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2019 DIGILAW 254 (UTT)

Shiv Prakash v. State of Uttarakhand

2019-03-29

N.S.DHANIK

body2019
JUDGMENT : 1. This Criminal Miscellaneous Application, under Section 482 Cr.P.C., is preferred to quash the charge-sheet dated 17.12.2011, cognizance and summoning order dated 12.3.2013 as well as the entire proceedings of Criminal Case No. 639 of 2012, State v. Shiv Prakash Sharma & Another, under Sections 457 and 380 IPC, pending in the Court Judicial Magistrate, Kashipur, District Udham Singh Nagar. 2. Facts, in brief, are that the accused applicant no. 1 and the complainant/respondent no. 2 are real brothers. Respondent no. 2 lodged an FIR, on 12.11.2011 against the applicant no. 1 and his son (applicant no. 2 herein), stating that the House No. 158, Lahoriyan, Kashipur is under the joint ownership of the applicant no. 1 and the respondent no. 2 where both are residing; the applicant no. 1 keep quarrelling with the complainant on trivial issues; in order to end the differences and the quarrel, the complainant shifted his family at other place; however, he himself used to keep visiting the aforesaid house; on 14.10.2011, applicant no. 1 did not allow the complainant to enter into the house; complainant gave information of this incident to the police, but no action was taken; consequently, he moved application to the Superintendent of Police on 1.11.2011; thereafter on 5.11.2011, the applicants allegedly stolen the articles of the complainant which were kept in the said house. After investigation, the police submitted the chargesheet against the accused applicants and thereafter the learned Additional Chief Judicial Magistrate, Kashipur, vide the impugned order, took cognizance of the offence and summoned the accused applicants to face the trial for the offences under Sections 457 and 380 IPC. Aggrieved thereby, the present application. 3. Learned Counsel for the accused applicants submitted that on account of the property dispute, the complainant has lodged false FIR. He drew attention of this Court towards the copy of the Assessment Register of Tax of Buildings issued by Nagarpalika (Annexure No. 1), which reveals that the disputed property is in the name of applicant no. 1 and late Ram Prakash (who also happened to be the real brother of applicant no. 1). Learned Counsel further submitted that earlier also, false complaint case was filed by the complainant/respondent no. 2 against the applicants, which ultimately resulted in their acquittal. He also argued that in the present case, no recovery has been made from the accused applicants. 1 and late Ram Prakash (who also happened to be the real brother of applicant no. 1). Learned Counsel further submitted that earlier also, false complaint case was filed by the complainant/respondent no. 2 against the applicants, which ultimately resulted in their acquittal. He also argued that in the present case, no recovery has been made from the accused applicants. 4 .Learned State Counsel submitted that after investigation, the charge-sheet has already been submitted against the accused applicants and a prima facie case is made out and the trial must proceed. 5. Learned Counsel for the accused applicants argued that the Magistrate has issued the process and passed the summoning order in cyclostyled manner and without application of mind. No reasons have been recorded in the impugned order. 6. Learned Counsel for the informant refuted the above argument and submitted that the Magistrate is not required to record any reason. Learned Counsel placed reliance on the judgment of Hon’ble Supreme Court in State of Gujarat v. Afroz Mohammed Hasanfatta, dated 5.2.2019 (in Criminal Appeal No. 224 of 2019), wherein at paragraph 22, the Hon’ble Supreme Court has held as under: “In so far as taking cognizance based on the police report, the Magistrate has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating Officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the Investigating Officer and thereafter, charge sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190 (1)(b) Cr.P.C., where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge sheet is barred by law or where there is lack of jurisdiction or when the charge sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge sheet and for not taking on file……..” 7. Power under Section 482 Cr.P.C. requires great caution in its exercise. The scope of Section 482 Cr.P.C. has been clarified by the Hon’ble Apex Court time and again. A Constitution Bench of the Hon’ble Apex Court in that regard has elaborately discussed such scope in the case of Inder Mohan Goswami & Another v. State of Uttaranchal & others, (2008) 1 SCC (Cri) 259, and has held that inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers. However, the inherent power should not be exercised to stifle a legitimate prosecution. 8. Having considered the rival arguments advanced by learned Counsel for the parties and on perusal of the papers available on record, there is no reason to believe that the prosecution is mala fide, untenable and solely intended to harass the accused applicants. Therefore, the impugned order, charge-sheet and the ongoing trial against the applicants warrant no interference by this Court. 9. In view of what has been set forth above, I do not find any force in this petition. It is hereby dismissed. Interim order, if any, stands vacated. Therefore, the impugned order, charge-sheet and the ongoing trial against the applicants warrant no interference by this Court. 9. In view of what has been set forth above, I do not find any force in this petition. It is hereby dismissed. Interim order, if any, stands vacated. 10. It is made clear that any observation made by this Court is only for the purpose of deciding the present criminal miscellaneous application and the same shall not affect the trial in any manner.