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2017 DIGILAW 845 (ALL)

VIRENDRA v. STATE OF U. P.

2017-03-24

P.K.S.BAGHEL

body2017
JUDGMENT Hon’ble P.K.S. Baghel, J.—Three applicants have instituted this criminal miscellaneous application under Section 482 of the Code of Criminal Procedure (Cr.P.C.) for quashing of the proceedings of Complaint Case No. 2615 of 2016, Smt. Mamta v. Virendra and others, filed by the second respondent under Sections 323, 504, 506, 354, 379 I.P.C., pending in the Court of the Judicial Magistrate/ Additional Civil Judge (Junior Division), Deoria. 2. The essential facts are that the second respondent filed an application under Section 156(3) Cr.P.C., wherein she made a serious allegation that the applicants herein have assaulted her. The learned Magistrate after recording the evidence has summoned the applicants in the aforesaid sections. Aggrieved by the summoning order, the applicants have instituted (this application. 3. This application has been filed on the ground that the deponent of the affidavit filed in support of the application, namely, Ram Naresh, who is not a party in the present application, has two sons. The applicant No. 1- Virendra is his elder son and the applicant Nos. 2 and 3 are son and wife respectively of the applicant No. 1. Surendra is younger son of Ram Naresh and the second respondent is wife of Surendra. The applicant No. 1 and his family is residing in the village and the deponent (the father of the applicant No. 1) is also living with them. Younger son of the deponent, namely, Surendra is in service at Bhagalpur, Bihar and lives there with his family. 4. It is stated that the deponent of the affidavit (father of the applicant No. 1) is a retired Government servant and he used to give some amount from his pension to the family of the applicant No. 1. The second respondent and her husband had serious objection to it and they wanted half of the pension of the deponent. When the deponent did not agree with their demand, the second respondent and her husband came to his village and started quarrel with the applicant No. 1 on 09th July, 2016. They also assaulted the deponent Ram Naresh and the applicant No. 3, who were medically examined at P.H.C. Bhatni, District Deoria. A copy of their injury reports have been brought on record as annexure-1 to the affidavit. They also assaulted the deponent Ram Naresh and the applicant No. 3, who were medically examined at P.H.C. Bhatni, District Deoria. A copy of their injury reports have been brought on record as annexure-1 to the affidavit. It is stated that the applicant No. 3, wife of the applicant No. 1, went to lodge first information report in respect of the said incident but the local police did not register it. Hence, the applicant No. 3 filed a complaint, being Complaint Case No. 2154 of 2016, Sumitra Devi v. Surendra and others, before the Judicial Magistrate and on the basis of the said complaint, the learned Magistrate has summoned the second respondent and her husband for the offence under Sections 323, 504, 506, 452, 379 I.P.C. vide order dated 20th August, 2016. 5. It is further stated that when the second respondent came to know about the said fact, she with a view to harass the applicants filed the instant complaint case on the false allegation against the applicants in respect of the alleged incident, which had taken place on 09th July, 2016. It is averred in the affidavit that the second respondent had succeeded to obtain manipulated injury report from the Doctor. A copy of the said injury report is on the record as annexure-6 to the affidavit. On the basis of the said complaint, Complaint Case No. 2615 of 2016, Smt. Mamta v. Virendra and others, has been registered, and the learned Court below vide summoning order dated 01st February, 2017 has summoned the applicants for the offence under Sections 323, 504, 506, 354, 379 I.P.C.. 6. Sri V.M. Zaidi, learned Senior Counsel appearing for the applicants, submits that the complaint filed by the second respondent is a malicious prosecution and it is liable to be quashed by this Court exercising its power under Section 482 Cr.P.C. Sri Zaidi has placed reliance on the judgments of the Supreme Court in the cases of Mahindra and Mahindra Financial Services Ltd. and another v. Rajiv Dubey, (2009) 1 SCC 706 and State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335. 7. Learned A.G.A. has vehemently submitted that there are serious allegations against the applicants. He has drawn the attention of the Court to the injury report, which is on the record. 7. Learned A.G.A. has vehemently submitted that there are serious allegations against the applicants. He has drawn the attention of the Court to the injury report, which is on the record. He submits that in view of the allegations against the applicants, no interference is warranted under the inherent jurisdiction of this Court under Section 482 Cr.P.C. 8. I have heard rival submissions of the learned counsel for the parties and perused the material on record. 