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2013 DIGILAW 610 (UTT)

Alok Kumar Gupta v. State of Uttarakhand

2013-09-27

U.C.DHYANI

body2013
JUDGMENT : U. C. Dhyani, J. 1. The applicant, by means of present Application under Section 482 Cr. P.C., seeks to quash the summoning order dated 04.02.2010 passed by 4th Additional Civil Judge (J.D.) / Judicial Magistrate, Haridwar in Criminal Case No.220 of 2009 titled as Dayanand vs. Zakir & others under Sections 500 & 211 IPC. The applicant also seeks to quash the proceedings of the aforementioned criminal case pending before the said court. 2. Respondent no.2/Dayanand Sharma filed a criminal complaint case against 5 accused persons, including the present applicant for the offences punishable under Sections 500, 191, 193, 120-B IPC in the court of Judicial Magistrate 1st, Haridwar. Respondent no.2 entered into the witness-box under Section 200 Cr. P.C. Laal Deen CW1 and Bharat Singh CW2 were examined under Section 202 Cr. P.C. After considering the statements under Sections 200 & 202 Cr. P.C., 5 accused persons, including the applicant were summoned to face the trial for the offences punishable under Sections 500 & 211 I.P.C., vide order dated 04.02.2010. Aggrieved against the same, present application under Section 482 Cr. P.C. was moved only on behalf of one accused, i.e., Alok Kumar Gupta (applicant). 3. Learned counsel for the respondent no.2 submitted that upon filing of an FIR by Zakir (accused no.1 in the complaint) against respondent no.2 (Dayanand Sharma) and 5 others, a charge-sheet was submitted. Respondent no.2 and five others faced the trial for the offences punishable under Sections 147, 148, 149, 323, 324, 504, 506 IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. They were, however, exonerated of the charges leveled against them vide judgment and order dated 21.02.2009 passed by the 3rd F.T.C./Additional Sessions Judge, Haridwar in Sessions Trial No.375/2005. It is the contention of the learned counsel for respondent no.2 that accused-applicant (Alok Kumar Gupta) gave false evidence against respondent no.2 and others. The prosecution evidence was not believed by the learned Additional Sessions Judge, Haridwar and, therefore, he acquitted respondent no.2 and others. It is also the contention of learned counsel for respondent no.2 that his reputation was tarnished in the estimation of public and, therefore, the present applicant alongwith others were rightly summoned by the Judicial Magistrate to face the trial for the offence punishable under Section 500 IPC. 4. It is also the contention of learned counsel for respondent no.2 that his reputation was tarnished in the estimation of public and, therefore, the present applicant alongwith others were rightly summoned by the Judicial Magistrate to face the trial for the offence punishable under Section 500 IPC. 4. Learned counsel for the applicant, on the other hand submitted that the applicant (Alok Kumar Gupta) was only a prosecution witness in the aforementioned sessions trial against respondent no.2 and others. Learned trial court did not say anything against the evidence or the conduct of Alok Kumar Gupta, who was examined as PW5 in the sessions trial. Learned trial court did not indict the applicant for his testimony or said anything adverse against his conduct or cast aspersions on his performance. The trial court simply found that the prosecution could not prove the case against Dayanand Sharma and others and, therefore, acquitted them. No offence under Section 500 IPC was made against the accused-applicant. Learned Judicial Magistrate ought not to have summoned the present applicant under Section 211 IPC in view of the embargo created by Section 195 (1)(b)(i) Cr. P.C. 5. This Court is in agreement with the contention of learned counsel for the applicant that no court could take cognizance of any offence punishable under Section 211 IPC, except on the complaint in writing of that court itself. Summoning of the present accused-applicant under Section 211 IPC is, therefore, bad in the eye of law. 6. Summoning of the accused-applicant to face the trial for the offence punishable under Section 500 IPC is also not sustainable, in as much as, the accused-applicant merely entered into the witness-box as PW5 to say something regarding prosecution story in a criminal trial, which proceeded against respondent no.2 and five others. He only gave his evidence. Other witnesses also gave evidence. Learned trial court did not believe the prosecution story and acquitted respondent no.2 and others of the charges leveled against them. Nothing adverse was said