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2019 DIGILAW 2593 (ALL)

Ashok Kumar v. State of U. P.

2019-11-19

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Ashok Kumar and Rinku, wife of Mukesh, against State of U.P. and Ramesh Chandra, with a prayer for setting aside summoning order, dated 1.7.2019, passed by the Court of Additional Chief Judicial Magistrate, court no. 6, Moradabad, in Complaint Case No. 4942 of 2018, Ramesh Chandra vs. Ashok Kumar and another, under Section 499 of IPC, Police Station- Chhajlet, District Moradabad, and the order of Revisional court, dated 31.8.2019, passed by the Sessions Judge, Moradabad in Criminal Revision No.124 of 2019, Ashok Kumar and another vs. State of U.P. and another. 2. Learned counsel for the applicants argued that the impugned summoning order was against facts on record. Ingredients of offence, punishable under Section 499 of IPC, were not fulfilled. Complaints, by applicants, were made for irregularities, committed by complainant-Village Pradhan and it can never amount an offence, punishable, under Section 499 of IPC, whereas, complainant himself has committed offence against applicants for which case was got registered and in response to the same, present complaint was filed, wherein, there was variance in the statements, recorded, under Section 200 of Cr.P.C. Complainant, in his statement, recorded, under Section 200 of Cr.P.C., has categorically said about assault made by accused persons, but there is no summoning under Section 323 of Cr.P.C. Applicant no.2, Rinku, is a lady, living under veil, and she has no concern with occurrence, even then, she has been summoned. Witnesses, examined, under Section 202 of Cr.P.C., were pocket witnesses of complainant and this summoning order was challenged before Revisional court, wherein, Revisional court failed to appreciate facts and evidence on record and, thereby, dismissed revision, vide impugned order, dated 31.8.2019. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., for invoking, inherent power of this Court, has been moved, with above prayer. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., for invoking, inherent power of this Court, has been moved, with above prayer. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. Having heard learned counsel for both sides and gone through impugned orders as well as materials on record, it is apparent that a complaint was filed by the complainant Ramesh Chandra against Ashok Kumar and Smt. Rinku for offence, punishable, under Section 499, 500, 504 and 506 of I.P.C., with accusation that complainant is an elected Village Pradhan and Ashok Kumar was his contestant, but he lost in election, owing to which enmity between them developed and Ashok Kumar, himself, and also through his family members used to make complaints before Block Development Officer and other higher ups. These complaints were got investigated and were found un-substantiated by facts. They were bogus and frivolous complaints and, accordingly, stood rejected, but this created disrepute to complainant for which he made a query from those accused persons, but they became abusive and extended threat of dire consequences, which was witnessed by Amar Singh and Harpal. Attempts were made for getting case registered, but of no avail. Hence, this complaint has been made. Magistrate took cognizance over it and examined complainant, under Section 200 of Cr.P.C. His witness were examined, under Section 202 of Cr.P.C. Those witnesses and complainant were fully intact and reiterated contention of complaint. Hence, on the basis of it, impugned summoning order was passed, which was challenged before Revisional court and Sessions Judge, Moradabad, dismissed revision, vide impugned order, dated 31.8.2019. Judgments of Apex Court were cited in this order, wherein, repeatedly, it has been propounded that at the time of summoning, only existence of prima facies case is to be seen, and meticulous analysis of evidence is not to be made at the juncture of summoning. In the present cases, there was sufficient evidence for passing of impugned summoning order, which was passed in accordance with evidences on record. 5. Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767 : 2010 Cr. In the present cases, there was sufficient evidence for passing of impugned summoning order, which was passed in accordance with evidences on record. 5. 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". 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) 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". 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 proceeding, under Section 482 of Cr.P.C., merits dismissal and stands 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. 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. 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.