Rishabh Jaiswal v. State of U.P Thru. Prin. Secy. Home Secrt. Lko. and 3 Others

Court No. - 16 Case :- APPLICATION U/S 482 No. - 1854 of 2024 Applicant :- Rishabh Jaiswal Opposite Party :- State Of U.P Thru. Prin. Secy. Home Secrt. Lko. And 3 Others Counsel for Applicant :- Sukhveer Singh Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.

¶1Heard Shri Sukhveer Singh, learned Counsel for the applicant, Shri Shushil Kumar Pandey, learned A.G.A. for the State-opposite party and perused the entire material placed on record.

¶2The present application under Section 482 Cr.P.C. has been filed on behalf of the applicant,namely-Rishabh Jaiswal seeking quashing of the charge sheet dated 03.12.2022 and cognizance order dated 13.03.2023, summoning order dated 13.03.2023 passed by learned Additional Chief Judicial Magistrate, Court No.1, District-Unnao in Criminal Case No.1472 of 2023 arising out of Case Crime No.0555 of 2022, under Section 294 I.P.C., Police Station-Bangarmau, District-Unnao (State vs. Rishabh Jaiswal and Others) pending in the court of learned Additional Chief Judicial Magistrate, Court No.1, District-Unnao.

¶3Learned Counsel for the applicant submits that the applicant is the resident of Nasimganj, Bangarmau, Police Station-Bangarmau, District-Unnao and opposite party No.4, who is Police Sub-Inspector is also posted in the same locality who has tried to pacify is ego by falsely implicating the applicant due to village party bandi. As per the prosecution story on 01.12.2022 at about 4:48 P.M., the opposite party No.2 alongwith other police personnel as well as Anti Romeo Squad were searching/checking the suspected persons and vehicles on the Sandila Road, Bangarmau and they were moving towards Sandila Crossing. There were two boys one of which is the present applicant and other was his friend, namely-Faizan, who were standing near the railway crossing and making comments on the females. The police party alongwith opposite party No.4 arrested the applicant and other co-accused, namely-Faizan at 5:30 P.M.

¶4Learned Counsel for the applicant further submits that the police without conducting a proper inquiry and without considering the fact that the applicant and other co-accused person were students and are aspirants of competitive examination, who were just crossing the railway crossing and were heading towards their home, have falsely implicated them only with the intention to show some good work. There was no independent witness nor any eye witness, who has supported the prosecution case. The entire allegations leveled against the applicant are false and based on concocted facts and have been leveled only with the intention to falsely implicate the present applicant to defame him and his entire family members in the society and also to ruin the career of the applicant as he is an aspirant of government job.

¶5Learned Counsel for the applicant further submits that the learned Magistrate also without application of judicial mind took cognizance of the charge sheet and summoned the applicant to face trial in the aforesaid case and the learned Magistrate has also not given any specific finding while summoning the applicant, which also falsify the entire case against the applicant. He further submits that it is a case of police to falsely implicate the applicant and there is no other evidence except the witnesses who are also police personnel, thus, there is lacuna in the charge sheet as well as in the summoning order.

¶6Learned Counsel for the applicant further submits that the applicant is appearing in recruitment of Police Constable conducted by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow, in this regard he has annexed the admit card of the applicant at Annexure No.11 to this application. He further submits that as the applicant has been falsely implicated in the present case due to which he is unable to obtain a character certificate, which is a mandatory document to be produced for selection in a government job. He next submits that when his application for character certificate was rejected by the concerned authority only then he came to know that he has been falsely implicated in the aforesaid case, thus, he submits that the entire story as narrated by prosecution is false and fabricated, therefore, the present application is liable to be allowed and the impugned proceedings initiated against the applicant are liable to quashed as the applicant is an aspirant of government job and if the present proceedings are allowed to continue, it will ruin the entire career of the applicant.

¶7Per contra, learned A.G.A. for the State-opposite party has vehemently opposed the contentions made by learned Counsel for the applicant and submits that there was ample evidence against the applicant, who was present at the railway crossing at the time of incident and the police party in a very cautious manner nabbed him red handed, while he was creating nuisance in a public place and was passing obscene comments on the girls and ladies. Thereafter, the police has thoroughly conducted the inquiry against the applicant and has filed a charge sheet against him considering the material on record, thus, he submits that the trial court has correctly took the cognizance of the charge sheet and has rightly summoned the applicant to face trial in the aforesaid case. He further submits that no interference by this Court is required in the matter and the present application being devoid of merit and substance is liable to rejected.

¶8I have heard learned Counsel for the parties.

