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2014 DIGILAW 24 (UTT)

Kheema Nand Sanwal v. State of Uttarakhand

2014-02-11

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. 1. The applicant, by means of present application/petition under Section 482 of Cr. P.C. seeks to set aside the order dated 22.04.2010, as also the proceedings of criminal case no. 220 of 2009, under Sections 452, 323, 504, 506 of IPC, pending in the court of Judicial Magistrate, Haldwani, District Nainital. 2. Complainant (respondent no. 2 herein) filed a criminal complaint case against three named accused persons, including the applicant, in the court of Addl. Chief Judicial Magistrate, Haldwani. After recording the statements of the complainant Smt. Dorris Praveen Singh under Section 200 of Cr. P.C. and that of witness Poonam Alka Singh under Section 202 of Cr. P.C. and having found a prima facie case against the accused persons, including the applicant, for the offences punishable under Sections 452, 323, 504, 506 of IPC, they were summoned to face the trial for the said offences, vide impugned order dated 22.04.2010, passed by learned Judicial Magistrate, Haldwani. Aggrieved against the same, present application under Section 482 of Cr. P.C. was moved. 3. As per complaint, on 04.04.2009, when the complainant was sitting at her house alongwith her family members, she heard that somebody was using filthy language outside her house at 09:00 P.M. When the complainant went out of her house, she found that Kheema Nand Sanwal alongwith 6-7 persons was pelting stones at her house. Accused persons pushed the door of the house of the complainant and trespassed into her house. Accused slapped on the face of complainant and pushed her daughter aside. They asked the complainant to vacate the premises or otherwise they will take forcible possessions of the same. Accused persons also threatened the complainant with dire consequences. The complainant gave a report of the incident to Officer In-Charge, police station, Kathgodam, but since no action was taken by the police, therefore, she was compelled to file criminal complaint case against the accused persons. In her statement under Section 200 of Cr. P.C. the complainant supported complaint version. In her statement under Section 202 of Cr. P.C. witness Poonam Alka Singh supported the complainant. Poonam Alka Singh was the daughter of the complainant. The witness stated that the accused persons slapped her mother and pushed her aside. They also threatened the complainant with dire consequences, if she did not vacate the house. 4. In her statement under Section 202 of Cr. P.C. witness Poonam Alka Singh supported the complainant. Poonam Alka Singh was the daughter of the complainant. The witness stated that the accused persons slapped her mother and pushed her aside. They also threatened the complainant with dire consequences, if she did not vacate the house. 4. On a bare reading of the complaint, the statement of the complainant under Section 200 of Cr. P.C. and statement of the witness under Section 202 of Cr. P.C. foundation of criminal offences is laid against the applicant. It cannot be said, at this stage, that no prima facie case was made out against the applicant. Learned Magistrate, therefore, appears to have committed no illegality in issuing the summons to the applicant. 5. The narrow inspection hole through which a Court exercising jurisdiction under Section 482 of Cr. P.C. is expected to look into the things is –whether foundation of any criminal offence is laid against the applicant or not? If no such foundation is laid, the Court should intervene in exercise of its inherent jurisdiction. If prima facie case is made out against the applicant, then the Court, in normal circumstances, should not intervene in the proceedings of the court below. 6. Learned counsel for the applicant contended, among other things, that an FIR was lodged by respondent no. 2 in respect of a similar incident, which allegedly took place on 16.08.2008, at 08:30 P.M. After the investigation, a charge-sheet was submitted against the applicant. Applicant faced the trial under Sections 452, 323, 504, 506 of IPC and finally he was exonerated of the said charges, vide order dated 10.10.2013, passed by learned Judicial Magistrate, Haldwani. Learned counsel for the applicant also submitted that there was a long history of litigation between the applicant and respondent no. 2, as was evident from the documents filed alongwith his rejoinder affidavit. According to learned counsel, filing of present complaint by respondent no. 2 is nothing but abuse of the process of the Court. Learned counsel for the applicant also drew the attention of this Court towards the report dated 27.01.2009 given by Circle Officer, Haldwani, in which it was written that respondent no. 2 was in the habit of filing complaints against the present applicant. Learned counsel for respondent no. 2 is nothing but abuse of the process of the Court. Learned counsel for the applicant also drew the attention of this Court towards the report dated 27.01.2009 given by Circle Officer, Haldwani, in which it was written that respondent no. 2 was in the habit of filing complaints against the present applicant. Learned counsel for respondent no. 2, on the other hand, submitted that the FIR, on the basis of which criminal case no. 626 of 2012 proceeded, relate to a different incident and not the one, which is subject matter of adjudication in the present complaint case. 7. 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. 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. 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. 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. If the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceeding in exercise of its original jurisdiction. 8. There is no occasion to quash the criminal proceedings pending against the accused-applicant in exercise of jurisdiction vested under Section 482 of Cr. P.C. at this stage, as would be evidenced from the law laid down by the Hon’ble Supreme Court, in Rajiv Thapar and Others vs. Madan Lal Kapoor, (2013) 3 SCC 330 . Paragraph no. 28 of the said ruling is reproduced here-in-below for convenience: “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. 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 charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 9. It is settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction under Section 482 of Cr. P.C. It is an admitted fact that parties were involved in long drawn litigation and it is just possible that respondent no. 2 might have filed the criminal complaint case for wrecking vengeance against the applicant. The fact remains that an FIR relating to similar incident was lodged by respondent no. 2 against the applicant earlier, who underwent trial and was exonerated by learned Judicial Magistrate, Haldwani. But considering the limited scope of Section 482 of Cr. P.C. to the extent that only a prima facie case is to be seen by this Court while examining the facts (unless, of course, the Court comes to a definite conclusion that the same is nothing but abuse of the process of the Court) and since foundation of criminal offence is laid against the applicant for the offences complained of against him, therefore, this Court is of the opinion that it is not a fit case for interference in the proceedings of the court below. 10. 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. 10. 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. At present the applicant is unable to pass those tests, pendency of litigation between the complainant and the applicant notwithstanding. 11. The application under Section 482 of Cr. P.C. is therefore dismissed, but with the direction upon learned Magistrate to decide the bail application of the applicant, if any moved, in the criminal complaint case on the same day, subject to his surrender. 12. Liberty is, however, granted to the applicant to raise all the factual pleas before learned Judicial Magistrate (trial court), including the fact that the applicant was acquitted in criminal case no. 626 of 2012, which had arisen out of an FIR lodged by respondent no. 2, relating to an incident which allegedly took place on 16.08.2008, at 08:30 P.M, for obtaining his discharge/acquittal at an appropriate time.