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2014 DIGILAW 1002 (ALL)

Anil Kumar Tripathi v. State of U. P.

2014-03-28

ZAKI ULLAH KHAN

body2014
JUDGMENT Zaki Ullah Khan,J.: - The instant application under Section 482 Cr.P.C. has been filed by Shri Anil Kumar Tripathi, a practicing Advocate of the High Court, in person, challenging the summoning order dated 02.03.2009 passed by A.C.J.M., C.B.I, Lucknow. By the impugned application, the applicant has prayed that the Court may set aside the charge-sheet dated 27.12.2008 (Annexure No.2) relating to Case Crime No.567 of 2008, under Sections 332, 353, 504 and 506 I.P.C., Police Station Wazirganj, District Lucknow. 2. Shri Anil Kumar Tripathi, Advocate, arguing in person, challenged the F.I.R. lodged by Raj Kumar Yadav (H.C.No.0558). The applicant alleged that the complainant in his F.I.R. stated that on 28.11.2008 at about 10: 00 a.m. an advocate whose name is Anil Kumar Tripathi came in his vehicle at the gate where the complainant was guarding and the applicant tried to pass the vehicle besides the complainant and he escaped unhurt as he saw the incoming vehicle from opposite direction; that the applicant immediately after parking the vehicle came to Gate No.5 of the High Court and he cautioned that this time the complainant escaped unhurt but in future he will be run over by his car; that when the complainant questioned that how he could run over his car, then the applicant-Advocate voluntarily caused hurt by slapping the complainant and threatened that one day he will run over the car on him, then he will not be in a position to check the car. 3. The applicant arguing in person alleged that the F.I.R. did not constitute any offence under Sections 332, 353, 504 & 506 I.P.C. because while driving the car he neither run over the complainant nor he made any gesture and he also did not utter any word to insult the Home guard. On the contrary, the Home Guard alleged that after parking the car the applicant-Advocate came and then slapped him and threatened that next time he will pull down the Home Guard so that he will not be in a position to check the car. The applicant argued that the Home Guard has no power to check the car. Since he was only placed to guard the gate but he has no jurisdiction to check the car, all the allegations made against the applicant are uncalled for and allegations did not constitute any offence as alleged. The applicant argued that the Home Guard has no power to check the car. Since he was only placed to guard the gate but he has no jurisdiction to check the car, all the allegations made against the applicant are uncalled for and allegations did not constitute any offence as alleged. Therefore, the F.I.R. is liable to be quashed and any action taken on the F.I.R. is liable to be quashed. 4. Heard Shri Anil Kumar Tripathi, applicant in person and learned A.G.A. for the State. 5. Learned A.G.A. rectified the arguments advanced by the applicant and specified that H.C. does not mean Home Guard. It is H.C and not H.G. The complainant is Head Constable and not Home Guard and he has got every right to check the vehicle. Although, hurt has not been caused by the vehicle but subsequently the applicant came and slapped the complainant while he was discharging his duty and threatened, therefore, the offence is complete. Since the cognizance has been taken on charge-sheet submitted by the police, the Court is seized with the power under Section 482 Cr.P.C. and the matter cannot be quashed. Section 482 Cr.P.C. is reproduced herein below: - "482. Saving of inherent power of High Court: - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 6. Section 482 Cr.P.C. clearly reveals that ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of justice. Hon'ble the Apex Court has laid down this ratio in Hamida vs. Rashid, (2008) 1 SCC 474 . It means that the duty of the court is to scrutinize whether it would result in miscarriage of justice if the order is not expunged. Hon'ble the Apex Court has laid down this ratio in Hamida vs. Rashid, (2008) 1 SCC 474 . It means that the duty of the court is to scrutinize whether it would result in miscarriage of justice if the order is not expunged. The view is directly suggests that inherent jurisdiction under Section 482 Cr.P.C. should be exercised sparingly, carefully and with caution but only when such exercise is justified by the tests specifically laid down in the section itself. The powers under Section 482 Cr.P.C. are so wide that the High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercise in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings; Popular Muthiah v. State, (2006) 7 SCC 296 . As far as the powers of the High Court under Section 482 Cr.P.C. are concerned, these powers are unlimited and inherent in nature, therefore, the arguments placed by learned A.G.A. are that charge-sheet has been submitted will not stop from exercising the powers under Section 482 Cr.P.C. 7. It is, therefore, necessary to look into the merits and demerits of the case. The Head Constable has alleged that after parking the vehicle, the applicant-Advocate slapped the Head Constable and threatened him that in future he will run over the car