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Allahabad High Court · body

2016 DIGILAW 1350 (ALL)

BARKHA SHARMA v. STATE OF U. P.

2016-04-12

HARSH KUMAR

body2016
JUDGMENT : Hon'ble Harsh Kumar, J. Heard learned counsel for the parties. The present application U/s 482 Cr.P.C. has been moved for quashing the order dated 2.4.2015 passed by C.J.M., Ghaziabad as well as proceedings of criminal case no.10733 of 2015 in case crime no.330 of 2014 (State Vs. Sumit and others), under sections 201, 420, 406, 120-B, 500, 504 and 506 IPC, P.S. Kavi Nagar, District Ghaziabad, pending in the court of C.J.M., Ghaziabad. Learned counsel for the applicants contended that the opposite party no.2, who is an influential person as well as clever and notorious Advocate of Ghaziabad, moved an application under section 156(3) Cr.P.C. on 11.11.2013 for getting the F.I.R. registered against Samsung Electronics and four others including some of the applicants, with the false and incorrect allegations that "Samsung Mobile set purchased by him on 8.6.2013, was not working properly so he approached the service centre on 21.10.2013, where the lady representative misbehaved him and asked him to go out of service centre and to come after 10 minutes and when he reached the centre after 10 minutes refusing to repair mobile set under warrant, he was asked to pay Rs.3800/- as repairing charges on the ground that since some liquid has entered in the mobile set, it cannot be repaired under the warranty; that he served legal notice on the samsung company and service centre etc. upon which on 7.11.2013, he was beaten to death mercilessly by lathi, danda, sticks and deadly weapons and pushed on the ground treating him to have died, applicant no.3 Sumit snatched the valuable chain from his neck." That on this application, case crime no.1671 of 2013 was registered and upon investigation, final report was submitted by I.O. on 13.12.2013 against which no objections were filed by opposite party no.2; that in the meantime, the opposite party no.2 moved another application under section 156(3) Cr.P.C. on 6.12.2013 with the allegations that on 12.11.2013 (the very next day of moving of earlier application under section 156(3) Cr.P.C), a phone call was made to him by Anil, the owner of Micro Solution Service Centre that he (Anish Chaudhary, Advocate), may obtain his mobile phone from Sumit and Smt. Barkha Sharma in response to which on 13.11.2013 when he approached Smt. Barkha, the applicant no.1, he was not only abused and threatened by applicants but was also told that his mobile set containing material evidence has been concealed by owner of service centre as well as Manager Sumit upon alleged instructions of their higher officers; that on this second application under section 156(3) Cr.P.C., another F.I.R. was registered at case crime no.330 of 2014 in which charge sheet has been submitted by I.O. without collecting any material evidence and the Magistrate without applying his mind has taken cognizance. That the F.I.R. lodged at case crime no.330 of 2014 contains false, frivolous, vexatious and oppressive allegations with respect to the alleged incident dated 13.11.2013 from to same series of transactions regarding service of same mobile set in connection with which the opposite party no.2 was allegedly attacked on 7.11.2013 and lodged an F.I.R. through application under section 156 (3) Cr.P.C. dated 11.11.2013 at case crime no.1671 of 2013, under sections 147, 148, 149, 418, 420, 120-B, 307, 397 398, 500, 504 and 506 IPC; that in order to harm or harass the applicants by narrating another fake incident dated 13.11.2013, just after two days of moving of earlier application, another application under section 156(3) Cr.P.C. was moved for registering another F.I.R. under sections 201, 420, 406, 120-B, 500, 504, 506, IPC by concealing lodging of earlier F.I.R. at cross case no.1671 of 2013; that as per averments made in earlier F.I.R. regarding incident dated 7.11.2013, the attempt on the life of opposite party no.2 was made and he was beaten to death mercilessly by the lathi, danda, sticks and deadly weapons etc. and despite the fact that opposite party no.2, an advocate was seriously injured, there is no medical examination report on record to show even a single and simple injury having been alleged sustained by him; that it is next to impossible that a person on whose life attempt was made by beating him mercilessly and treating him to have died, chain was snatched from his neck and F.I.R. was lodged by him for various