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2019 DIGILAW 2579 (ALL)

Shankar Prasad Agrahari v. State of U. P.

2019-11-18

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. Heard learned counsel for the applicant over this Application, moved under Section 482 of Code of Criminal Procedure, 1973, by the applicant, Shankar Prasad Agrahari, against State of U.P. and Vijai Bahadur Saini, challenging summoning order, dated 29th August, 2019, passed by the Additional Chief Judicial Magistrate, Varanasi, in Complaint Case No. 2278 of 2018, under Section 420 of Indian Penal Code of Police Station- Sarnath, District-Varanasi, pending in the court of Additional Chief Judicial Magistrate, Varanasi. 2. Learned counsel for the applicant argued that the impugned summoning order has been passed without any evidence on record. Very contention of the complainant was not substantiated by the witnesses as there were many contradictions in the statements. More so, alleged payment being said to have been made in 6th and 7th instalments when there was period of Notebandi and it was not possible to withdraw such huge amount. This itself shows falsity of the complainant. Witnesses of the complainant are his relatives and their statements are full of inconsistency. Complainant himself was a Principal Peon of the Bank, concerned, and as such he was fully aware of the functioning of the Bank, even then, this accusation is there. Hence, this Application, under Section 482 of Cr.P.C., before this Court for exercise of inherent power, with a prayer for setting aside impugned summoning order. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. From very perusal of the impugned summoning order, it is apparent that the same has been passed by the Magistrate on the basis of the statements recorded, under Sections 200 and 202 of Cr.P.C., in enquiry made by the Magistrate and in all those statements, there is corroboration of contention of complaint. There is nothing against those statements before the Magistrate and on the basis of those statements above impugned summoning order was passed. Factual correctness or incorrectness or appreciation of same cannot be made, under Section 482, in exercise of inherent power by this Court because the Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767 : 2010 Cr. Factual correctness or incorrectness or appreciation of same cannot be made, under Section 482, in exercise of inherent power by this Court because the Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (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". 5. 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". 5. Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 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) Cr LJ 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". 6. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 7. In view of what has been discussed above, there is no ground of any indulgence to be granted by this Court. Accordingly, this Application, under Section 482 of Cr.P.C. deserves dismissal, being devoid of merits, and it stands dismissed accordingly. 8. However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his 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. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 9. For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below, within the aforesaid period, coercive action shall be taken against them.