and he will not in a position to check the vehicle. It is interesting to note that the duties of the constable posted outside the High Court is only to check the incoming and out coming vehicles to facilitate the traffic and not to check individual car. However, if there is some hindrance, they can report for individual checking to superior officer posted there. His duty is only to facilitate the traffic and to regularize the traffic. As per allegations, the applicant has only tried to pass the vehicle besides Head Constable. There was no intention to cause hurt. The complainant immediately withdrew himself from the path, therefore, there was no incident and he was not hurt. Section 332 of I.P.C. is reproduced as under: - "332. As per allegations, the applicant has only tried to pass the vehicle besides Head Constable. There was no intention to cause hurt. The complainant immediately withdrew himself from the path, therefore, there was no incident and he was not hurt. Section 332 of I.P.C. is reproduced as under: - "332. Voluntarily causing hurt to deter public servant from his duty.-- Whoever voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 8. The essential ingredients of voluntarily causing hurt; that means the applicant-Advocate must have voluntarily caused hurt while parking the vehicle. He did not cause any hurt nor deter the complainant from observing the performance of his duty. It was just a sheer chance that the vehicle passed besides the complainant. Similarly, Section 353 of I.P.C. is reproduced as under: - "353. Assault or criminal force to deter public servant from discharge of his duty.-- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person to the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." 9. The ingredients of Section 353 Cr.P.C. are also not attracted as the applicant-Advocate did not deter the public servant from discharging of duty. It was routine manner in which he passed by his vehicle. It is the subsequent act of the applicant-Advocate that creates the offence as per the allegations of complainant-Head Constable, after parking the vehicle, the applicant-Advocate came and slapped him. The main allegation of the complainant is that he has been slapped while he was performing his duty. It was routine manner in which he passed by his vehicle. It is the subsequent act of the applicant-Advocate that creates the offence as per the allegations of complainant-Head Constable, after parking the vehicle, the applicant-Advocate came and slapped him. The main allegation of the complainant is that he has been slapped while he was performing his duty. The question is that whether he has been deterred from performing the duty, as such, the ordinary course could have been that aggrieved by his behaviour, the Head Constable should have reported the matter to the Registrar of this Court or to any higher police officer nearby and then lodged the F.I.R. because the circumstances do warrant since the Head Constable is supposed to be dedicated person and while in duty he should perform his duty meticulously. The Advocate has no grudge against duty personnel and he parked his vehicle and while coming to Gate No.5 he has no business to challenge the constable. There was no occasion for him to make altercation with the constable because he did not create any hindrance either in parking the vehicle or elsewhere and he even did not check him while he was driving. The allegations are that subsequently he came and challenged, it appears that the offence under Sections, 332 & 353 are not attracted and, therefore, it would not be proper for prosecution to continue the proceedings unnecessarily and to waste precious time of Court and definitely it will cover gross abuse of the powers of any court because the Court has exercised the jurisdiction without observing the due formalities as mentioned in the Act. The court has mechanically passed the order and took cognizance without scrutinizing the contents of the charge-sheet. The court should have scrutinized the matter in view of Section 190(1) Cr.P.C., it was the duty of the court to ascertain as to what are the offences and whether the offences are made out or not. If the facts do not constitute the offence, it would not be proper for the court to just take cognizance. The cognizance means the constitution of the offence. In the aforementioned circumstances, there is nothing like voluntarily causing hurt. The allegations appear to be plain that the applicant-Advocate passed the vehicle besides the complainant, who escaped unhurt but there is nothing like voluntarily causing hurt. The cognizance means the constitution of the offence. In the aforementioned circumstances, there is nothing like voluntarily causing hurt. The allegations appear to be plain that the applicant-Advocate passed the vehicle besides the complainant, who escaped unhurt but there is nothing like voluntarily causing hurt. Therefore, the application under Section 482 Cr.P.C. is liable to be allowed. 10. The application is allowed and Charge-sheet dated 27.07.2008 relating to Case Crime No.567 of 2008, under Sections 332, 353, 504 and 506 I.P.C. is hereby quashed, which is pending before A.C.J.M., C.B.I., Lucknow.