9. The scope and jurisdiction of this Court under Section 482 Cr.P.C. is no more res integra. The Supreme Court in its long course of judgments has settled the limitations of powers of this Court under Section 482 Cr.P.C. The case of Bhajan Lal (supra) has been considered by the Supreme Court in a recent decision in the case of Sonu Gupta v. Deepak Gupta and others, (2015) 3 SCC 424 , wherein the Supreme Court held that power of quashing under Section 482 Cr.P.C. should be exercised very sparingly and with circumspection and in the rarest of rare cases. In the said case, the Supreme Court has followed the law laid down in Bhajan Lal’s case. The relevant part of the judgment of Sonu Gupta (supra) reads as under: “14. The learned counsel also placed reliance upon judgments in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 and also in Thermax Ltd. v. K.M. Johny, (2011) 13 SCC 412 : (2012) 2 SCC (Cri) 650, in support of the proposition that power to quash criminal prosecution is justified where a criminal proceeding is instituted with mala fide or ulterior motives. In Bhajan Lal this Court did indicate in para 102, seven kinds of cases where Court may exercise power to quash criminal prosecution but in respect of the seventh category relating to mala fides, this Court used the expression — “manifestly attended with mala fide” and further explained in paras 103 and 104 that the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. Paras 103 and 104 are reproduced hereunder: (Bhajan Lal case, SCC p. 379) “103. Paras 103 and 104 are reproduced hereunder: (Bhajan Lal case, SCC p. 379) “103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. 104. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complainant. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Penal Code, namely, under Section 182 or 211 or 500 besides becoming liable to be sued for damages.” 10. In Taramani Parakh v. State of Madhya Pradesh and others, (2015) 11 SCC 260 , the Supreme Court ruled that the interference under Section 482 Cr.P.C. can be justified when the allegations are absurd or do not make out any case or there is abuse of the process of law. However, in case there is triable case, the Court does not go into reliability or otherwise of the version or the counter-version. The Court referring to the earlier judgment in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2013) 1 SCC (Cri) 986 : (2012) 4 SCC (Civ) 687, has held as under: “11. Referring to earlier decisions, in Amit Kapoor v. Ramesh Chander, it was observed: (SCC pp. 482-84, para 27) “27.1. The Court referring to the earlier judgment in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2013) 1 SCC (Cri) 986 : (2012) 4 SCC (Civ) 687, has held as under: “11. Referring to earlier decisions, in Amit Kapoor v. Ramesh Chander, it was observed: (SCC pp. 482-84, para 27) “27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. 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. 27.3. 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. 27.4. 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 loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.....” 11. Applying these principles in the case in hand, I am of the view that the defence of the applicants cannot be considered by this Court at this stage. As noticed above, the parameters for quashing the proceedings of a criminal case are well established. In this case it cannot be said that there is no triable issue. Applying these principles in the case in hand, I am of the view that the defence of the applicants cannot be considered by this Court at this stage. As noticed above, the parameters for quashing the proceedings of a criminal case are well established. In this case it cannot be said that there is no triable issue. Moreover, in this proceeding the Court cannot go into the authenticity of the rival versions, but on the version of the complaint made by the second respondent it cannot be said that the criminal proceedings initiated by her amounts to an abuse of the Courts’ process, as observed by the Supreme Court in the case of Bhajan Lal (supra) in paragraphs 103 and 104 that power of quashing should be exercised very sparingly and in the rarest of rare cases. 12. Insofar as the judgment of Mahindra and Mahindra Financial Services Ltd. (supra) is concerned, the said case arose out of Section 138 of the Negotiable Instruments Act, 1881 and the Court has found that the said complaint was made with ulterior motive. It is a well-settled law that only ratio of the judgment is binding and the facts of each case have to be seen. The facts of the said case are totally distinguishable in the present case as there were several cheques issued which were dishonoured so an offence was made out under Section 138 of the Negotiable Instrument Act. 13. After careful consideration of the material on record, I find that the learned Magistrate has not committed any error in passing the impugned order summoning the applicants. Hence, in view of the above, no case for interference under Section 482 Cr.P.C. is made out. 14. The applicant No. 3 is a lady. Having regard to the facts of this case, I am of the view that in case she appears before the Court below, her application for bail will be considered, if possible on the same day. In case she moves the application within three weeks from the date of receipt of a certified copy of this order, no coercive action shall be taken against her. 15. With the aforesaid observations, the application is rejected. 16. No order as to costs.