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2018 DIGILAW 1893 (ALL)

Narendra Shishodiya v. State of U. P.

2018-08-30

KARUNA NAND BAJPAYEE

body2018
JUDGMENT : Karuna Nand Bajpayee, J. 1. This application u/s 482 Cr.P.C. has been moved on behalf of applicant seeking the quashing of order dated 27.7.2017 passed by the Judicial Magistrate-I, Hapur whereby application u/s 245(2) Cr.P.C. filed on behalf of applicant has been dismissed as well as entire consequential proceedings in Complaint Case No.1497 of 2015 (Tejpal Singh vs. Gunveer Rana and another), u/s 500 I.P.C., P.S.-Dhaulana, District-Hapur, pending in the court of Judicial Magistrate (First), Hapur. 2. List revised. Learned counsel for applicant as well as learned A.G.A. are present. None has appeared on behalf of opposite party no.2 despite repeated calls. In the wake of heavy pendency of cases in this Court where dockets are already bursting on their seams this Court does not see any justifiable reason to procrastinate the matter any further and deems it proper to decide the case on merits. 3. Heard learned counsel for applicant and learned A.G.A. 4. Submission of counsel for applicant is that perusal of entire complaint in fact does not constitute any offence so far as applicant Narendra Shishodiya is concerned. There is only at one place an oblique, bald and unsubstantiated allegation that the alleged said message, which according to the complainant amounted to defamation, was uploaded and spread in collusion with applicant. Submission is that the material or the evidence produced in the court does not contain any such element which may be said to constitute a substantive material evidence or a material which may be treated as incriminating evidence or relying upon which the conviction of the applicant may be upheld. Contention is that making allegation against somebody is one thing while producing material and evidence in support of the same is entirely a different matter. To allege that the defamatory message was uploaded in collusion with applicant is just a bald allegation which remains completely unsupported and unsubstantiated by any cogent material whatsoever. Submission is that actually the applicant has nothing to do with the message and even the perusal of the complaint and the evidence produced in the Court, does not prima facie constitute any offence against the applicant, and therefore, the continuation of impugned proceedings and the summoning of the accused-applicant on that basis is wholly unjustified and is simply an abuse of court's process, therefore, same deserve quashing. 5. Perused the record in the light of submissions made at the Bar. 5. Perused the record in the light of submissions made at the Bar. After perusing the record this Court finds substance in the submissions made by the applicant's counsel. This application has not been moved on behalf of other accused and therefore this Court abstains to give any finding or opinion regarding him but suffice it to observe at this stage that so far as applicant is concerned, there is hardly any substantive material available on record on the basis of which his summoning may be judicially vindicated. Facing a criminal prosecution is a serious thing and in fact by itself has a defamatory connotation and the people should not be summoned to face a criminal prosecution without at least prima facie evidence being available against them which appears to be so conspicuously lacking in the present case. In this regard we may usefully keep in perspective the law laid down by Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426, in which certain categories have been recognized on the basis of which the criminal proceeding against a certain party or the accused may be quashed. It was observed by the Hon'ble 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. (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. (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." 6. In the considered opinion of this Court, the allegations that have been made against the applicant in the complaint prima facie do not appear to have constituted any offence and this case falls in category no.(1) mentioned hereinabove, and therefore, the impugned proceedings against the applicant deserve quashing. So far as the impugned order dated 27.07.2017 is concerned, it does not appear to have been correctly passed. This is true that charges may be framed against a person even on the basis of suspicion but the suspicion ought to be reasonable and not vague and the same should emanate from material which may be judicially acted upon. Bald insinuations do not constitute a reasonable suspicion against anybody. This is true that charges may be framed against a person even on the basis of suspicion but the suspicion ought to be reasonable and not vague and the same should emanate from material which may be judicially acted upon. Bald insinuations do not constitute a reasonable suspicion against anybody. The material as was available on record was hardly of such nature on the basis of which criminal prosecution ought to have been initiated against the applicant, and therefore, this appears to be a fit case in which the application moved in the court below ought to have been allowed. 7. In view of above discussion, this Court feels it necessary in order to meet the ends of justice and also to avert the abuse of court's process to allow this application. 8. Application is allowed and the impugned order and proceedings going on against the applicant stand quashed. 9. It is clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court. 10. A copy of this order be certified to the lower court forthwith.