heinous offences under sections 307, 397, 398 etc. apart from other sections at case crime no.1671 of 2013. apart from other sections at case crime no.1671 of 2013. It appears absolutely wrong and false and highly improbable that despite the fact that the injured is none other a senior advocate, he did not got him medically examined and without getting the alleged injuries examined or treated, despite the fact that attempt was on his life two days ago, again reached the service centre all alone just after two days; that in the final report submitted by I.O in case crime no.1671 of 2013, copy filed at Annexure No.3, it has been specifically mentioned that upon investigation it was found that Samsung mobile set of opposite party no.2 had gone out of order due to water inserted therein and was returned to him without service on the ground that such cases are not covered under warranty; that the F.I.R. has been lodged with false and concocted allegations; that against final report submitted in case crime no.1671 of 2013, no protest petition was ever filed by the opposite party no.2 rather pending first application under section 156(3) Cr.P.C., he moved another application under section 156 (3) Cr.P.C and by exerting undue influence of his being an advocate got another F.I.R. lodged with false and concocted allegations; that the second application under section 156 (3) Cr.P.C. was moved with malafide intentions to abuse the process of court and harm or harass the employees of Samsung Electronics Service Centre on the basis of false and concocted story; that though the allegations made in subsequent F.I.R. are absolutely false and incorrect and no such incident ever taken place, but even if the opposite party no. 2, claims any truthness in the allegations made therein regarding the alleged incident dated 13.11.2013, he could have moved a supplementary application to the court, in proceedings pending before the Magistrate on his earlier application under section 156(3) Cr.P.C. dated 11.11.2013 arising out of same transaction; that if the proceedings of criminal case in respect of same series of offence in furtherance of second F.I.R. are allowed to stand, it will occasion in failure of justice causing irreparable injury to applicants, who will have to face the double jeopardy for one series of transaction as against the provisions of section 219 Cr.P.C.; that in order to prevent the abuse of process of court and to secure the ends of justice, the proceedings of criminal case no.10733 of 2015 on the basis of second F.I.R. (in respect of same series of transaction) case crime no.330 of 2014 as well as order of cognizance dated 2.4.2015 passed by Magistrate, are liable to be quashed. Per contra, learned counsel for opposite party no.2 contends that though objections have not been filed by him against the final report submitted by I.O. in earlier case crime no.1671 of 2013, the same has not yet been accepted by Magistrate; that the incident dated 13.11.2013 is separate from the incident dated 7.11.2013 mentioned in F.I.R. of case crime no.1671 of 2013; that it is wrong to say that opposite party no.2 is an influential person and notorious Advocate of Ghaziabad; that answering opposite party no.2, is a peace loving advocate and offences as mentioned above in case crime nos.1671 of 2013 and 330 of 2014, have been committed against him; that if the proceedings of criminal case no.10733 of 2015 case crime no.330 of 2014 are allowed to stand, the applicants are not likely to suffer any loss while in case of quashing of the same, the opposite party no.2 shall suffer irreparably. Upon hearing learned counsel for the parties and perusal of record, I find that as per the averments made in two applications under section 156(3) Cr.P.C., upon which two separate F.I.R. were lodged at case crime nos.1671 of 2013 and 330 of 2014, respectively were filed on 11.11.2013 and 16.12.2013, respectively with regard to criminal incidents dated 7.11.2013 and 13.11.2013, allegedly committed by employees of Samsung Service Centre in connection with refusal from free repairing of the mobile set of opposite no.2 Anish Chaudhary, Advocate, under warranty period. The allegations made in two applications U/s 156(3) Cr.P.C. appears to have been exaggerated and are highly improbable. It appears absolutely wrong and false and highly improbable that despite the fact that the injured is none other a senior advocate, he did not got him medically examined and without getting the alleged injuries examined or treated, despite the