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2019 DIGILAW 2168 (ALL)

Kharag Bahadur Chauhan v. State Of UP

2019-09-18

RAM KRISHNA GAUTAM

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JUDGMENT : Ram Krishna Gautam, J. This Application, under Section 482 of Criminal Procedure Code,1973 (In short 'Cr.P.C.'), has been filed by the applicants, Kharag Bahadur Chauhan and three other accused persons, against State of U.P and another, with a prayer for quashing of the entire criminal proceeding and for setting aside summoning order, dated 20.5.2019, passed by the Additional Chief Judicial Magistrate-I, Ballia, in Complaint Case No. 1791 of 2018, Ram Vilash Chauhan vs. Kharag Bahadur Chauhan and others, under Sections 323, 427, 452, 504, 506 of Indian Penal Code (In short 'IPC') of Police Station- Rasra, District Ballia, 2. Learned counsel for the applicants argued that it was a false implication. There was enmity with the complainant. Both sides are from one and same family. Just to harass the applicants, this complaint was filed wherein interested witness, who were of same family, were got examined, under Section 202 of Cr.P.C., on the basis of which, impugned summoning order was passed. There was neither any injury nor damage of property, because of assault, is on record. Hence, this Application with above prayer. 3. Learned AGA, representing the State of U.P., has opposed this proceeding. 4. Having heard learned counsel for both sides and gone through the summoning order, it is apparent that the same was passed by the Magistrate, after examining complainant, under Section 200 of Cr.P.C. and his two witnesses, under Section 202 of Cr.P.C. Contention of the complaint has been reiterated in those testimonies and it was with specific accusation that on 24.8.2018, at 10.00 AM, Kharag Bahadur, alongwith others, tried to encroach upon his land by planting Bamboo plant over it, which was protested by the complainant. Reacting to it, on being exhorted by applicant, Kharag Bahadur Chauhan, co-accused, Anil Kumar, Vishal Kumar, Nand Lal and others, abused complainant and did criminal trespass into his house. They assaulted him and, thereby, damaged the household goods. The occurrence was instantly reported at local Police Station, but to no avail. Thus, this complaint, through Registered Post, was sent to the Superintendent of Police, but that too yielded no action. Hence, this complaint was moved before the Additional Chief Judicial Magistrate and on the basis of testimonies, these applicants were summoned for offences, punishable, under Sections 452, 323, 504, 506, 427 IPC. 5. Thus, this complaint, through Registered Post, was sent to the Superintendent of Police, but that too yielded no action. Hence, this complaint was moved before the Additional Chief Judicial Magistrate and on the basis of testimonies, these applicants were summoned for offences, punishable, under Sections 452, 323, 504, 506, 427 IPC. 5. In exercise of inherent power, conferred by Section 482 of Cr.P.C., this Court is not expected to analyze factual evidence, which is to be placed during trial before the Trial court. Prima facie, there was evidence, which was recorded, under Sections 200 and 202 of Cr.P.C., on the basis of which impugned summoning order was passed. 6. Saving of inherent power of High Court, as given under Section 482 Cr.P.C, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 7. Meaning thereby this inherent power is with High Court (I) to make such order as may be necessary to give effect to any other order under this Code (II) to prevent abuse of the process of any Court (III) or otherwise to secure the ends of justice. But Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, (2010) 6 JT 588 SC: (2010) 6 SCALE 767 : 2010 Cr. LJ 3844 has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent Hamida v. Rashid, (2008) 1 SCC 474 , hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 , the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 8. Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) CriLJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) CriLJ 1005: AIR 1989 SC 1 , Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not". 9. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 10. In view of what has been discussed above, this proceeding, under Section 482 of Cr.P.C., lacks merits and as such, this Application, under Section 482 of Cr.P.C., stands dismissed. 11. However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P., 2004 57 AllLR 290 as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P., (2009) 3 ADJ 322 (SC) 12. State of U.P., 2004 57 AllLR 290 as well as judgment passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P., (2009) 3 ADJ 322 (SC) 12. For a period of 30 days from today, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.