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2019 DIGILAW 245 (ALL)

Mahboob v. State of U. P.

2019-01-30

SANJAY KUMAR SINGH

body2019
JUDGMENT : Sanjay Kumar Singh, J. 1. Heard Sri Ravindra Sonker, learned counsel for the applicants and learned A.G.A. for the State. 2. This application under Section 482 Cr.P.C. has been preferred by the applicants with a prayer to quash the impugned summoning order dated 27.09.2018, passed by Judicial Magistrate, Sahaswan, District Budaun as well as the entire proceeding of Complaint Case No. 75 of 2018 (Acchan Miyan vs. Mahboob and others), under Sections 323, 504, 506, 452 I.P.C., Police Station Sahaswan, District Budaun, pending in the court of Judicial Magistrate, Sahaswan, District Budaun. Basic Facts 3. Facts in brief of the case is that opposite party no. 2 filed an application under Section 156(3) Cr.P.C. on 09.04.2018 before the Judicial Magistrate, Sahaswan, District Budaun with a prayer to issue direction to the incharge Inspector of Police Station Sahaswan, District Budaun to lodge the first information report against the present applicants raising allegations that the complaint is the resident of same locality where the applicants reside. In the complaint it is said that there was a dispute relating to money transaction between the complainant and the applicant no. 4 & others but later it was settled on the intervention of the neighbours. On 02.04.2018 at about 06:00 P.M. when the complainant was lying on a cot in his house and his wife was cooking food, the accused persons entered into his house along with weapons and started abusing the complainant. On making objection, the accused persons assaulted him and his wife namely Smt. Chanda Bee due to which they have received injuries. It is further alleged that on raising alarm by the wife of the complainant, several other persons of locality namely Sakhi Ahmad, Shabab and others rushed to the place of occurrence and saved the complainant and his wife, Smt. Chanda Bee. It is submitted that on the next day, the complainant got himself medically examined and medical report along with application was sent to the police but no action was taken. Injury report of the complainant, Acchhan Miyan is on record which is appended as Annexure No. 2 to the affidavit filed in support of this application and on perusal of the same it is clear that the complainant Acchhan Miyan was examined by Medical Officer of the Government Hospital on 03.04.2018 at 09:30 P.M., and he received four injuries on his person. The said application dated 09.04.2018 of the complainant was treated as complaint which was registered as Complaint Case No. 75 of 2018 in the court of Judicial Magistrate, Sahaswan, District Budaun by order dated 03.07.2018. 4. Learned Magistrate has recorded the statement of the complainant under Section 200 Cr.P.C. on 30.08.2018 in which he retreated the version as mentioned in his application dated 09.04.2018. From the side of complainant witnesses Mohd. Fasal, Smt. Chanda Bee and Sakhi Ahmad have been examined under Section 202 as PW-1, PW-2 & PW-3 respectively on 07.09.2018 are on record and appended as Annexures no. 2, 3 and 4 respectively to the affidavit filed in support of this application. Learned Magistrate by order dated 27.09.2018 summoned the applicants under Sections 452, 323, 504, 506 I.P.C. to face trial. Submissions on behalf of applicants 5. It is submitted by the learned counsel for the applicants that prior to moving of application dated 09.04.2018, under Section 156(3) Cr.P.C. by the complainant of this case, the applicant no. 4 has also filed an application under Section 156(3) Cr.P.C. against the opposite party no. 2 and others. On 26.03.2018 it was also treated as complaint bearing Complaint Case No. 25 of 2018, on which learned Judicial Magistrate, Sahaswan, District Budaun after recording the statement of applicant no. 4 and his witnesses under Sections 200 and 202 Cr.P.C. respectively, summoned the opposite party no. 2 and others under Sections 323, 504 and 506 I.P.C. by summoning order dated 18.08.2018 and they are facing trial. Copy of the application dated 26.03.2018, under Section 156(3) Cr.P.C. of applicant no. 4 and summoning order dated 18.08.2018 passed by learned Judicial Magistrate, Sahaswan, District Budaun against opposite parties no. 2 and others are appended as Annexures no. 6 and 7 to the affidavit filed in support of application. 6. On the aforesaid fact, it is submitted by learned counsel for the applicants that the allegation in the impugned complaint against the applicants is false and infact true fact is that applicant no. 4 is a permanent resident of Delhi. On 04.03.2018, the applicant no. 4 came in the village of complainant to participate in the marriage, where complainant and other 13 persons associated with him for hatching conspiracy and assaulted the applicant no. 4, who in order to save his life entered into the house of his sister-in-law. 4 is a permanent resident of Delhi. On 04.03.2018, the applicant no. 4 came in the village of complainant to participate in the marriage, where complainant and other 13 persons associated with him for hatching conspiracy and assaulted the applicant no. 4, who in order to save his life entered into the house of his sister-in-law. Then the complainant side entered into the said house and assaulted him by tearing the clothes and also looted Rs. 40,000/-. It is submitted that the injury report as filed by the opposite party no. 2/complainant is fictitious and injuries are simple in nature. The witnesses of complainant are interested witnesses who cannot be relied upon. It is submitted that the launching of criminal proceeding by the opposite party no. 2 against the applicants is abuse of the process of law. No offence under Sections 452, 323, 504, 506 I.P.C. are made out against the applicants. The learned Magistrate has summoned the applicants by impugned summoning order dated 27.09.2018 is without recording his satisfaction. 7. Learned counsel for the applicants has placed reliance upon the judgment of this Court in the case of Mahboob & Ors. vs. State of U.P. Through Secy. Home Department Civil Secretariat & Anr., 2016 Law Suit (Allahabad) 3768, decided on 20.12.2016, in which the co-ordinate Bench of this Court has quashed the summoning order with a direction to pass fresh order because in that case, learned Magistrate has passed a very cryptic order simply by saying that from the statement of the complainant as well as other witnesses recorded under Sections 200 and 202 Cr.P.C. there are no sufficient ground to summon the accused persons. 