fact that attempt was on his life two days ago, again reached the service centre all alone just after two days. As per averments made in the first application under section 156(3) Cr.P.C. an attempt was made on the life of opposite party no.2 with lathi, danda and sticks as well as other deadly weapons and on treating him to have died, his valuable chain is also alleged to have been looted and snatched from his neck. There is no whisper that after having been beaten so mercilessly he got himself medically examined or treated, rather claims to have again reached at the service centre just after two days when another incident was allegedly committed with him. The opposite party no.2 is an advocate and mention of various sections of heinous offences in two applications under section 156(3) Cr.P.C. also speaks of his advocacy as well as cleverness of opposite party no.2. The fact that no protest petition was filed by opposite party no.2 against the final report submitted in case crime no.1671 of 2013 is also not disputed. The fact that no protest petition was filed by opposite party no.2 against the final report submitted in case crime no.1671 of 2013 is also not disputed. In any case, if moving of an application under section 156(3) Cr.P.C. for lodging F.I.R. on 11.11.2013 any subsequent incident in relation to the earlier incident regarding the service of same Samsung Mobile Set was committed on 13.11.2013, the first informant opposite party no.2 had every right and opportunity to inform the court in his pending application dated 11.11.2013 or could have informed the police authorities of the subsequent event dated 13.11.2013 and could have moved another application in the earlier application U/s 156 (3) Cr.P.C. dated 11.11.2013, which was pending for disposal. Moving of another application after a lapse of three weeks for getting it lodged the second F.I.R. regarding the same series of offence may not be considered to be a bonafide action of an advocate rather is a malafide action which causes the abuse of process of court at the hands of an influential and clever Advocate, (who is supposed to be having knowledge of the provisions of section 219 Cr.P.C.) and is not permissible under law. This conduct of opposite party no.2, gives weight to the arguments of appellants that opposite party no.2 is not only a clever, but a notorious advocate. Even in case the repair of mobile set of applicant within warranty period was wrongly refused by the workers/employees at service centre of Samsung, the applicant had a legal remedy of approaching the District Consumer's Reddressal Forum by way of a complaint, but causing harassment of poor innocent employees/workers at Service Centre of Samsung Company, by way of repeated F.I.R.s and criminal proceedings on the basis of incident, happening of which is highly improbable, may not be appreciated. I am of the considered view that the opposite party no.2 taking undue advantage of his being lawyer has misutilized the process of court in getting the second F.I.R. lodged through second application under section 156(3) Cr.P.C. in respect of alleged incident dated 13.11.2013, (in continuance of same series of alleged earlier incident dated 11.11.2013) concealing the factum of moving of earlier application under section 156(3) Cr.P.C. and the proceedings of criminal case no.10733 of 2015 in furtherance of charge sheet in subsequently registered case crime no.330 of 2014, State Vs. Sumit and others are nothing but abuse of process of court. I find that if such proceedings are allowed to stand and proceed, it will cause miscarriage of justice and irreparable injury to applicants. In view of the facts and circumstances as well as the discussions made above, I am of the considered view that in the interest of justice and in order to prevent abuse of process of court being committed at the instance of opposite party no.2 as well as in order to secure the ends of justice, the exercise of inherent powers by this Court is necessary and incumbent in the interest of justice and the proceedings of criminal case no.10733 of 2013 arising out of case crime no.330 of 2014 under sections 201, 420, 406, 120-B, 500, 504 and 506 IPC in furtherance of charge sheet as well as cognizance order dated 2.4.2015, are liable to be quashed. Accordingly, the proceedings of criminal case no.10733 of 2013 arising out of case crime no.330 of 2014 under sections 201, 420, 406, 120-B, 500, 504 and 506 IPC in furtherance of charge sheet as well as cognizance order dated 2.4.2015, are quashed.