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2013 DIGILAW 771 (UTT)

Deshpal Singh Chauhan and another v. Sunil Kumar

2013-12-02

U.C.DHYANI

body2013
U.C. Dhyani, J. – The applicants, by means of present Application under section 482 Cr.P.C, seek to quash the summoning order dated 6.5.2013 passed by the Judicial Magistrate, Haridwar in Criminal Complaint Case No. 208 of 2013 titled as Sunil Kumar v. Deshpal Singh Chauhan under sections 452, 323 & 504 IPC. The applicants also seek to quash the proceedings of the aforemen­tioned criminal complaint case pending before the said Court. 2. A criminal complaint was filed by the complainant (Sunil Kumar s/o late Harish Chand) against the accused persons (applicants herein) in the Court of Chief Judicial Magistrate, Haridwar. After recording of statement of Sunil Kumar s/o late Harish Chand (com­plainant) under section 200 Cr.P.C. and statements of the witnesses, namely, Arjun and Sunil Kumar s/o Ham Singh under section 202 Cr.P.C. and after hav­ing found a prima facie case against the accused persons, the cognizance was taken by the Judicial Magistrate, vide order dated 6.5.2013 and accused-applicants were summoned to face the trial. Aggrieved, against the same, pre­sent application under section 482 Cr.P.C. was filed by the accused-applicants. 3. The injury report of Sunil Kumar s/o late Harish Chand (com­plainant) was also brought on record. According to the complaint, the ac­cused-applicants trespassed the house of complainant on 30.12.2012 at 10:00 A.M. and hurled abuses at him. Whereas accused-applicant No. 2 (Smt. Savita) assaulted the complainant with fist, accused-applicant No. 1 (Deshpal Singh Chauhan) beat him with lathi (stick). Witnesses, namely, Arjun, Dushyant and Sunil Kumar s/o Ham Singh intervened and saved the com­plainant from clutches of accused persons. The complainant got his injury examined at Government Hospital. He made an attempt to lodge the FIR, but the police did not register the case, hence, criminal complaint case. 4. In his statement under section 200 Cr.P.C., the complainant supported the prosecution story. Witnesses, namely, Arjun and Sunil Kumar s/o Ham Singh also supported the statement of PW1. As has been stated above that the injury of Sunil Kumar (complainant) is brought on record. Having found a prima facie case against the accused per­sons, learned Judicial Magistrate com­mitted no illegality in passing the im­pugned order. 5. The HonTale Apex Court in Amit Kapoor v. Ramesh Chander and an­other, (2013) 1 SCO (Cri) 986. As has been stated above that the injury of Sunil Kumar (complainant) is brought on record. Having found a prima facie case against the accused per­sons, learned Judicial Magistrate com­mitted no illegality in passing the im­pugned order. 5. The HonTale Apex Court in Amit Kapoor v. Ramesh Chander and an­other, (2013) 1 SCO (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 te^t as to whether the uncontro-verted 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. 6. 6. The Hon'ble Supreme Court in Rajiv Thapar and others v. Madan Lal Ka-poor,1 held as follows: "28.The High Court, in exercise of its jurisdiction under section 482 of the Cr.P.C, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the de­fences raised on behalf of the ac­cused is. Even if the accused is suc­cessful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving fi­nality to the accusations levelled by the prosecution/complainant, with­out allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable con­sequences. The accused would still be in a position to succeed, by estab­lishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations lev­elled, trial must be held." 7. When factual foundation of any offence is laid, against the accused-applicants, then this Court should not intervene in exercise of it's inherent ju­risdiction. It is a well settled law that the inherent powers of this Court under section 482 Cr.P.C. should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section. In the instant case, the accused-applicants are unable to pass those tests and it is not a fit case where such juris­diction should be exercised. 8. As a consequence thereof, ap­plication under section 482 Cr.P.C. is liable to be dismissed and is hereby dismissed at the admission stage itself. It is, however, provided that if the ap­plicants surrender before the Judicial Magistrate, Haridwar and seek bail, their bail application(s) in the criminal complaint case No. 208/2013 shall be decided by the Magistrate concerned on the same day. Application Dismissed. _____________