Mrs. Manju Rani Chauhan, J.

1. The applicant has preferred this application under Section 482 Cr.P.C. challenging the proceedings of Session Case No. 538 of 2022 (Complaint No. 50/2022) State v. Aakash Singh, under Section 354 IPC and Section 7/8 Protection of Children from Sexual Offences Act, 2012 POCSO, Police Station Tarkulawa, District Deoria, as well as summoning order dated 01.11.2022 passed by the Additional Sessions Judge/ Special Judge, POCSO, Court No. 1, Deoria passed in the aforesaid case, pending in the Court of Special Judge (POCSO Act), Court No. 1, Deoria.

2. Brief facts of the case are that an application under Section 156(3) Cr.P.C. was moved by opposite party no. 2 against the applicant - Akash Singh S/o Sri Ganesh Singh, Ritesh Singh S/o Arvind Singh, Balmiki S/o Pawhari and Krishna Singh cousin of Akash on 10.02.2022 with the allegation that all the aforesaid persons teased 15 year old daughter of opposite party no. 2, who is student Class-VIII while she went and returned from School. They pass unparliamentary remarks, try to intercept her and click photographs of her by their mobiles. It has further been alleged that on 13.01.2022 at about 06:00 a.m. when the daughter of opposite party no. 2 was sleeping in verandah, Akash Singh entered the house and started doing objectionable acts with her. He also tried to outrage her modesty. On hearing the screams of the victim, the opposite party no. 2 Mohan Sharma along with his wife Urmila Devi ran to the place, on seeing them approaching, Akash while using abusive language ran away from there. He also threatened and blackmailed the victim of making photographs and video of her viral. It has also been alleged that the victim was in a state of shock. The aforesaid application has been treated as a complaint case by order dated 04.04.2022 and after recording statements under Sections 200 and 202 Cr.P.C., the applicant has been summoned.

3. Learned counsel for the applicant submits that the present case has been instituted maliciously with an ulterior motive of wrecking vengeance due to earlier dispute between the parties. Laying emphasis on an order dated 04.04.2022 by which an application under Section 156(3) Cr.P.C. has been treated as complaint case, he submits that a police report was called from the police station, according to which house of the applicant is in the vicinity of opposite party no. 2. The nephew of opposite party no. 2, namely, Rishi Sharma had enticed away daughter of Ganesh Singh (sister of the applicant). When she returned back, a compromise was entered between the parties on 07.03.2021. The opposite party no. 2 was also a witness to the aforesaid compromise. On 10.06.2021, an incident took place wherein there was a fight between the family of opposite party no. 2 and the applicant, for which an information was given by Palkiya Sharma (relating to family of opposite party no. 2), for which a first information report was lodged on 29.01.2022 which was registered as Case Crime No. 36 of 2022, under Sections 147, 148, 323, 308, 427, 452, 504, 506 IPC. The investigation regarding the aforesaid incident was being done by the police personnel. Ganesh Singh (father of of the applicant) had lodged an NCR No. 51 of 2021, under Sections 323, 504, 506 IPC against the opposite party no. 2 and four others. It has also been stated in the police report that both parties have moved applications for lodging cases against each other after exaggerating the incident, if any. Regarding the incident dated 31.01.2022 it has been stated in the police report that prima facie no such incident had happened and no case for the aforesaid incident has also been lodged.

4. The records of Case Crime No. 36 of 2022 as well as NCR No. 51 of 2021 were before the court concerned who had passed the order dated 04.04.2022. The discussion of the NCR also finds place in the aforesaid order, wherein NCR No. 51 of 2021 was lodged by father of the applicant against Mohan Sharma and his wife, due to old enmity regarding the incident dated 21.10.2021 in which a fight took place and abusive language was used and the family members and father of the applicant were beaten. For the present incident of 31.01.2022 which happened at 06:00 a.m., as alleged, an application has been moved by opposite party no. 2 under Section 156(3) Cr.P.C., however, nothing regarding earlier incident or cases lodged against each other has been mentioned. The concerned court has also observed that the application has been moved by opposite party no. 2 concealing the aforesaid facts, hence has not approached the concerned court with clean hands.

5. The record relating to earlier incident, compromise and police report has also not been filed along with aforesaid application filed by opposite party no. 2. Exaggerated version of the incident dated 31.01.2022 has been placed. Finding the matter to be non-cognizable, the order dated 04.04.2022 was passed. The Court has passed the order dated 04.04.2022 treating the said as complaint case.