against the evidence or the conduct of PW5 (i.e. present applicant). Learned trial court did not say that PW5 tendered false evidence against respondent no.2 and others with a view to harm their reputation. Everyday the evidence is recorded in number of criminal cases. Number of witnesses come and depose before the court. The evidence of all the witnesses is not believed. Learned trial court did not say that PW5 tendered false evidence against respondent no.2 and others with a view to harm their reputation. Everyday the evidence is recorded in number of criminal cases. Number of witnesses come and depose before the court. The evidence of all the witnesses is not believed. Whereas some are believed, the others are not. The criminal cases are not always filed against those witnesses whose evidence is not relied upon by the courts, for, the same will otherwise open pandora’s box of unending litigation. Action is initiated only against those who knowingly tell a lie and against whom the courts cast aspersions. The trial court, in the instant case, did not observe that the applicant made imputation / accusation against respondent no.2 and others sans in good faith. The trial court himself did not file any complaint against the accused-applicant. In such view of the matter, the statement of respondent no.2 that the applicant defamed him should be taken with a pinch of salt. This Court is, therefore, of the opinion that offence under Section 499 IPC (punishable under Section 500 IPC) is not made out against the present applicant. It is made clear at this stage that this Court is not considering the case of other accused persons and is considering only the case of accused-applicant in this application under Section 482 Cr. P.C. Any comment offered by this Court should not, therefore, be construed to mean that no offence under Section 500 IPC is made against other accused persons (non-applicants). 7. The ruling of Hon’ble Apex Court in M. A. Rumugam vs Kittu alias Krishnamoorthy (2009) 1 SCC (Cri) 245 is placed by learned counsel for the respondent no.2. The said ruling is distinguishable in the context of the facts of the present case. In Rumugam’s case (supra), the Hon’ble Apex Court held that since a prima facie case was made against the appellant under Section 500 IPC, therefore, the appellant was not entitled to any relief under Section 482 Cr. P.C. In the instant case, since no prima facie offence punishable under Section 500 IPC is made out against the present applicant, therefore, the applicant is entitled to get the relief under Section 482 Cr. P.C. 8. The Hon’ble Apex Court has provided the guidelines as regards the exercise of jurisdiction under Section 482 Cr. P.C. In the instant case, since no prima facie offence punishable under Section 500 IPC is made out against the present applicant, therefore, the applicant is entitled to get the relief under Section 482 Cr. P.C. 8. The Hon’ble Apex Court has provided the guidelines as regards the exercise of jurisdiction under Section 482 Cr. P.C. in the pronouncement of Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 , wherein the Hon’ble Apex Court has desired the High Courts to follow the following steps while dealing with applications under Section 482 of Cr. P.C. The same reads as under: • Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? • Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges leveled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? • Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? • Step four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 9. The Hon’ble Supreme Court has provided guideline that if the reply to the aforesaid four steps is in the affirmative, then only proceedings under Section 482 of Cr. P.C. should be allowed. In the instant case, the reply to the aforesaid questions is in the affirmative in respect of present applicant. 10. The Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr. P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. Since in the instant case, the allegation made against the applicant does not constitute an offence, and therefore, it is a fit case in which this Court should intervene in exercise of its’ inherent jurisdiction. 11. In view of above, application under Section 482 Cr. P.C. filed on behalf of applicant (Alok Kumar Gupta) is, therefore, allowed and the summoning order dated 04.02.2010 and the proceedings of Criminal Case No.220 of 2009 titled as Dayanand vs. Zakir and others under Sections 500 & 211 IPC pending in the court of 4th Additional Civil Judge (J.D.) / Judicial Magistrate, Haridwar are hereby quashed qua applicant.