Bismillah Siddiqui and Another vs State of U.P. and Others

Surendra Kumar, J.—Heard learned counsel for the applicants and learned A.G.A.

The present petition u/s 482. Cr. P.C. was filed in this Court arraying the State of U. P., Sri Jiut Lal Nigam and the Chief Judicial Magistrate, Gorakhpur as opposite party Nos. 1, 2 and 3 respectively, with the prayer that the charge-sheet submitted in Criminal Case No. 8167 of 1993, arising out of Case Crime No. 226 of 1993, under Sections 392, 412, I.P.C., Police Station Barhalganj, district Gorakhpur against the applicants Bismillah Siddiqui and Arif Siddiqui be quashed. The facts briefly stated are that an F.I.R. was lodged on 14.5.1993 at 1.30 hours at the said police station by Jiut Lal Nigam stating that he was employed as salesman in the firm Jalan Synthetics Diwan Dayaram Geeta Press Road, Gorakhpur and he was on way to his place of residence from Barhalganj on a Suzuki motorcycle bearing No. 100-U. P. 5389. He had on 13.5.1993 gone to Barhalganj in connection with collection of money from certain persons, who were used to be given the material by firm on credit. When he reached a little ahead Madariya, 3-4 persons armed with country made pistols forcibly stopped his motorcycle by brandishing country made pistols, at about 10 O''clock in the night, took him to the nearby field and trussed him by a rope and then looted his bag containing the money and motorcycle and ran away from the place of occurrence with the looted bag and motorcycle, The miscreants were claimed to have been seen in the head light of the motorcycle.

The F.I.R. of the incident was lodged next day on 14.5.1993 at 1.30 hours against unknown miscreants u/s 392, I.P.C. The complicity of the applicants came to light during investigation for the first time on 20.5.1993 and consequently they were rounded up on 20.5.1993 and subjected to search by the police. As per the recovery memo dated 20.5.1993, a police team headed by S.S.I. Ramesh Chandra Mishra was in search of the criminals wanted in robbery. When on 20.5.1993 at about 10.30 a.m. the police on an information reached the road near Barhalganj, then at about 11.00 a.m., both the accused persons were arrested by the police. They confessed to have looted the motorcycle and a sum of ` 24,400 from the complainant. On the personal search, a sum of ` 4,045 from the accused Arif Siddiqui and ` 1.930 from the accused Bismillah Siddiqui and two wrist watches were recovered. The details of the currency notes are given in the recovery memo. The faces of the accused persons were covered as they might be required for test identification parade warning them not to show their faces to anyone. The recovery memo was prepared.

As per this petition, the applicants were detained by the police of police station Barhalganj on 14.5.1993 when they were proceeding on motorcycle from Ghosi. They were accosted by the police inside the police station. When the applicants were detained, then the brother of the accused Bismillah Siddiqui sent a telegram to the Senior Superintendent of Police, Gorakhpur on 17.5.1993 intimating him about illegal detention and also expressing apprehension of their being nominated in some false case. On the application of the accused persons moved in the court of Chief Judicial Magistrate, Gorakhpur, the police submitted report stating that both the accused persons were challaned in the said crime under Sections 392 and 411. I.P.C. as two goggles, one foreign wrist watch and ` 5,975 were recovered from them. The accused persons were subsequently granted bail by the Magisterial court on 21.5.1993. Thereafter, the accused persons claimed the return of the recovered items by way of moving application in the court and the court vide order dated 28.5.1993 directed for release of those items in favour of the accused persons. The detention of the applicants between 14.5.1993 to 20.5.1995 as per the petition, was illegal and inexplicable. As per the petition, the holding of test identification parade of the applicants was necessary but the same was not held. This has not only prejudiced the applicants but they were deprived of an opportunity on which hinged the very foundation of the prosecution case. It has further been averred in the petition that the statements of Yaqub and complainant Jiut Lal recorded during investigation would reveal that they had neither named the applicants nor claimed to have recognized them. The applicants are said to have been falsely implicated. However, they claimed to have seen the culprits and they could recognize them if presented before them. In view of the submission, the identification parade was imperative and the same having not been held, has resulted in denial of a significant opportunity to the applicants to purge themselves of the charges. It has also been averred in the petition that the applicants have been rounded up and booked in this case due to his hostility on communal lines. It is a case in which conviction of the applicants is a far cry and hence it would be sheer abuse of the process of the court, if the applicants are subjected to undergo the travails of the trial in the court of law as they had already suffered much ignominy on account of their nomination in this case and this Court can certainly redeem the applicants from further ignominy and infamy by quashing the charge-sheet.

