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2019 DIGILAW 2730 (ALL)

Ram Bharose Lal v. State of U. P.

2019-12-07

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Ram Bharose Lal, Jai Singh and Kallu, against State of U.P. and Smt. Meena, with a prayer for quashing of entire criminal proceeding as well as setting aside summoning order, dated 30.7.2019, passed by III Additional Sessions Judge/Special Judge (Dacoity Affected Area), Budaun, in SST No.1478 of 2019 (Complaint Case No.49 of 2018), Meena vs. Ram Bharose Lal and others, under Sections 392 and 354 of IPC, Police Station-Bisauli, District-Budaun. 2. Learned counsel for the applicants argued that it was a false and malicious accusation, filed by way of an application, under Section 156 (3) of Cr.P.C. and was treated as a complaint case, as a counterblast of case crime no.675 of 2017, for offences, punishable, under Sections 392 and 354 of IPC of Police Station-Bisauli, District Budaun, for which a report was lodged by Ram Bharose Lal against Hira Lal, when Hira Lal outraged modesty of victim, daughter of informant on 7.10.2017, wherein a chargesheet has been filed and as a counter-blast case, wife of Hira Lal, has filed this case against applicants, wherein, applicant no.1, is father, whereas, applicant nos. 1 and 2 are his sons, with false accusation and III Additional Sessions Judge/Special Judge (DAA), Budaun, acting as the Magistrate, has failed to appreciate facts and law placed before it and passed impugned summoning order without application of judicial mind, with above prayer. 3. To bolden his submission, learned counsel for applicants has placed reliance on an order, dated 29.8.2016, of another coordinate Bench of this Court, passed in Application, U/S No.25387 of 2016, Brijveer Singh and another vs. State of U.P. and another, wherein, law laid down by Apex Court, in the case of M/S. Pepsi Food Ltd. & another vs. Special Judicial Magistrate & others, 1998, UPCr.R 118, has been discussed. 4. Learned AGA, representing State of U.P., has vehemently opposed this Application. 5. 4. Learned AGA, representing State of U.P., has vehemently opposed this Application. 5. From very perusal of the Application, moved, under Section 156 of Cr.P.C., it is apparent that it was filed by the applicant-complainant, Meena, wife of Hira Lal, resident of Mohammadpur, Mai, Police Station-Bisauli, District Budaun, against Ram Bharose, son of Mohan Lal, Jai Singh and Kallu, both sons of Ram Bharose, for offences, punishable, under Sections 392 and 354 of IPC, with this contention that on 2.11.2017, at about 9.00 PM, while, applicant, alongwith her kids, was all alone at her home, and her husband was at field, Ram Bharose, Jai Singh and Kallu, armed with weapons, did criminal trespass in the house of the complainant. They hurled abuse, assaulted her and threatened of dire consequences. They also outraged her modesty by obscene act and took away Rs.5,000/-, in cash, and ornaments as well. Upon hue and cry, many persons rushed on the spot, then, they ran away. Incident was reported at the concerned Police Station as well as to the Senior Superintendent of Police, but to no avail. Hence, a complaint, for registration of a case crime number, under above offences and for its investigation by the Police Station, concerned. 6. Learned Additional Sessions Judge/Special Judge (DAA), Budaun, acting as the Magistrate, took cognizance over it and decided to proceed, treating it to be a complaint case, wherein, complainant was examined, under Section 202 of Cr.P.C. and her two witnesses, Puran and Chatrapal, under Section 202 of Cr.P.C. Learned Additional Sessions Judge/Special Judge (DAA), Budaun, acting as the Magistrate, on the basis of those evidences, collected by him, in his enquiry, passed impugned order for summoning of accused persons, for offences, punishable, under Sections 392 and 354 of IPC. 7. Previous registration of a case crime number, upon a report of applicant no.1, Ram Bharose, against Hira Lal, is being said to be a motive for this counter-blast case, but, this may be a motive for this occurrence or this may be a cause for the present occurrence. All these are questions of fact to be seen by the Trial court, during course of trial. All these are questions of fact to be seen by the Trial court, during course of trial. But the contention made in the complaint has been reiterated by the complainant in its enquiry, made, under Section 200 of Cr.P.C., as well as, by witnesses, while, being examined, under Section 202 of of Cr.P.C., at the time of summoning, under Section 204 of Cr.P.C. In all those laws cited by the applicants, it is well settled that only prima facie case and its existence is to be seen by the Magistrate, at the stage of summoning, though, it should be by application of judicial mind and not in a routine, but, in the present case, by application of judicial mind, Additional Sessions Judge/Special Judge (DAA), acting as the Magistrate, ha found hat all such ingredients, which are required to be attracted for passing order of summoning, under above offences, are present, in the statements recorded by the learned Trial court, hence, passed impugned summoning order, as above. 8. Hence, under all above facts and circumstances, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make meticulous analysis of factual aspect because the same is a question, to be gone into, during course of trial, by the Trial court. 9. 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 judgment, in the case of 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 yet another judgment, in the case of 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 the case of 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". 10. Regarding prevention of abuse of process of Court, Apex Court, in the case of 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 the case of 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". Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 11. In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly. 12. 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. 12. 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. 13. For a period of 30 days from today, no coercive action shall be taken against the applicants. 14. In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.