6. Laying emphasis on the order dated 04.04.2022, vide which application under Section 156(3) Cr.P.C. has been treated as complaint case, learned counsel for the applicant submits that variations regarding earlier enmity as in the statement under Section 200 Cr.P.C., opposite party no. 2 has stated that there is no enmity between the parties whereas details of earlier incident, compromise between the two for the same, the NCR and other cases have been mentioned. Thus, the aforesaid case goes to show that the present case has been lodged with malafide intention. He further submits that the Court while passing the aforesaid order has also observed that facts regarding the real story have been concealed and the opposite party no.2 has not approached the Court with clean hands thereby showing the conduct of the aforesaid opposite party no.2 who has lodged the present case for the purposes of harassment and in order to wreak vengeance for the incident, wherein sister of the applicant was enticed away by nephew of opposite party no. 2, hence to exert pressure and as a counterblast, present case has been lodged along with few other cases as detailed in the order dated 04.04.2022.

7. From the statements of the victim recorded under Section 202 Cr.P.C., it is clear that though allegations regarding making of video and taking photographs is there, but she herself has not seen any such photographs and video speaks volumes about the intention of the opposite party no. 2 who has initiated malicious proceedings by moving an application under Section 156(3) Cr.P.C. concealing earlier enmity, hence, opposite party no.2 has not approached the concerned court with clean hands as observed by order dated 04.04.2022. She has also denied any fight between her family and family of opposite party no. 2 which also show the variation from the real situation.

8. The applicant has been summoned while noticing the fact that the present case is a case of false and malicious prosecution, therefore, relying upon the judgements of the Supreme Court in the cases of State of Haryana and others v. Bhajan Lal and others AIR 1992 SC 604; R.P. Kapur v. State of Punjab AIR 1960 SC 866 and, Eicher Tractors Ltd. v. Harihar Singh (2008) 16 SCC 763, learned counsel for the applicant submits that proceedings may be quashed as the same have been initiated with malafide intention to exert pressure upon the applicant and wreak vengeance.

9. Learned counsel for the opposite party no. 2, on the other hand, submits that from the version of the application moved under Section 156(3) Cr.P.C., which has been treated as a complaint case, same being supported by the statements recorded under Sections 200 and 202 Cr.P.C., prima facie offence is made out, therefore, no interference is required by the Court to grant any relief as prayed.

10. I have heard Sri Mata Pher Tiwari, learned counsel for the applicant, Sri Amit Singh Chauhan, learned A.G.A. for the State, and Sri R.S. Dubey and Smt. Savita Dubey, learned counsel for opposite party no. 2.

11. Before proceeding on the merits of the case, it would be appropriate to understand the meaning of malicious prosecution as defined by the Supreme Court in the case of West Bengal State Electricity Board v. Dilip Kumar Ray AIR 2007 SC 976. Relevant part of the said judgement reads thus:

“14. ... ... ...

MALICIOUS. Done with malice or an evil design; wilful; indulging in malice, harboring ill-will, or enmity malevolent, malignant in heart; committed wantonly, wilfully, or without cause, or done not only wilfully and intentionally, but out of cruelty, hostility of revenge; done in wilful neglect of a known obligation.

"MALICIOUS" means with a fixed hate, or done with evil intention or motive; not the result of sudden passion.

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Malicious abuse of legal process. A malicious abuse of legal process consists in the malicious misuse or misapplication of process to accomplish a purpose not warranted or commanded by order of Court - the malicious perversion of a regularly issued process, whereby an improper result is secured.

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Malicious Prosecution – Malice. Malice means an improper or indirect motive other than a desire to vindicate public justice or a private right. It need not necessarily be a feeling of enmity, spite or illwill. It may be due to a desire to obtain a collateral advantage. The principles to be borne in mind in the case of actions for malicious prosecutions are these: Malice is not merely the doing a wrongful act intentionally but it must be established that the defendant was actuated by mains animus, that is to say, by spite of ill- will or any indirect or improper motive. But if the defendant hod reasonable or probable cause of launching the criminal prosecution no amount of malice will make him liable for damages. Reasonable and probable cause must be such as would operate on the mind of a discreet and reasonable man; 'malice' and 'want of reasonable and probable cause' have reference to the state of the defendant's mind at the date of the initiation of criminal proceedings and the onus rests on the plaintiff to prove them.

OTHER DEFINITIONS OF "MALICIOUS PROSECUTION".

"A judicial proceeding instituted by one person against another, from wrongful or improper motive and without probable cause to sustain it."

"A prosecution begun in malice, without probable cause to believe that it can succeed and which finally ends in failure."

"A prosecution instituted wilfully and purposely, to gain some advantage to the prosecutor or thorough mere wantonness or carelessness, if it be at the same time wrong and unlawful within the knowledge of the actor, and without probable cause."

"A prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or is bound to know are wrong and against the dictates of public policy."

The term "malicious prosecution" imports a causeless as well as an ill-intended prosecution.

'MALICIOUS PROSECUTION" is a prosecution on some charge of crime which is wilful, wanton, or reckless, or against the prosecutor's sense of duty and right, or for ends he knows or its bound to know are wrong and against the dictates of public policy.

In malicious prosecution there are two essential elements, namely, that no probable cause existed for instituting the prosecution or suit complained of, and that such prosecution or suit terminated in some way favorably to the defendant therein.

1. The institution of a criminal or civil proceeding for an improper purpose and without probable cause. 2. The cause of action resulting from the institution of such a proceeding. Once a wrongful prosecution has ended in the defendant's favor, lie or she may sue for tort damages - Also termed (in the context of civil proceedings) malicious use of process. (Black, 7th Edn., 1999).

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12. In the facts of the present case wherein observation in this regard has been made by the concerned court while passing order dated 04.04.2022 that the opposite party no. 2 has not disclosed about earlier enmity between the parties and hence has not approached the Court with clean hands, itself goes to show that the proceedings have been initiated with malicious intention in order to harass the applicant. A detail discussion of the earlier proceedings between the parties and the variations in the statements has been recorded under Sections 200 and 202 Cr.P.C., as discussed above, the submissions of learned counsel for the applicant, also goes to prove that the proceedings have been instituted with an ulterior motive for wreaking vengeance on the accused with a view to spite him due to personal grudge for an earlier incident, wherein the nephew of opposite party no. 2, namely, Rishi Sharma had enticed away daughter of Ganesh Singh and though the parties had entered into compromise but cases were lodged by both parties against each other in order to harass the applicant. The discussion of the police reports in the order dated 04.04.2022 also speaks about exaggeration of the incident while moving applications against each other.

13. It is no more res integra that power under Section 482 CrPC to quash a criminal proceeding is exercised only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence(s) alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any law or Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is clear from the law laid down by the Apex Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.

14. The Apex Court in Bhajan Lal (supra) has enumerated seven categories of the cases where power under Section 482 Cr.P.C. can be exercised by this Court, which are quoted below:-

"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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."

15. The principles laid down by the Apex Court in the aforesaid case, have consistently been followed in the recent judgement of ThreeJudge Bench of the Apex Court in the case of Neeharika Infrastructure (P) Ltd. vs. State of Maharashtra 2021 SCC OnLine 315, wherein it has been held that there is no denial of the fact that power under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, when the High Court deems it fit, it may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

16. It is trite law that the power of quashing criminal proceedings should be exercised with circumspection and that too, in the rarest of rare cases and it was not justified for this Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the Final Report or the Complaint. A finding on the veracity of a material relied on by the prosecution in a case where the allegations levelled by the prosecution disclose a cognizable offence, is not a consideration for the High Court while exercising its power under Section 482 Cr.P.C. This view is fortified by the decision of the Apex Court in Mahendra K.C. v. State of Karnataka and Ors. AIR 2021 SC 5711.

17. Recently, the Apex Court in the case of Shafiya Khan alias Shakuntala Prajapati vs. State of Uttar Pradesh and another (2022) 4 SCC 549, has observed as under;-

"16. It is no doubt true that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies."

18. The Apex Court in the case of Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur and others Vs. State of Gujarat and another (2017) 9 SCC 641, referring to various cases has summarized following principles to govern powers of High Court under Section 482 Cr.P.C.:

"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:

16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.

16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.

16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court.

16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.

16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.

16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned;

16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.

16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and

16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

19. In another judgment, the Apex Court in the case of Ramveer Upadhyay and Another Vs. State of U.P. and Another 2022 SCC OnLine 484, has held as under:-

“39. In our considered opinion criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Attrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Complaint Case No.19/2018 is not such a case which should be quashed at the inception itself without further Trial. The High Court rightly dismissed the application under Section 482 of the Cr.P.C."

20. From the above discussion, it is clear that the opposite party no. 2 had approached the Court in order to wreak vengeance and exert pressure upon the applicant for earlier enmity which has been mentioned in the order dated 04.04.2022 and the same could not be disputed by learned counsel for the opposite party. Thus, the present case falls under the Category (7) of Paragraph-108 as spelt by the Supreme Court in Bhajan Lal (supra).

21. In view of the above, proceedings of Session Case No. 538 of 2022 (Complaint No. 50/2022) State v. Aakash Singh, under Section 354 IPC and Section 7/8 Protection of Children from Sexual Offences Act, 2012 POCSO, Police Station Tarkulawa, District Deoria, as well as summoning order dated 01.11.2022 passed by the Additional Sessions Judge/ Special Judge, POCSO, Court No. 1, Deoria passed in the aforesaid case, pending in the Court of Special Judge (POCSO Act), Court No. 1, Deoria, are quashed.

22. The application stands allowed.