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2013 DIGILAW 717 (UTT)

Lt. Colonel Viru Pakshaiah v. Khayali Ram Arya

2013-11-12

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. The applicant, by means of present application / petition under Section 482 of Cr. P.C., seeks to quash the entire proceedings of criminal case no. 64 of 2009, Khayali Ram vs Viru Pakshaiah, under Sections 323, 504, 506 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as also the summoning order dated 05.02.2010, pending before the court of Judicial Magistrate, Ranikhet. 2) Complainant (respondent no. 1 herein) filed a criminal complaint case against the accused (applicant herein) in the court of Judicial Magistrate, Ranikhet. After recording the statements under Sections 200 and 202 of Cr. P.C. and having found a prima facie case against the accused-applicant, he was summoned to face the trial for the offences punishable under Sections 323, 504, 506 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Aggrieved against the said order dated 05.02.2010, passed by learned Judicial Magistrate, Ranikhet, present application under Section 482 of Cr. P.C. was filed. 3) No counter affidavit was filed either on behalf of private respondent or on behalf of the State, despite having granted them opportunities to do so. The averments contained in the affidavit of the applicant, therefore, remained uncontroverted. 4) As per the compliant, the complainant was working as Class IV employee in A.S.C. Supply Depot, Ranikhet. The accused (applicant herein) was Officer Commanding of said Depot. Whereas the complainant belonged to the Scheduled Caste community, accused-applicant was not a member of Scheduled Caste or Scheduled Tribe community. Allegedly, on 25.10.2008, at 12:45 A.M., the complainant was deputed in the Main Post in the Supply Depot. Accused came there in civil uniform, hurled abuses at the complainant and slapped him on his face. Accused also assaulted the complainant with kicks and fists. Accused also used casteist remarks and threatened the complainant with dire consequences. Balwant Singh and Durga Dutt Paliwal witnessed the incident. The complainant got his injuries examined at civil hospital, Ranikhet. He also sent the application to Superintendent of Police, Almora, but since the police did not take any action, therefore, he was compelled to file the criminal complaint case. On a perusal of the contents of the complaint, a prima facie case was made out against the accused-applicant. 5) Annexure no. He also sent the application to Superintendent of Police, Almora, but since the police did not take any action, therefore, he was compelled to file the criminal complaint case. On a perusal of the contents of the complaint, a prima facie case was made out against the accused-applicant. 5) Annexure no. 6, enclosed with the petition, indicates that the applicant gave a show cause notice to the respondent no. 1 on 10.10.2008. On 26.09.2008, at 12:40 P.M., respondent no. 1 was found sleeping during duty hours. When sentry woke respondent no. 1 up, he misbehaved with the sentry. On the same day i.e. 26.09.2008, at 02:25 A.M., respondent no. 1 was again found sleeping during duty hours. He also quarreled with the sentry. On 07.10.2008, at 11:10 A.M., Naib Subedar found that respondent no. 1 was sleeping during duty hours. Show cause notice to this effect was given to respondent no. 1. Respondent no. 1 did not reply to such a notice and, therefore, written warning was issued to him on 20th October, 2008. Another show cause notice was given to respondent no. 1 on 29th October 2008, to show cause as to why disciplinary proceedings be not initiated against him, in as much as he was continuously found absent from his duty since 25th October, 2008. On 5th November 2008, another show cause notice was given to respondent no. 1 (by the applicant) regarding his altercation and scuffle with the chowkidars deputed on night duty. Another show cause notice was given by the applicant to respondent no. 1 on 01.12.2008. Again on 01.05.2009, another show cause notice was given to respondent no. 1 for dereliction of duty. When respondent no. 1 made complaints against the applicant, the applicant submitted reply to Station Headquarter, Ranikhet on 04.11.2008, as is evident from Annexure no. 7, enclosed with the petition. The applicant was exonerated of the allegations leveled by respondent no. 1 against him. Present criminal complaint case filed by respondent no. 1, therefore, smacks of vindictiveness against the accused-applicant. It appears that the criminal complaint case filed by respondent no. 1 against the applicant was purely an afterthought and a counterblast to the show cause notices and departmental proceedings initiated against respondent no. 1. 1 against him. Present criminal complaint case filed by respondent no. 1, therefore, smacks of vindictiveness against the accused-applicant. It appears that the criminal complaint case filed by respondent no. 1 against the applicant was purely an afterthought and a counterblast to the show cause notices and departmental proceedings initiated against respondent no. 1. Present criminal complaint case appears to be an abuse of the process of the court and the same, therefore, should not be allowed to continue in the interest of justice. 6) It was held by the Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, that the process of the Court cannot be permitted to be used for an oblique or ulterior purpose. Where the Court finds that it would amount to abuse of the process of the Court or that interest of justice favours otherwise, it may drop the proceedings of the criminal case. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists. The proceedings of a private criminal complaint case cannot be permitted to be used to wreck vengeance by a subordinate against his superior. 7) Although inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself, but the present case appears to be one such case in which this Court should intervene to prevent abuse of the process of any Court. 8) Application under Section 482 of Cr. P.C. is, accordingly, allowed. The summoning order dated 05.02.2010, as also the entire proceedings of criminal case no. 64 of 2009, Khayali Ram vs Viru Pakshaiah, under Sections 323, 504, 506 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, pending before the court of Judicial Magistrate, Ranikhet are hereby quashed.