Rejecting the prayer for discharge of the appellants, who are husband and wife, respectively, has been upheld. (Para 2)
In brief, the allegations are that the Complainant/Respondent No.2 (hereinafter referred to as “R2”) was a tenant of a shop situated in the house of one Hari Narayan Shukla. On 29.06.2011, the appellants, along with others, locked the door of R2’s shop from inside, broke the wall and looted wheat (APL), sale money, about INR 21,000 worth of kerosene oil, goods in stock, all the registers of the shop, documents and a two-wheeler bearing Registration Number UP32BX2356 which led to R2 filing of the Hazratganj P.S. Case No.341 of 2011 dated 01.07.2011 (hereinafter referred to as the “FIR”) under Sections 448, 454 and 380 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”). (Para 3)
The learned counsel for the appellants submitted that FIR itself would show that the allegation(s) is/are frivolous in nature and levelled with a view only to frustrate the appellants from enjoying their property, as admittedly, Appellant No.2 (hereinafter referred to as “A2”) is the owner of the shop referred to supra, being the bona fide purchaser through a registered Sale Deed. (Para 4)
Learned counsel pointed out that innocence of the appellants would be further established by the fact that despite the initial FIR having been 9 registered under Sections 448, 454 and 380, IPC, the police did not find any case under Sections 454 and 380, IPC, to which R2 neither objected nor filed any protest. Thus, it was contended that the acceptance of the fact that there was no lurking house-trespass or housebreaking in order to commit offence punishable with imprisonment (Section 454, IPC) and no theft in dwelling house, etc. (Section 380, IPC) also make it amply clear that R2 was never in possession of the property in question and his entire case falls flat. (Para 11)
Having examined the matter in detail, a case for interference has been made out. The fact is that the Indian National Rupee symbol i.e., Rs. was not in existence during the time the purported ‘Memorandum’ was signed. Furthermore, R2 has based his entire claim of tenancy on a document which has been, prima facie, found to be forged and fabricated, for which the Court concerned has directed lodging of a criminal case. There is no other claim by R2 to show that he was in possession. When coupled with the fact that the police did not find any offences having been made out against the appellants under Sections 454 and 380, IPC, the case against the appellants under Section 448, IPC finds itself on shaky ground. R2 never objected to the above nor took any further steps. R2, as noted above, has not entered appearance before this Court. Thus, the case against the appellants finds itself on shakier ground. We are of the firm view that A2 being the undisputed landlord, the criminal case filed by R2, in the facts and circumstances supra, amounts to clear abuse of the process of the Court. Moreover, we find that the Impugned Judgment and the judgment dated 02.06.2017 of the Chief Judicial Magistrate, Lucknow are unreasoned as to why discharge is to be denied. Thus far on facts and merits. Now, on the law. (Para 14)
The extent of scrutiny permissible when an application for discharge is being considered has attracted this Court’s attention on a number of occasions. It is appropriate to take note of the leading precedents on the subject. Insofar as Section 245, CrPC is concerned, the decision of this Court in Ajoy Kumar Ghose v State of Jharkhand, (2009) 14 SCC 115 is instructive (Para 16)
The protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/Complaint or by allowing an appeal against an order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts. The High Court should have intervened and discharged the appellants. But this Court will intervene, being the sentinel on the qui vive. (Para 23)
SUPREME COURT OF INDIA
2023 STPL(Web) 449 SC
Vishnu Kumar Shukla & Anr. Vs. State Of Uttar Pradesh & Anr.
Criminal Appeal No. 3618 of 2023 [@ Special Leave Petition (Crl.) NO.8658 of 2017]-Decided on 28-11-2023
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