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2015 DIGILAW 2300 (ALL)

Gaurav Sharma v. State of U. P.

2015-08-10

VIPIN SINHA

body2015
JUDGMENT Vipin Sinha, J. Heard Sri. Raj Kumar Khanna, learned counsel for the applicant, Sri. Ronak Chaturvedi, learned counsel for opposite party no.2 and learned AGA appearing for the State. 2. The instant application U/s 482 Cr.P.C. has been filed for quashing of the entire proceedings of complaint case no. 531 of 2014 (Old No. 398 of 2014); Priti Sharma v. Srikant Atrey and others, under Section 307 /34 IPC, P.S. Kotwali City, District Bijnor pending in the court of IInd Additional Civil Judge (J.D.)/Judicial Magistrate, Bijnor as far as it pertains to the present applicant. 3. Counter and rejoinder affidavits have been duly exchanged between the parties. 4. The matter is being heard and decided finally with the consent of learned counsel appearing for both the sides. 5. Sri. Raj Kumar Khanna, Advocate appearing for the applicant has strongly pressed for quashing of the entire proceedings by stating that initially O.P. No.2 had filed an application under Section 156(3) Cr.P.C. in the court of Chief Judicial Magistrate, Bijnor against the applicant with regard to one incident which is said to have taken place on 13.6.2014 at about 7.30 p.m. He contended that this application was treated as complaint by the learned Magistrate, who had taken cognizance on the aforesaid application and registered the case as complaint case no. 398 of 2014 vide order dated 13.6.2014 and directed the complainant to get her statement recorded under Section 200 Cr.P.C. He further contended that in view of the said order, the statement of the complainant (O.P. No.2) was recorded. The said complaint was filed against the persons, namely, Srikant Atrey @ Shambhu, Dhananjay Awasthi, Gaurav Sharma, Yashkant Atrey S/o late Chandrakant Atrey and Meera Atrey W/o late Chandrakant Atrey. 6. The complaint is being sought to be quashed inter alia on the ground that the statement of the victim Ankit (PW2) was recorded almost after 25 days of the incident in which he has not disclosed about his medical examination at Meerut. He further contended that the applicant had obtained the documents filed by the other side and it was only then they came to know that after discharge from District Hospital, Bijnor on 13.6.2014, Uttam Kumar (victim) was not admitted in the hospital. He got X-ray from Jagdamba Hospital, Meerut on 16.6.2014 whereas the report of the X-ray was prepared at Hiralal Diagnostic Centre at Meerut. 7. Sri. He got X-ray from Jagdamba Hospital, Meerut on 16.6.2014 whereas the report of the X-ray was prepared at Hiralal Diagnostic Centre at Meerut. 7. Sri. Khanna, learned counsel for the applicant has placed much emphasis on the C.T. Scan report of Ankit raising his contention that the C.T. Scan photo plate indicates that it belongs to some other person, namely, Pintu and the date of Scan is 24.4.2014 while admittedly by the prosecution the incident took place on 13.6.2014 and an effort has been made by Sri. Khanna to induce the Court into appreciating the evidence, the documents and to judge the veracity of the same at this stage. He further contended that perusal of the photo plate of C.T. Scan shows that it belongs to some other person, namely, Pintu and that the complainant has manipulated the same and the name of Ankit Bhardwaj has been introduced by computer technology. He contended that according to the prosecution, the alleged incident took place on 13.6.2014 at about 7.30 p.m. whereas on the same day victim Uttam Kumar was examined at District Hospital, Bijnor and also on the same day he was advised for X-ray, however, victim Uttam Kumar got himself discharged from hospital and went to Meerut and got X-ray at Meerut on 16.6.2014. 8. An effort has been made to show that the documents, which have been filed by the opposite party no. 2 in support of her case are forged and fabricated and, thus, they could not have been looked into while issuing summons. 9. Learned counsel for the applicant further submits that in view of the aforesaid facts and circumstances, it was incumbent upon the learned Magistrate to have made an inquiry with regard to the veracity and the truthfulness of the documents filed by the side of the complainant. He submits that the complainant herself has not come with clean hands before the learned Magistrate and has filed frivolous documents in support of the injuries, hence the prosecution launched on the basis of such false and fabricated documents is gross abuse of process of Court and not sustainable in the eyes of law and on the basis of this, the entire proceeding of the case may be quashed. 10. 10. Learned counsel for the applicant has very fairly conceded that the learned Magistrate has summoned all the applicant vide his order dated 10.9.2014 for the offences under Sections 307/34 IPC and aggrieved against which the other co-accused had filed a revision which has been dismissed vide order dated 30.6.2015. However, he submits that the present applicant is seeking the quashing of the entire proceedings of the present case and that the present applicant had not filed any revision. 11. It has further been strongly contended that since the case is triable by court of sessions, thus, it was incumbent upon the learned Magistrate to have made an inquiry with regard to truthfulness of the documents filed by the complainant before launching the prosecution and issuing summons. 12. Sri. R. K. Khanna has placed reliance upon a judgment of this Court rendered in the case of Rikhvev and another v. ADM (Finance), Azamgarh and others reported in 2011 (10) ADJ 629 and submitted that any order obtained by fraud is a nullity. He further relied upon a judgment of Apex Court rendered in Pepsi Foods v. Judicial Magistrate reported in 1998 (5) SCC 749 . 