Sri V. K. Srivastava, the then learned 1st Additional Chief Judicial Magistrate, Gorakhpur while passing the order on the application seeking release of the items recovered, moved by the accused persons, in his order dated 28.5.1993 observed that the applicants moved an application for release of wrist watch, goggles and cash. The police report was called from the concerned police station. According to the police report, both the accused persons were detained on 14.5.1993 and then one goggle and one wrist watch and ` 1,930 and 4,045 in cash from each of them were recovered. It was further observed by the learned Magistrate that since cash amount is the case property of the robbery, hence the cash amount could not be released in favour of the applicants. Since two goggles and two wrist watches were not the case property, hence they could be released in favour of the applicants and accordingly one goggle and one wrist watch were released in favour of each of the applicants.

It appears from the record that the Investigating Officer recorded the statements of the complainant Jiut Lal Nigam and Yaqub u/s 161, Cr. P.C. The complainant Jiut Lal Nigam in his statement supported the prosecution story as narrated by him in the F.I.R. saying that on 13.5.1993 at about 10.00 p.m. his motorcycle was stopped by 3-4 unknown miscreants who brandishing country made pistol, tied him and his companion Yaqub with a rope and taken to the nearby field and then ran away with motorcycle and bag containing cash of the complainant. This motorcycle and cash in the bag were of the firm. Both the public witnesses in their statements recorded u/s 161, Cr. P.C. claimed to have recognized the miscreants in the head light of the motorcycle and also claimed to have recognized, if they are presented before them. Both these persons have been shown in the list of prosecution witnesses in the charge-sheet submitted in the Court.

The main submission of the learned counsel for the applicants who are accused persons in the trial court, is that they were not named in the F.I.R. of the said robbery but their names came to light on the basis of recovery of cash from them on 20.5.1993 when they were arrested by the police and they confessed the said robbery. The next submission of the learned counsel for the applicants is that facial features of the miscreants were not mentioned by the complainant in the F.I.R. and If the cash amount was recovered from them, they could have been subjected to test identification parade but no such parade was held. Non-holding of test identification parade had deprived them of their important right.

Before proceeding to consider the submissions advanced by the learned counsel for the parties, it is necessary to cite relevant rulings on the scope of Section 482. Cr. P.C.

The Hon''ble Supreme Court In the case of Indian Oil Corporation v. N.E.P.C. India Ltd. and others, 2006 (2) CCSC 1009 (SC), has laid down the principles on quashing complaint or proceedings while exercising the powers u/s 482, Cr. P.C. These principles are as follows :

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the Courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power u/s 250. Cr. P.C. more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant.

In the case of Didigam Bikshapathi and another v. State of A. P., 2008 (1) CCSC 400 : 2008 (2) ACR 1425 (SC), the Hon''ble Supreme Court has laid down the some illustrative cases where inherent power u/s 482, Cr. P.C. can and should be exercised to quash the proceedings, which are as under :

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

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

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

The Hon''ble Supreme Court in Reshma Bano v. State of U. P. and others, 2008 (2) CCSC 829 : 2008 (2) ACR 1328 (SC), has laid down the illustrative cases in which F.I.R./complaint/criminal proceedings can be quashed in exercise of inherent powers u/s 482, Cr. P.C., which 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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers u/s 156 (1) of the Cr. P.C. except under an order of a Magistrate within the purview of Section 155 (2) of the Cr. P.C.

(3) Where the uncontroverted allegations made in the F.I.R. 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 F.I.R. 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 u/s 155 (2) of the Cr. P.C.

