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2019 DIGILAW 2392 (ALL)

Shiv Sahai v. State of U. P.

2019-10-21

RAM KRISHNA GAUTAM

body2019
JUDGMENT : Ram Krishna Gautam, J. Heard learned counsel for the applicants over this Application, moved by the applicants, under Section 482 of the Code of Criminal Procedure, 1973, (In short 'Cr.P.C.'), with a prayer for setting aside summoning order, dated 26.10.2018, passed by the court of Ist Additional Chief Judicial Magistrate, Shahjahanpur, in Criminal Complaint Case No. 5201 of 2016, Kallu vs. Shiv Sahai and others, under Sections 148, 149, 452, 380 and 506 of Indian Penal Code (In short 'IPC'), Police Station-Panaur, District Shahjahanpour, thereby, quashing entire criminal proceeding of above case, as well as learned AGA, representing the State of U.P. and perused the record. 2. Learned counsel for the applicants argued that this was a malicious prosecution and misuse of process of law. A complaint case was filed by the applicants' side against the present complainant side as Complaint Case No. 354 of 2016, wherein, on the date of occurrence, i.e., 21.4.2016, at about 07:00 AM, there occurred some quarrel between the kids and when the complainant went there to get the matter settled, Kallu, Sonelal, Natthu, Sudesh and Raju, armed with Lathi and Danda, came there. They abused complaint and did assault. They have been summoned for offences, punishable, under Sections 323, 504, 506 IPC and in counter-blast, present complaint has been filed by the other side, wherein, there was variance in the statements of complainant and his witnesses. There was no medico legal report nor any injury report, even then, impugned summoning order was passed. Hence, this Application, with above prayer. 3. Learned AGA, representing State of U.P., opposed this Application. 4. Perusal of the complaint and summoning order reveals that for the occurrence of 21.4.2016, already a case was got registered as NCR upon the report of the present applicants' side, wherein order for investigation has been passed and for same occurrence Criminal Complaint Case No. 354 of 2016 was filed in which above summoning order was passed. Meaning thereby, it is the contention that for occurrences of the same date, there were two cases against each other. Meaning thereby, it is the contention that for occurrences of the same date, there were two cases against each other. Hence, this case is being said to be counter-blast of other case, which is against fact, as this occurrence is said to be of 15.7.2016, at about 8.00 PM, while, the complainant was at his home, Shiv Sahai, Sukhram, Shivram, Bhure @ Dinne @ Dinesh, Raju, Vimlesh, Ramnath, Mukesh, Jasant and Ramnath, armed with single barrel gun, by making unlawful assembly, came at the home of the complainant, wherein a riot was committed, then after, above occurrence was said to have been committed, which was punishable, under Sections 148, 149, 452, 380 and 506 IPC. Complainant, in his statement, recorded, under Section 200 Cr.P.C., and his two witnesses, examined by the Magistrate, under Section 202 of Cr.P.C., have reiterated the same version, as was mentioned in the complaint. Complainant's statement was supported by PW-1, Asha, PW-2, Dharam Singh and PW-3, Natthu, on the basis of which upon enquiry, the Magistrate passed impugned summoning order against Shiv Sahai, Sukhram, Shivram, Bhure @ Dinne @ Dinesh, Raju, Vimlesh, Ramnath, Mukesh, Jasant and Ramnath, for offences, punishable, under Sections 148, 149, 452, 380 and 506 IPC. Hence, prima facie there was sufficient evidence for passing above summoning order. At the time of summoning order, there required no meticulous analysis of evidences, rather a prima facie evidence was deemed to be sufficient for passing summoning order and it was there. Meticulous analysis of the evidence is not to be made by this Court, in exercise of inherent power, under Section 482 of Cr.P.C., while entertaining this Application, moved, under Section 482 of the Cr.P.C., rather this is to be seen by the trial court, at the time of trial. 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. 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 the discussed, herein above, this Application, under Section 482 of Cr.P.C., being devoid of merits, deserves to be dismissed and is dismissed accordingly. 9. 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) 10. 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.