13. Sri. Ronak Chaturvedi, learned counsel for O.P. No.2 submits that it is not a case where there is only one evidence i.e. C.T. Scan photo plate but there are also a number of other evidences on record. It has been contended that apart from X-ray plate there are medical reports, copies of which have been brought on record along with the counter affidavit. He further submits that the Chief Judicial Magistrate, after perusing the complaint and the statement of the witnesses, has rightly summoned the applicant and the other accused-persons. It has been submitted that even the independent witness Raju has also supported the version of the complaint and the statement of the injured witness. He has strongly argued that against the summoning order, the other co-accused had filed a revision, which has been dismissed by the revisional court after considering each and every aspect of the case as per the law applicable at the state of summoning and thus in this view of the matter the applicant in the present case is not entitled to grant of any indulgence whatsoever. It has been further contended that the Additional Sessions Judge, Bijnor while dealing with the arguments of C.T. Scan has rightly come to a conclusion that there are other injury report available on record and at the stage of summoning only a prima facie case has to be seen and the veracity of the case has to be seen by the Magistrate at the stage of trial. He relied upon a judgment of Apex Court rendered in the case of Smt. Nagawwa v. Veeranna Shivalinapa reported in 1976 (3) SCC 736 and has submitted that the Magistrate only has to see as to whether there exists praima facie case or not and he is not supposed to enter into a detail discussion of the merits or demerits of the case. 14. A number of other cases have also been relied upon in support of his contention by the learned counsel for opposite party no.2. He has relied upon a judgment of Apex Court rendered in the case of Sonu Gupta v. Deepak Gupta and others reported in 2015 (3) SCC 424 to contend that at the stage of summoning only a prima facie case has to be seen by the learned Maigstrate and the learned Magistrate is not required to evaluate the merits or evidence of the complaint. Moreover, the present case being one under Section 307 IPC in which there are injured witnesses as well as injury report and the statement of doctor on record corroborating the version of the complainant, the proceedings ought not to be quashed at the very threshold. 15. Having perused the documents on record and the relevant facts as stated by both the parties, it is evident that, at present, against an order summoning the accused, the other co-accused had filed a revision and their revision has been dismissed by means of reasoned and speaking order and, thus, no ground for grant of any indulgence to the present co-accused is made out even otherwise. 16. 16. It may also be observed that vide order, by means of which the revision filed by the other co-accused has been rejected, copy of which has been annexed as annexure no.14 to the affidavit accompanying the application, the revisional court while considering the submission of the applicant with regard to C.T. Scan, has observed herein as under: ----Hindi---- Moreover, it may be appreciated that the perusal of the order dated 10.9.2014 by means of which summons have been issued clearly shows that the said order is an elaborate and speaking order and, thus, it cannot be said that it suffers from non-application of mind. 17. It goes without saying that the powers possessed by the High Court under section 482 of Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; moreso, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they can not be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. 18. It may also be appreciated that it is a established position of law that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence or in other words to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments no he is required to evaluate the merits of the materials or evidence of the complainant. 19. Thus, in view of the aforesaid facts and circumstances, no case for grant of any indulgence has been made out and the proceedings that too under section 307 IPC cannot be quashed at the very threshold. 19. Thus, in view of the aforesaid facts and circumstances, no case for grant of any indulgence has been made out and the proceedings that too under section 307 IPC cannot be quashed at the very threshold. Accordingly, the prayer for quashing the entire proceedings is rejected, as no ground whatsoever has been made out for exercising the inherent power under Section 482 Cr.P.C. Moreover, it cannot be disputed that the applicant will have sufficient opportunity to raise his objections and take whatever defense that he may want to take at subsequent stages. 20. However, liberty is granted to the applicant to seek appropriate remedy before the appropriate forum at the appropriate stage. 21. A supplementary affidavit has been filed on behalf of the applicant and as per which, Non Bailable Warrant has been issued against the applicant. 22. In view of the aforesaid, even though no indulgence is being granted with regard to quashing of the entire proceedings, however, in case the applicant appears and surrenders before the courts below within 45 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 45 days from today or till such time the applicant surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the courts below within the aforesaid period, coercive action shall be taken against him. With the aforesaid observations, the application U/s 482 Cr.P.C. is disposed off finally.