(5) Where the allegations made in the F.I.R. 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.

However, the power of-quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be Justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

The Hon''ble Supreme Court in Renu Kumari v. Sanjay Kumar and others, 2008 (2) CCSC 1089 : 2008 (2) ACR 2079 (SC), has observed that the scope of exercise of power u/s 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 Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, ; State of Haryana and others Vs. Ch. Bhajan Lal and others, . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by Hon''ble Supreme Court are the same seven categories as held in the case of Reshma Bano case.

The Hon''ble Supreme Court in the case of Central Bureau of Investigation v. K. M. Sharan, 2008 (2) CCSC 815 (SC), has also observed that the High Court was not justified in quashing F.I.R./Charge-sheet u/s 482, Cr. P.C. as the case does not fall under any of the categories formulated in the case of Bhajan Lal (supra) by the Hon''ble Supreme Court in setting aside the cognizable offence under Sections 193 and 120B, I.P.C. when it was abundantly clear from the allegations in the F.I.R. and charge-sheet and that ingredients of Sections 193 and 120B, I.P.C. were clearly made out justifying the registration of the case and investigation. According to Bhajan Lal case, the High Court would be justified in exercising its powers under Article 226 of the Constitution of India or Section 482, Cr. P.C. for quashing the criminal proceedings if the case falls in any one of the seven categories indicated by the Hon''ble Supreme Court in Bhajan Lal''s case, reiterated in Reshma Bano''s case.

The Hon''ble Supreme Court in Lakhwant Singh v. Jasbir Singh and others, 2008 (3) CCSC 1515 : 2008 (3) ACR 3177 (SC), has observed that while exercising Jurisdiction u/s 482, Cr. P.C. it is not permissible for the High Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. When the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on Annexures to the petitions u/s 482, Cr. P.C. which cannot be termed as evidence without being tested and proved.

In Maksud Saiyed v. State of Gujarat and others, 2007 (3) CCSC 1464 : 2008 (1) ACR 138 (SC), it was held that the jurisdiction of High Court to quash F.I.R. in exercise of its Jurisdiction u/s 482, Cr. P.C. is well known and the High Court may not enter into determination of disputed question of fact at that stage.

In Sanapareddy Maheedhar Seshagiri and another v. State of A. P. and another, 2008 (1) CCSC 506 : 2008 (1) ACR 691 (SC), the Apex Court has observed that the powers possessed by the High Court u/s 482, Cr. P.C. 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 being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire 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 magnitude and 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 proceeding at any stage. 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, Cr. P.C. 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 has to be read as a whole. It if appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint 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 proceedings.

The Hon''ble Apex Court in Arun Shanker Shukla v. State of U. P. and others, 1999 (39) ACC 423 : 1999 (2) ACR 1661 (SC), discussed the scope and limit of the inherent power of the High Court conferred u/s 482 of the Code and held that the High Court while exercising the inherent power as conferred u/s 482 of the Code may pass any order to prevent the abuse of process of law or otherwise to secure the ends of justice. But the "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. The inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object.

The Hon''ble Apex Court in K. Neelaveni Vs. State rep. by Insp. of Police and Others, , clearly observed that where the offences are triable by a Magistrate, First Class and are to be tried as warrant case, the procedure for trial of warrant case by a Magistrate instituted on a police report is provided under Chapter XIX Part A of the Code of Criminal Procedure. 1973. Section 239 Inter alia provides that if upon considering the police report and the document sent with it u/s 173. Cr. P.C. and making such examination, if any, of the accused and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It seems that the accused persons even before the case had reached that stage filed an application for quashing of the charge-sheet under Sections 406 and 494 of the Indian Penal Code. The High Court ought not to have interfered after the submission of the charge-sheet and even before the Magistrate examining as to whether the accused persons deserved to be discharged in terms of Section 239 of the Code of Criminal Procedure.

