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2014 DIGILAW 28 (UTT)

Mohan Chandra Tiwari v. Kashi Ram Pujari

2014-02-12

U.C.DHYANI

body2014
JUDGMENT U.C. Dhyani, J. 1. The applicants, by means of present application under Section 482 Cr. P.C. seek to quash the summoning order dated 22.09.2009 as well as the entire proceedings of Criminal Case No. 346 of 2009, captioned as Kashi Ram Pujari vs. Mohan Chandra Tiwari and others, under Sections 506 IPC pending before the Judicial Magistrate, Ranikhet, District Almora. 2. A first information report was lodged by the informant (respondent no. 1 herein) against the applicant no. 1 and his son Ashish Tiwari for the offences punishable under Sections 498-A IPC and 406 IPC read with Section 34 IPC. After the investigation, a charge-sheet for the offences punishable under Sections 498-A, 304-B, 316 and 406 read with Section 34 IPC was submitted against the accused persons. Cognizance was taken on the said charge-sheet and accused persons were summoned to face the trial. The accused persons underwent the trial. They were finally acquitted by the learned trial court. An appeal was preferred against their acquittal in the Hon’ble High Court of Delhi, who also dismissed the appeal and affirmed the order of acquittal in favour of applicant no. 1 and his family members. 3. On 19.08.2009, a criminal complaint was filed by respondent no. 1 against the present applicants in respect of an incident, which allegedly took place on 28.06.2009, in the Court of Judicial Magistrate, Ranikhet. After recording the statement of the complainant under Section 200 Cr. P.C. and statement of his witness Manoj Joshi under Section 202 Cr. P.C. the applicants were summoned to face the trial for the offence punishable under Section 506 IPC, vide order dated 22.09.2009 passed by learned Judicial Magistrate, Ranikhet. Aggrieved against the same, present application under Section 482 Cr. P.C. was filed. 4. According to the complainant, a case of dowry death was instituted against the applicant no. 1 and others, which was pending adjudication in the Court of Additional Sessions Judge, Dwarka, New Delhi. Complainant and his family members were to tender evidence. On 28.06.2009, at 2:00 pm, when the complainant was sitting in his shop, accused persons (applicants herein) came to his shop and told them not to tender evidence against the in-laws of the victim. They threatened that if they give evidence, they would be killed. Whereas the incident allegedly took place on 28.06.2009, the criminal complaint case was filed on 19.08.2009. 5. They threatened that if they give evidence, they would be killed. Whereas the incident allegedly took place on 28.06.2009, the criminal complaint case was filed on 19.08.2009. 5. Rejoinder affidavit is filed on behalf of the applicants along with a copy of the judgment rendered by Hon’ble High Court of Delhi to show that the appeal filed against the acquittal of the applicant no. 1 and others was dismissed vide judgment and order dated 04.05.2012. It is argued by learned counsel for the applicants that when applicant no. 1 and others were granted bail by the Additional Sessions Judge, Delhi, respondent no. 1 moved an application for cancellation of their bail on 14.05.2009. In respect of such application for cancellation of bail, present complaint was lodged by respondent no.1 to show that the applicants threatened him with dire consequences. The incident was shown to be held on 28.06.2009. Such an application which was moved on behalf of respondent no.1 for cancellation of bail of applicant no. 1 and others, was dismissed by the Hon’be High Court of Delhi. It is also the contention of learned counsel for the applicants that the ingredients of the present complaint were false and the same was filed only for the purpose of giving momentum to the application for cancellation of bail of applicant no. 1 and others. 6. Learned counsel for the respondent no.1, on the other hand, submitted that the statement of the complainant under Section 200 Cr. P.C. and the statement of Manoj Joshi under Section 202 Cr. P.C. cannot be ignored so lightly. 7. Learned counsel for the applicants relied upon the decision of Hon’ble Apex Court in Pepsi Foods Limited and Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 . It will be profitable to reproduce the observations of Hon’ble Apex Court herein below: “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” 8. Prima facie, on the basis of the statements under Section 200 and 202 Cr. P.C. the case under Section 506 IPC was made out against the applicants, but there is something more to it than meets the eye. Summoning is unlike an arithmetic calculation that a few sentences are spoken by the complainant and his witnesses and, thereafter, the accused persons are summoned for particular offences mechanically. In the instant case, it appears to the Court that the object of the complainant, by filing such complaint, was simply to exert pressure upon the Court to achieve some purpose. In such circumstances, this Court should intervene in exercise of its inherent jurisdiction. In the instant case, the object of such complaint was to give strength to the application for cancellation of bail of applicant no.1 and others in Hon’ble High Court of Delhi, which application was dismissed by the Hon’ble Court. 9. Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander and Another, (2013) 1 SCC (Cri) 986, has held that where the court finds that it would amount to abuse of process of the Court or that interest of justice favours otherwise, it may quash the proceedings. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 10. There is yet another aspect of the matter. The incident allegedly took place on 28.06.2009 and the complaint appears to have been filed after due deliberations and afterthought on 19.02.2009, i.e. after about two months. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. 10. There is yet another aspect of the matter. The incident allegedly took place on 28.06.2009 and the complaint appears to have been filed after due deliberations and afterthought on 19.02.2009, i.e. after about two months. The same speaks in volumes about the intention of the complainant. 11. In the facts and circumstances of the case, initiation of criminal proceeding by the respondent no.1 against the applicants should be set aside to secure the ends of justice. 12. Accordingly the Crl. Misc. Application No. 874 of 2009 is allowed. As a consequence thereof, the summoning order dated 22.09.2009 passed in Criminal Case No. 346 of 2009 Kashi Ram Pujari vs. Mohan Chandra Tiwari and others, under Sections 506 IPC pending before Judicial Magistrate, Ranikhet, District Almora and further proceedings emanating therefrom, are hereby set aside.