applicants herein who were already present over there with illegal intentions overpowered the victim and thereafter with the help of a stole, they tried to put it in the mouth of the victim and administered beating and also committed offence of pressing the chest (breast) and also prepared the video of the same. As per the complaint on 25.11.2021, the complaint was made before the Senior Superintendent of Police, Mathura and on their own, got the medical examination done. Learned counsel for the applicants submits that the entire allegations so contained in the complaint, if taken into face value would not result in any infliction of criminality particularly in view of the fact that the entire motive behind inflicting of criminal proceedings is an outcome as a counter blast as earlier on 12.11.2022, a first information report stood lodged by the applicant no. 2 against the opposite party no. 2 under Sections 452, 307, 504, 506 & 34 IPC being FIR No. 0483 of 2022 relatable to the commission of offencess on 19.07.2022. He submits that just in order to put the applicants in a negotiating table to arrive at a settlement, force is being sought to be exerted and, thus, he submits that no offences have been committed. According to the learned counsel for the applicant, there is a major inconsistency and the variance in the statement of the victim under Section 202 and of the complainant under Section 200 as though the victim has come up with a stand and she has deposed that the incident was recorded in the mobile in the form of a video recording but the first informant has denied the same as according to him, no video was prepared. Learned counsel for the applicant, thus, submits that the court below has proceeded to summon the applicants merely on asking in a mechanical manner without adverting to the core and fundamental issues which were required before summoning.

4. Sri Ram Kumar, learned counsel for the opposite party no. 2 has countered the submission of the learned counsel for the applicants while contending that there is very limited scope of interference in the proceedings under Section 482 of Cr.P.C. as this Court may not come to the rescue particularly when there happens to be a pin-pointed allegation against the applicants by the victim in the statements under Section 202 Cr.P.C. and the same is in conformity and in consonance with the complaint. He further submits that the issue as to whether it is a matter of counter blast is a fact which is to be thrashed out in the trial.

5. Sri Vikas Sharma, learned State Law Officer has adopted the argument of the counsel for the opposite party no. 2, he submits that there happens to be consistency in the statement of the victim under Section 202 and 200 as well as the complaint and this much is required at the stage of summoning the accused.

6. I have heard learned counsel for the parties and perused the record carefully.

7. The pivotal question which arises for consideration in the present proceedings at this stage is the extent of judicial intervention. Apparently, before delving into the matter further there are certain factors which have to be kept in mind which also includes the fact as to whether the court below while summoning has considered the complaint vis-a-vis the statement under Section 200 and the 202 and they are in conformity and in consonance with each other or not.

8. Notably, in the present case pin pointed allegations have been levelled by the victim against the applicants regarding molestation, beating as well as attempting to outrage the modesty and having committing physical contact pressing the chest (breast) and inserting the finger in the private part while invoking the provisions of Section 3/4 of the POCSO Act. Once the Magistrate has formed an opinion and there happens to be no major inconsistency and prosecution supports the case as depicted in the complaint then, of course, it would not be appropriate to interfere at this stage. Besides the aforesaid fact, Section 29 of the Prevention of Children for Sexual Offences Act, 2012, according to which where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections, 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. The words employed by the legislature ‘unless contrary is proved’ is of significance and in the given facts and circumstances the stage would be come when the trial commences. As regards the theory propounded by the applicant that there happens to be a first information report lodged by the applicant no. 2 against the opposite party no. 2 which became a motivating factor for lodging of the complaint is concerned, the same can be at best a defence and consideration whereof would only arise when the trial commences in order to determine as to whether it is a case of conviction or acquittal. With respect to the argument sought to be canvassed by the applicants that in the statement of the complainant under Section 200 it has been deposed that videography was not made, however, in the statement of the victim, it has been pin pointed that videography was made and, thus, the applicant is entitled to the benefit in this regard the same is also out of context as the same might be a factor which may have some impact but not at this stage but at the stage of trial.

9. The Hon?ble Apex Court in M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, AIR 2021 SC 1918 had the occasion to consider the ambit and the extent of intervention under Article 482 Cr.P.C. wherein it was observed as under:-

?23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or ?no coercive steps to be adopted?, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or ?no coercive steps to be adopted? during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ?rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.

Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or ?no coercive steps to be adopted? and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or ?no coercive steps? either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of ?no coercive steps to be adopted? within the aforesaid parameters, the High Court must clarify what does it mean by ?no coercive steps to be adopted? as the term ?no coercive steps to be adopted? can be said to be too vague and/or broad which can be misunderstood and/or misapplied.?

10. The case of the applicants does not fall within the exception was carried out in the case of M/s Neeharika Infrastructure Pvt. Ltd. (supra).

11. No good ground is made to interfere with the proceedings and to throttle the investigation. Resultantly, the application is dismissed.

Order Date :- 22.4.2025

Rajesh