8. Learned counsel for the applicants has further placed reliance upon the judgment of Apex Court passed in the case of Eicher Tractors Ltd. vs. Harihar Singh, 2008 Law Suit (S.C.) 1643, wherein the Apex Court relying on the parameters indicated in category (7) of Bhajan Lal's case and quashed the proceedings under Sections 420, 468, 471 I.P.C. Submissions on behalf of State 9. Per contra learned A.G.A. has submitted that the facts of the aforesaid two judgments, reliance upon which has been placed by learned counsel for the applicants are based on different facts and circumstances. Per contra learned A.G.A. has submitted that the facts of the aforesaid two judgments, reliance upon which has been placed by learned counsel for the applicants are based on different facts and circumstances. It is submitted that in the present case, there are four injuries on the persons of the complainant, which is also apparent from the injury report dated 03.04.2018 of the opposite party no. 2. The learned Magistrate has passed the impugned summoning order dated 27.09.2018 after considering the entire facts narrated in the complaint as well as the affidavit, copy of application sent to S.S.P., copy of injury report and receipt of registered post as well as statements of the complainant and witnesses namely PW-1 Mohd. Fasal, PW-2 Smt. Chanda Bee and PW-3 Sakhi Ahmad. Learned A.G.A. has further submitted that the learned Magistrate has recorded the reason of satisfaction for summoning the accused applicants to face trial and also mentioned that from the material evidence available on record, prima-facie evidence against the applicants under Sections 323, 504, 506, 452 I.P.C. are made out, therefore, there is no illegality in the impugned summoning order dated 27.09.2018 and as such the present application is liable to be dismissed. Discussion 10. After having heard the arguments advanced on behalf of learned counsel for the parties and examining the record, I find that the requirement of summoning the accused under Section 204 Cr.P.C. as settled by the Apex Court, has fulfilled by the learned Magistrate in the impugned order dated 27.09.2018. It is well settled that at the stage of summoning under Section 204 Cr.P.C., learned Magistrate is neither required to go into the merits and de-merits of the case nor to examine the genuineness of the allegations or otherwise. At the stage of summoning the accused, learned Magistrate is required to see, whether on taking the entire contents of the complaint on their face value as it is the prima-facie offence is made out against the accused or not. 11. In this case the complainant has received injuries. The injury report is on record. Accepting the contents of the complaint as true, this Court feel that prima-facie offence against the applicants are made out. 12. It is also well settled that the disputed questions of fact and the defence of the accused cannot be taken into consideration at the pre-trial stage. The injury report is on record. Accepting the contents of the complaint as true, this Court feel that prima-facie offence against the applicants are made out. 12. It is also well settled that the disputed questions of fact and the defence of the accused cannot be taken into consideration at the pre-trial stage. After going through the facts of the case of Mahboob & Ors. vs. State of U.P. Through Secy. Home Department Civil Secretariat (supra) and Eicher Tractors Ltd. vs. Harihar Singh (supra), I find that the fact of both the cases are on different footing. There was no injury report also in the aforesaid cases. The manner of passing summoning order, as it was in the case of Mahboob & Ors. vs. State of U.P. (supra) was also different. In that case, summoning order was cryptic and very laconic in nature, while the impugned order dated 27.09.2018 of this case is otherwise and the same has been passed considering all the material evidence on record. 13. The Apex Court in R.P. Kapur vs. State of Punjab, AIR 1960 SC 866 , summarized come categories of cases where inherent power can and should be exercised to quash the proceedings:- (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 14. The Apex Court in State of Bihar and another vs. P.P. Sharma I.A.S., and another, 1992 SCC (Cri.) 192, has observed that Supreme Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. High Court in exercise of power under Article 226 and 227 of the Constitution of India cannot assume such jurisdiction and put an end to the process of investigation and trial provided under the law. 15. The Apex Court in Zandu Pharmaceutical Works Ltd., and Ors. vs. Mohd. High Court in exercise of power under Article 226 and 227 of the Constitution of India cannot assume such jurisdiction and put an end to the process of investigation and trial provided under the law. 15. The Apex Court in Zandu Pharmaceutical Works Ltd., and Ors. vs. Mohd. Sharaful Haque and another, 2005 SCC (Cri.) 283, has observed that when a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. Conclusion 16. Considering the nature of allegations, material available on record and findings recorded by the learned Magistrate, the present case does not fall in the category recognized by the Apex Court, where this Court can exercise its inherent power under Section 482 Cr.P.C. to quash the criminal proceeding at the initial stage. It is well settled by the Apex Court in catena of judgments that power under Section 482 Cr.P.C. should be used sparingly only to prevent the abuse of the process of the Court, when there is a patent error or gross injustice. On accepting the facts of the present case as mentioned in the complaint, as true, taking the same in their entirety, it cannot be said that no cognizable offence is made out against the applicants. 17. In view of the above, I do not find any merit in the arguments so advanced on behalf of applicants. The impugned order dated 27.09.2018 does not suffer from any illegality and there is no abuse of the process of law. The application lacks merit, it is accordingly dismissed.