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2017 DIGILAW 258 (UTT)

DANISH v. JARIF AHMAD KHAN

2017-04-24

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J.(Oral) By means of present application under Section 482 Cr.P.C., the applicants seek to quash the impugned summoning order dated 08.09.2015, as also the entire proceedings of criminal complaint case No. 263 of 2015, Jarif Ahmad Khan Vs. Danish and others, under Sections 323, 504, 506, 452 IPC, pending in the court of Judicial Magistrate, Kashipur, District Udham Singh Nagar. A further prayer has been sought to quash the order dated 05.08.2016, passed by learned Addl. Sessions Judge, Kashipur, District Udham Singh Nagar in Criminal revision No.83 of 2016, Danish and others Vs. State of Uttarakhand and others. 2. Respondent filed an application under Section 156(3) Cr.P.C. before the trial court, which was converted into a criminal complaint case. Statement of complainant Jarif Ahmad Khan was recorded under Section 200 Cr.P.C., in which he had supported the complaint story. Statement of witnesses, namely, Shannu Khan @ Mohd. Riyaz, Shafeeq Ahmad Khan and Ahmadullah were recorded under Section 202 Cr.P.C. After considering the statements of the complainant and his witnesses, the accused persons were summoned to face the trial for the offences punishable under Sections 323, 504, 506, 452 IPC by a detailed and well reasoned order dated 08.09.2015, passed by learned Judicial Magistrate, Kashipur. A criminal revision was preferred against the same, which was dismissed by learned Addl. Sessions Judge, Kashipur vide order dated 05.08.2016. Hence, present application under Section 482 Cr.P.C. 3. In brief, the complaint story is that on the inclination of the accused to go abroad, complainant introduced him to a travel agent Mr. Maria Lazer Chetiyaar and Danish handed over photocopy of his passport and entire documents relating to educational qualification to said agent. Thereafter, said agent called for in-principle approval dated 03.03.2014 from Amara Hotel and Resort, Singapore, which was the first agreement for getting visa. After getting the in-principle approval, Danish took the complainant to Mumbai and transferred Rs. 70,000/- to the account of the agent. This amount includes expenditure incurred by the agent and air ticket of Singapore amounting to Rs. 22,000/-. As per approval letter, security of 5000 Singapore Dollars was to be deposited for 26 months, which was as per the policy of Singapore Government, and had to be returned to the depositor after completion of 26 months of his job. This amount includes expenditure incurred by the agent and air ticket of Singapore amounting to Rs. 22,000/-. As per approval letter, security of 5000 Singapore Dollars was to be deposited for 26 months, which was as per the policy of Singapore Government, and had to be returned to the depositor after completion of 26 months of his job. On hearing this, Danish kept mum at that time, but after returning to Bazpur, he started telling the complainant that he is unable to deposit such a huge amount of security and requested the complainant to get his money back from the agent. Danish neither deposited 5000 Singapore dollars on the date fixed as per in-principle approval, nor informed the complainant about the fraudulent mark sheets which he has enclosed with his passport. As Danish is complainant’s cousin by relation, he convinced the agent not to initiate any criminal proceedings against Danish and by exerting pressure on the agent, succeeded in getting back a sum of Rs. 1,08,000/-. Said amount was handed over to Danish by way of a receipt dated 03.08.2014 in the presence of witnesses. Accused and his father were not satisfied even with the said amount, which was returned to them, and on the contrary threatened the complainant and his father with dire consequences. On 05.08.2014, at 7:30 P.M., accused-applicants, armed with weapons and wooden sticks, trespassed into the house of complainant and on the instigation of accused Danish and his father Jafar Ali, assaulted the complainant and his father. On alarm being raised, accused persons fled away from the place of incident threatening the complainant and his father. 4. Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 : 2013 (1) NCC 1, 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. 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, 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 power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists. 5. There appears to be no illegality in the cognizance and summoning order as well as order passed by the revision court (orders under challenge). No interference is called for in the same at this stage, as would also be evident from the law laid down by Hon’ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 . Para 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. 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. 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 charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.” 6. The Court was taken through the contents of the complaint. From a bare perusal of complaint, it is apparent that foundation of criminal offence is laid against the present applicants in the instant case. Criminal proceedings pending against them, therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution. 7. It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicants, in the instant case, are unable to pass those tests. 8. Application under Section 482 Cr.P.C. is dismissed. Interim order dated 23.09.2016, passed by this Court, is hereby vacated. Liberty is, however, granted to the applicants to place all the factual pleas, which they have raised before this Court, before the trial court for securing their discharge / acquittal, at an appropriate stage. [Stay Vacation application no. 508 of 2017 also stands disposed of.]