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2015 DIGILAW 437 (ALL)

DEVENDRA KUMAR SHARMA v. STATE OF U. P.

2015-03-10

KARUNA NAND BAJPAYEE

body2015
JUDGMENT Hon'ble Karuna Nand Bajpayee,J. This application under Section 482 Cr.P.C. has been moved for quashing the summoning order dated 10.3.2014 as well as proceedings in Complaint Case No. 4695 of 2013, Smt. Geeta Devi vs. Devendra Kumar Sharma and another, under Section 406 I.P.C., P.S.-Brahmapuri, District-Meerut pending in the court of learned A.C.J.M. Vth, Meerut. Heard learned counsel for the applicants as well as learned A.G.A. and perused the record. It appears that the notices were issued to the opposite party no.2 and the office report reveals that the same have been served personally but the complainant has chosen not to appear in the court in this matter either personally or through counsel. No power has been filed. In such circumstances, the Court deemed it fit to proceed on the basis of record taking the assistance of learned A.G.A. representing the State. As per the allegations made in the complaint, the complainant had sold her house to the accused-applicants namely Devendra Kumar Sharma and Shubham Bharadwaj in Rs. 6,50,000/-. It was alleged that accused-applicants fell short of Rs.50,000/- and they had requested that the balance amount of Rs. 50,000/- will be paid afterward. Further allegation is that the accused-applicants did not made the payment? of aforesaid amount good and also did not pay Rs. 20,000/- which were to be paid with regard to the wall. It was stated that the complainant had gone out in connection with some marriage but when she came back she found? that her house has already been taken possession of and the valuables and cash of the house had been stolen. According to the complainant, the police did not register the case and therefore, the complaint had been brought in the court. After examining the witnesses Gopi and Akash under Section 202 Cr.P.C. the court deemed it fit to summon the accused. The contention of the counsel is that the allegations made in the complaint are absurd. The entire money had been paid to the complainant and the same fact also finds mention in the sale deed and it is only because of dishonesty on the part of the complainant that entirely imaginary allegations have been made against the applicants. Further submission is that according to the allegations made in the complaint, it was agreed upon that the house shall be vacated by her only after the payment of Rs. 50,000/- would be made. Further submission is that according to the allegations made in the complaint, it was agreed upon that the house shall be vacated by her only after the payment of Rs. 50,000/- would be made. In such circumstances it remains wholly unexplained as to how the applicants got possession of the house. The contention is that the possession of the house was delivered peacefully and amicably without any resistance by the complainant herself and now this entirely frivolous story of grabbing the house by the applicants forcefully and stealthily has been made in the complaint only in order to explain the possession of the applicants over the house. The counsel has also drawn the attention of the Court to the police report which is annexure no. 3 to the application and which was called up by the court in this matter. The counsel has emphasized upon the contents of the report which unambiguously disclosed that the whole complaint is frivolous and false and because of dishonest intention on the part of the complainant, the present complaint has been maliciously filed against the applicants. Before adverting further in this matter it may be relevant to extract out the observations of the apex court made in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 wherein the Hon'ble Apex Court has held as follows: "The magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings." The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 . Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 . It shall also be germane to Court the observations made by the apex court in Bhajan Lal's case as follows:- "The following categories can be stated by way of illustration wherein the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case. It is not of little importance to note that all the contents of the application have remained unrebutted as the complainant has chosen not to appear in the Court either personally or through counsel. This fact also is undisputed that the applicants are in possession of the house. It is also undisputed and there is nothing on record to indicate that the amount which was required to be paid, actually remain unpaid. The contents of the sale deed also did not make any such mention and the allegations remained bald and unsubstantiated by the record. The whole tenor of the complaint also appears to be highly improbable and absurd. Even the Apex court has recognized certain categories in which this Court can put an end to the proceedings going on and in this regard reference may aptly be made to Catagory No. 2 of Smt. Nagawwa's case and also to Catagory No. 5 & 7 of the Bhajan Lal's decision given by the Hon'ble Apex Court. Even the Apex court has recognized certain categories in which this Court can put an end to the proceedings going on and in this regard reference may aptly be made to Catagory No. 2 of Smt. Nagawwa's case and also to Catagory No. 5 & 7 of the Bhajan Lal's decision given by the Hon'ble Apex Court. It can be said that if the allegations made in the complaint are patently absurd and smacks of malice and spite and if it is apparent on the face of the record that the proceeding going on against the applicants are inspired with oblique malafides and the prosecution of the accused is only a persecution in order to exert pressure and coerce him to cuff up money then this Court can certainly quash the proceedings. In view of the above decision, this Court is convinced on the facts and circumstances of the case that the complaint has been brought with malafide intentions. Even the police report affirms the conclusion of the Court. This Court, therefore, in the interest of justice feels that it will be a sheer abuse of the court's process to allow the continuation of the impugned proceedings and it is necessary to meet the ends of justice? that the impugned proceedings should be put to an end. The application stands allowed. The impugned order and the proceedings of the aforesaid case stands quashed. A copy of this order be certified to the lower court forthwith. ——————