The Hon''ble Apex Court further observed that there is yet another reason which the High Court ought to have considered before quashing the charge-sheet under Sections 406 and 494 of the Indian Penal Code. All the offences are triable by Magistrate and quashing of the charge-sheet under Sections 406 and 494 of the Indian Penal Code had not resulted into exonerating the accused persons from facing the trial itself. Matter would have been different had the offences under Sections 406 and 494 of the Indian Penal Code been triable as sessions case. In the matter like this the High Court ought to have allowed the provisions of the Code of Criminal Procedure referred to above its fully play.

Now, I come to the point as to whether the said charge-sheet filed in Case Crime No. 226 of 1993 under Sections 392 and 412, I.P.C., Police Station Barhalganj, district Gorakhpur, against the applicants in the court of the Chief Judicial Magistrate, Gorakhpur, can be quashed by exercising inherent powers u/s 482, Cr. P.C. The said incident of robbery took place on 13.5.1993 around 10 O''clock in the night when the first informant/complainant Jiut Lal Nigam was going to his residence on his motorcycle carrying a bag which contained cash and he was robbed of his motorcycle and bag containing cash.

The first information report of the incident was lodged within three and half hours against the unknown robbers. After a week, i.e., 20.5.1993 around 10 : 30 a.m. some amount of robbery was recovered from the accused persons who are applicants herein. Thus, the recovery of some cash amount was made within a week of the said robbery from the applicants.

The contentions raised by learned counsel for the applicants that non holding of test identification parade of the applicants had deprived them of an opportunity to show their innocence and false recovery of cash amount was planted against the applicants, as is evident from the telegram sent on 14.5.1993 by family member of one of the applicants, are unworthy of acceptance at this stage as these pleas are open to the applicants in the trial court at the time of final arguments after recording evidence of the parties. Since after submission of the impugned charge-sheet, the charges against the accused persons, applicants herein, have not been framed by the trial court, they will have an opportunity before the trial court to raise these pleas at the time of hearing of the charge. If upon considering the police report and other documents sent with it u/s 173, Cr. P.C. and making examination of the accused persons and after giving the prosecution and the'' accused an opportunity of being heard, the Magistrate considers the charge against the accused persons to be groundless, the Magistrate shall discharge the accused persons and record his reasons for so doing. If upon such consideration and hearing, the Magistrate is of the opinion that there is ground for presuming that the accused persons had committed the said offence, he shall frame in writing a charge against the accused persons. Thus, the accused persons have at present an opportunity of hearing at the time of hearing of the charge and again at the stage of recording evidence of the prosecution witnesses by way of cross-examining them to establish their innocence.

All these points are factual in nature and appreciation of the facts can legally be made after recording evidence of the prosecution witnesses and that of led by the applicants. This Court cannot adjudicate upon the matter which is factual in nature at this stage and reappraise the evidence in exercise of powers u/s 482. Cr. P.C. It would not be appropriate in embarking upon an inquiry and otherwise regarding statements made by witnesses before the Investigating Officer u/s 161, Cr. P.C. The prosecution witnesses are to depose before the trial court and then the applicants as the accused, persons will have sufficient opportunity to cross-examine the prosecution witnesses on these facts and only thereafter the trial court will be in a position to test the veracity and genuineness of the case.

I have subjected the facts and material available on record in this case to the test as laid down by Hon''ble Supreme Court in the aforesaid decisions in this regard. The case at hand, is not covered in any one of the seven illustrative cases set forth by Hon''ble Supreme Court.

I am not inclined to quash the charge-sheet submitted by the police in Criminal Case No. 8167 of 1993 arising out of Case Crime No. 226 of 1993, under Sections 392 and 412. I.P.C. Police Station Barhalganj, district Gorakhpur, in exercise of inherent power u/s 482, Cr. P.C. The instant application u/s 482. Cr. P.C. being bereft of merits, is dismissed. Since the occurrence is of the year 1993, therefore, it would be appropriate and in the interest of justice to direct the trial court to expedite and conclude the trial expeditiously, preferably within a period of six months from the date a certified copy of this order is produced before it, without granting undue adjournment to the either parties unless and until compelling circumstances exist to do so that too only after recording reasons in writing. The accused-applicants herein are directed to co-operate with the expeditious disposal of the case.