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2017 DIGILAW 52 (ALL)

Shiv v. State of U. P.

2017-01-05

ANIL KUMAR SRIVASTAVA-II

body2017
JUDGMENT Anil Kumar Srivastava-II,J. Heard Shi Girish Chandra Sinha, learned counsel for the petitioners, Shri Sampurnanand Shukla, learned counsel for the opposite party no.2 , learned AGA and perused the record. 2. The petition has been filed with the prayer to quash the proceedings of Complaint Case No. 729 of 2006, Rakesh Kumar Vs. Triloki Nath and others under sections 147, 352, 504, 506 and 487 IPC, P.S. Hathgawan, District Pratapgarh pending in the Court of Additional Chief Judicial Magistrate, Kunda, Pratapgarh and also summoning order dated 23.8.2007 passed by the learned Magistrate. 3. It appears that an application under section 156 (3) CrPC was moved by the opposite party no. 2 against the petitioners alleging therein that co-tenure holder with his brother over plot no. 574 situate in village Vishiya, P.S. Hathgawan, District Pratapgarh on 1.4.2006 at about 5.00 a.m., the petitioners alongwith some unknown persons have stolen the crop which was sown on 10 bishwa. When the complainant went to see the spot and resisted, then they criminally intimidated him. An application under section 156 (3) CrP.C was treated as complaint. Thereafter, learned Magistrate has passed the impugned order after recording the statements of the complainant under section 200 Cr.P.C. and witnesses under section 202 Cr.P.C. 4. Learned counsel for the petitioners submits that the learned Magistrate has not exercised his jurisdiction properly. The order nowhere shows the application of judicial mind in summoning the accused. It is further submitted that the complainant possessed plot no. 574. Thereafter, Writ Petition No.643 (Cons) of 2003, Ram Dularey Vs. Deputy Director of Consolidation and others was filed, wherein an interim order was passed by this Court on 6.6.2003 to the effect that "till then the possession of plots in question i.e. Gata nos. 574 and 274 shall not be disturbed on the spot." It is further submitted that the petitioners are themselves in possession over the plot in question. There is no question of committing any theft of the crop as they themselves are in possession over the plot in question. It is further submitted that earlier also every year a complaint was filed by the brother of the complainant, which was dismissed by the court. 5. Per contra, learned counsel for the opposite party no. 2 submits that the learned Magistrate has rightly summoned the accused. It is further submitted that the opposite party no. It is further submitted that earlier also every year a complaint was filed by the brother of the complainant, which was dismissed by the court. 5. Per contra, learned counsel for the opposite party no. 2 submits that the learned Magistrate has rightly summoned the accused. It is further submitted that the opposite party no. 2 is in possession over plot no. 574. Consolidation proceedings have taken in the village wherein the possession over plot no. 574 was handed over to the opposite party no. 2. The petitioners have committed theft of the crop. Thereafter the complaint was filed. 6. Relevant portion of the impugned order of the learned Magistrate reads as under: - %hnd1%"izkFkhZ us rFkk lk{khx.kksa us vius C;ku v-/kkjk 200 o 202 n-iz-l esa ifjokn i= ds dFkuksa dk leFkZu fd;k gSA bl izdkj mDr vfHk;qfDr x.k ds fo: } izFke n`"V;k /kkjk 147] 352] 504] 506] 427 Hkk-n-l ds vUrxZr dk;Zokgh djus gsrq i;kZIr vk/kkj gS A vkns'k vfHk;qDrx.k f=yksdukFk] guqeku izlkn] eqds'k] Vyyw] jke [ksykou egs'kk mQZ [kwVh] f'ko dqekjh] jke dyh] 'kkafr nsoh dks tqeZ vk-/kkjk 147] 352] 504] 506] 427 Hkk-n-l vUxZr fopkj.k gsrq ryc fd;k tkrk gSA vfHk;qDrx.k lEeu }kjk ryc gks ifjoknh lEeu gsrq vko';d iSjoh ,d lIrkg esa djsa] rFkk xokgks dh lwph iznku djs vkSj okn iSjoh vfHk;qDrx.k dks fu;ekuqlkj lEeu tkjh fd;k tk;A i=koyh okLrs gk- iqfyl eqfYte fnukad 25-9-07 dks is'k gksA g- viBuh; ,-lh-ts-,e dq.MkA"%hnd2% 7. In R. P. Kapur v. State of Punjab [ AIR 1960 SC 866 ], the Apex Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: "(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 8. The powers possessed by the High Court under section 482 of the Code 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. 8. The powers possessed by the High Court under section 482 of the Code 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; more so, 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 cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage." Hon'ble Supreme Court in Amit Kapoor Vs. Ramesh Chander and another, (2013) 1 SCC Cri) 986 has laid down certain principles in respect of exercise of jurisdiction under section 482 Cr.P.c.. some of those principles, which are relevant t0 the facts of the instant cases, can be summarized as below: - "(i) 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. (ii) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. (iii) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. (iii) Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. (iv) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Cort is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice." 9. In Rajiv Thapar and others V. Madan Lal Kapoor (2013) 3 SCC 330 , para 28 of the said ruling is reproduced herein below for convenience: - "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. 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." 10. Learned Magistrate was required to atleast mention in the order about the prima facie satisfaction for summoning the accused. Learned Magistrate was required to atleast mention in the order about the prima facie satisfaction for summoning the accused. The order must reflect that the learned Magistrate has exercised his jurisdiction in accordance with law after satisfying himself about the prima facie allegations made in the complaint. The accused cannot be summoned mechanically merely by writing that perused the statements under section 200 and 202 Cr.P.C. 11. So far as the possession over plot no. 574 is concerned, this Court is not giving any finding regarding possession over the plot in question in proceedings under section 482 Cr.P.C., but the interim order passed by this Court in writ petition no. 643 (Cons) of 2003 on 6.6.2003 prima facie reflects that the possession of the petitioner i.e. Ram Dularey son of Shri Surya Bali was protected by this Court. The incident in question relates to 1.4.2006, which shows, prima facie, at this stage subject to any finding by any competent court that on the date of incident in view of the order passed by this Court in the aforesaid writ petition, possession of Ram Dularey one of the petitioners was protected. Learned Magistrate has failed to properly appreciate the matter in question. Accordingly, the summoning of the petitioners is vitiated and is against law. 12. Accordingly, the petition is allowed. Proceedings of Complaint Case No. 729 of 2006, Rakesh Kumar Vs. Triloki Nath and others under section 147, 352, 504, 506 and 487 IPC, P.S. Hathgawan, District Pratapgarh pending in the court of the Additional Chief Judicial Magistrate, Kunda, Pratapgarh and also summoning order dated 23.8.2007 passed by the learned Magistrate are hereby set aside.