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2019 DIGILAW 2390 (ALL)

Santosh v. State of U. P.

2019-10-21

RAM KRISHNA GAUTAM

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JUDGMENT : Ram Krishna Gautam, J. Heard learned counsel for the applicants over this Application, moved under Section 482 of Code of Criminal Procedure, 1973 (In short 'Cr.P.C.'), by the applicants, with a prayer for quashing of impugned summoning order, dated 1.7.2019, passed by the Additional Chief Judicial Magistrate, Firozabad, thereby, entire criminal proceeding of Criminal Complaint Case No. 03181 of 2018, Smt. Guddi Devi vs. Indrapal & others, under Sections 354, 323 and 504 of Indian Penal Code (In short 'IPC'), Police Station Narkhi, District Firozabad, as well as learned AGA, representing State of U.P., and perused the record. 2. Learned counsel for the applicants argued that there is no injury nor any such occurrence ever occurred, but this complainant, by way of an application, under Section 156 (3) of Cr.P.C., was treated as complaint, wherein, above summoning order was passed. Occurrence was said to be of 28.7.2018, at 2.00 PM, and this delayed report was filed on 26.9.2018, under Section 156 (3) of Cr.P.C and this summoning order was passed against fact on record. Applicants have already filed a case against the complainant and her family members, wherein, this accusation was levelled that some money was advanced and when demanded back this false accusation was threatened and subsequently was got lodged. Hence, this was misuse of process of law and as such by means of this Application, under Section 482, a prayer for exercise of inherent power by this Court for setting aside summoning order as well s entire criminal proceeding of complaint case, aforesaid, has been made by the applicants. 3. Learned AGA, representing State of U.P., has opposed this Application. 4. From very perusal of the summoning order, it is apparent that the accused persons have been summoned for offences, punishable, under Sections 354, 323 and 504 of IPC for which there is no precedent of having medico legal report because the ingredient of physical assault with complainant was there, and a complaint can be made without there being any medico legal report. The complainant, in her application, under Section 156(3) of Cr.P.C., has categorically said when the complainant was sleeping in her house and her younger son had gone somewhere, Indrapal, did criminally trespass into the house, and caught-hold the complainant, committed rape with her, extending threat of life by putting Tamancha (country made pistol) on her and on making rescue call, shut her mouth and threatened of killing all family members, in case of making any complaint of the incident, thenafter, ran away from the spot. She made a complaint to her husband, but owing to family reputation, matter was not reported to the police. Indrapal, taking benefit of above situation, continued to extend threat to the complainant by using different numbers by Cell Phones. Thenafter, an application, under Section 156 (3) of Cr.P.C. was moved, wherein complainant was examined, under Section 200 of Cr.P.C. and two witnesses, were examined, under Section 202 of Cr.P.C, who have corroborated and reiterated the contentions, made in the complaint, on the basis of which impugned summoning order was passed. Previous proceeding filed by the accused persons reveals that there were intimate relation between the parties, but because of demanding back of money, advanced, this case was came to be filed. Meaning thereby, both sides were acquainted with each other, but merely taking a ground of demanding back of money advanced, the applicants cannot seek indulgence of this Court, for exercise of inherent power, under Section 482 of Cr.P.C. Moreso, it is not expected from this Court to meticulously analyze evidences at this juncture, rather it is a question to be decided at the time of trial by the Trial court. 5. 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. 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. 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". 6. 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". 6. 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". 7. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 8. In view of what has been discussed above, this Application, being devoid of merits, deserves dismissal and stands dismissed accordingly.