¶9On careful perusal of averments made in this application under Section 482 Cr.P.C. as well as after hearing the learned Counsel for the parties, the factual matrix discloses that the opposite party No.4 alongwith his other associates lodged an F.I.R. against the applicant alleging therein that the applicant was passing obscene comments on the females, who were passing by from the railway crossing situated near Bangarmau Railway Station, District-Unnao, thereafter, the applicant was arrested by the police and consequently, he was enlarged on bail. The opposite party No.3 filed the charge sheet in such a hasty manner that even the Naksa Najir was not prepared, which is mandatory provision of the criminal law and further there were no independent eye witness and evidence was found against the applicant to implicate him in the present case. There appears force in the argument of the learned Counsel for the applicant that the applicant is the resident Nasimganj, Bangarmau, Police Station-Bangarmau, District-Unnao and opposite party No.4, who is Police Sub-Inspector is also posted in the same locality who has tried to pacify his ego by falsely implicating the applicant due to village party bandi, there also appears force in the argument of learned Counsel for the applicant that the applicant and other co-accused person were students and are aspirants of competitive examination, who were just crossing the railway crossing and were heading towards their home, have falsely implicated them only with the intention to show some good work. There was no independent witness nor any eye witness, who has supported the prosecution case. The entire allegations leveled against the applicant are false and based on concocted facts and have been leveled only with the intention to falsely implicate the present applicant to defame him and his entire family members in the society and also to ruin the career of the applicant as he is an aspirant of government job. It has been further argued by learned Counsel for the applicant the applicant is appearing in recruitment of Police Constable conducted by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow, in this regard he has annexed the admit card of the applicant at Annexure No.11 to this application, as the applicant has been falsely implicated in the present case due to which he is unable to obtain a character certificate, which is a mandatory document to be produced for selection in a government job. further when his application for character certificate was rejected by the concerned authority only then he came to know that he has been falsely implicated in the aforesaid case. Further, the trial court has failed to appreciate the fact that while filing the charge sheet, the Investigating ofÏcer has failed to comply with the mandatory provisions of criminal law and has passed the impugned summoning order 13.03.2023, which is nothing but an abuse of process of law.

¶10Further the Hon'ble Supreme Court of India in the case Inder Mohan Goswami v. State of Uttaranchal (2007)12 SCC 1 has held that it would be relevant to keep into mind the scope and ambit of section 482 Cr.PC and circumstances under which the extra ordinary power of the court inherent therein as provisioned in the said section of the Cr.P.C. can be exercised, para 23 is being quoted here under:- "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."

¶11Further Hon'ble the Supreme Court of India in the case of Lalankumar Singh and Others vs. State of Maharashtra reported in 2022 SCC Online SC 1383 has specifically held in paragraph No.38 that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufÏcient ground for proceeding exists in the case or not. Paragraph No.38 of Lalankumar Singh and Others (supra) is being quoted hereunder:- "38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal v. Central Bureau of Investigation, which reads thus: "51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.

¶52A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.

¶53However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."

¶12Further, Hon'ble the Supreme Court of India has provided guidelines in case of State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 for the exercise of power under Section 482 Cr.P.C. which is extraordinary power and used separately in following conditions:- "102.(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 F.I.R. 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 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."

¶13Further the Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iii) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283 and (iv) Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, AIR 2021 SC 1918.

¶14In S.W. Palankattkar & others Vs. State of Bihar, 2002

(44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.

¶15Thus, in view of the law laid down by the Hon'ble Apex Court and in light of the observations and discussions made above and keeping view the facts and circumstances of the case, and from the perusal of the record, the impugned charge sheet dated 03.12.2022 and cognizance order dated 13.03.2023, summoning order dated 13.03.2023 passed by learned Additional Chief Judicial Magistrate, Court No.1, District-Unnao in Criminal Case No.1472 of 2023 arising out of Case Crime No.0555 of 2022, under Section 294 I.P.C., Police Station-Bangarmau, District-Unnao (State vs. Rishabh Jaiswal and Others) pending in the court of learned Additional Chief Judicial Magistrate, Court No.1, District-Unnao and the entire proceedings are against the spirit and directions issued by the Hon'ble Apex Court and are liable to be set aside.

¶16Accordingly, the impugned charge sheet dated 03.12.2022 and cognizance order dated 13.03.2023, summoning order dated 13.03.2023 passed by learned Additional Chief Judicial Magistrate, Court No.1, District-Unnao in Criminal Case No.1472 of 2023 arising out of Case Crime No.0555 of 2022, under Section 294 I.P.C., Police Station-Bangarmau, District-Unnao (State vs. Rishabh Jaiswal and Others) pending in the court of learned Additional Chief Judicial Magistrate, Court No.1, District-Unnao is hereby set aside and reversed.

¶17For the reasons discussed above, the instant application under Section 482 Cr.P.C. is allowed in respect of the instant applicant, namely-Rishabh Jaiswal. Order Date :- 29.2.2024 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench