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2010 DIGILAW 320 (ALL)

Shoaib and others v. State of U. P. and another

2010-01-25

RAJESH CHANDRA

body2010
Rajesh Chandra J.; - This application has been moved under Section 482 Cr.PC. for quashing the proceedings of complaint case no.1241/09. Tej Bajadur Sharma Vs. Shoaib & Others, under Sections 323, 452.504.506, 379 IPC. PS Chilua Tall, District Gorakhpur pending in the court of Judicial Magistrate III, Gorakhpur. As an interim measure, it has been prayed that the proceedings of the aforesaid case may be stayed till the pendency of the present application. I have heard the learned counsel for the applicants as well as the learned A.G.A. and also perused the papers as have been filed with the application. Learned counsel for the applicants argued that a false complaint has been filed against the applicants just to harass them and in fact no such incident had taken place as has been alleged by the opposite party no. 2. 2. It has further been argued that the applicant no.2 Smt.Alimun Nisha had filed a complaint case against opposite party no.2 and three others on 10.4.09 for the offences under Sections 452, 504, 506, 323, 314IPC in which the accused were summoned by the court on 12.5.09. As a counter blast to this complaint, opposite party no.2 Tej Bahadur submitted a false complaint in the court of J.M.IIIrd, Gorakhpur in which the accused applicants have been summoned for the offences under Sections 323, 452, 504, 506, 379 IPC. The contention of the learned counsel for the applicants is that since the present case has been filed as a counter blast, the proceedings are liable to be quashed. Learned A.G.A. on the other hand argued that the order summoning the accused-applicants has been passed by the Magistrate on the basis of evidence recorded under Section 200, 202 Cr.PC. & there is nothing illegal in it. I considered over the respective arguments. It is a settled legal position that at the stage of passing order under Sections 203 or 204 Cr.P.C, only a prima case has to be seen and not whether the evidence as adduced will result in conviction of the accused persons. 3. In the case of Nirmaljit Singh Hoon Vs. State of West Bengal and another, 1973 (10) ACC 181 (SC) while considering the scheme of sections 200, 203 Cr.PC., it has been held by the Hon'ble Apex Court that Section 203 Cr.PC. 3. In the case of Nirmaljit Singh Hoon Vs. State of West Bengal and another, 1973 (10) ACC 181 (SC) while considering the scheme of sections 200, 203 Cr.PC., it has been held by the Hon'ble Apex Court that Section 203 Cr.PC. does not say that a regular trial for adjudging the truth or otherwise of the accusations made against the accused should take place at that stage. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials, there is in his judgment no sufficient ground for proceeding, he may dismiss the complaint. 4. In the case of Chandra Deo Singh Vs. Prakash Chandra Bose, 1964 (1) SCR 639 the Hon'ble Apex Court held that at the stage of enquiry under Section 202 Cr.P.C., the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. Again in the case of Smt. Nagwwa V. Veeranna Shivalingappa Konjalgi and other, 1976 (1) ACC 225 (S.C.) while considering the scope of enquiry under Section 202 Cr.P.C., the Hon'ble Apex court has held that it is extremely limited only to the ascertainment of truth or falsehood of the allegations made in the complaint (a) on the basis of the materials placed by the complainant before the Court; (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (c) for deciding the question purely from the point of view of complainant without at all adverting to any defence that the accused may have. In that case, it has been held by way of illustration that the order of Magistrate issuing process can be quashed where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value made out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against accused. 5. In the case of S.W. Palanitkar and others, Vs. State of Bihar and another, 2002 (44) ACC 168 (S.C.) the Hon'ble Apex Court has held that at the stage of passing order under Section 203 Cr.PC. searching sufficient ground to convict is not necessary. 5. In the case of S.W. Palanitkar and others, Vs. State of Bihar and another, 2002 (44) ACC 168 (S.C.) the Hon'ble Apex Court has held that at the stage of passing order under Section 203 Cr.PC. searching sufficient ground to convict is not necessary. The Hon'ble Apex Court has considered the matter of exercising inherent power for quashing the F.I.R. or complaint in State of A.P. Vs. Bajjoori Kanthaiah and another AIR 2009 S.C. 671 . The following observations made in para 7 of the report at page 673 are worth mentioning:- " When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the Trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death." 6. The following observations made by the Hon'ble Apex Court in State of A.P.V Bajjoori Kanthaiah( supra) in para 8 are also worth mentioning:- " 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 sustained 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 proceedings instituted on complaint, exercise of the inherent power 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 power under Section 482 of the Code. 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 power under Section 482 of the Code. 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/FIR has to be read as a whole, if it appears that on consideration of the allegations in the light of statement made on oath of the complainant or disclosed in the FIR that ingredients of offence or offences are disclosed and there is no material to show that the complaint/FIR 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 persons. The allegation of mala fides against the informant are of no consequence and cannot by itself be the basis of quashing the proceeding." 7. In the present case the Magistrate after going though the evidence recorded under Sections 200 and 202 Cr.P.C. has concluded that prima facie are made out against the applicants and as such the applicant has been summoned as accused. A perusal of the aforesaid statements reveals that the accused applicants have prime facie committed the offences and in these circumstances it cannot be held that the Magistrate has committed any illegality or impropriety in passing the impugned order. In view of the above, there is no reason to interfere with the progress of the proceedings. Application under Section 482 Cr.P.C. is therefore dismissed. If however, the applicants surrender before the court concerned within three weeks from today, their bail application shall be disposed of in the light of the judgement passed by 7 Judges Bench of this Court in Amarawati and another Vs. State of U.P., 2005 Cr.L.J.755 as approved by the Apex Court in Lal Kamlelndra Pratap Singh Vs. State of U.P. in Criminal Appeal No.538 of 2009 Supreme Court dated 23.3.2009.