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2019 DIGILAW 535 (UTT)

H. P. Singh v. State of Uttarakhand

2019-10-01

N.S.DHANIK

body2019
JUDGMENT : N.S. Dhanik, J. 1. This Criminal Miscellaneous Application, under Section 482 Cr.P.C. is preferred to quash the Complaint Case No. 905/2015 and the summoning order dated 7.12.2015 passed therein by the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar. 2. Background facts of the case, necessary to be noted for deciding the present criminal miscellaneous application are:- 2.1 The applicant is the Managing Director of a non-banking financial company Satin Creditcare Network Ltd. engaged in microfinance business, having its registered office in Delhi and which has one of its branches situated and functioning at Sitarganj in District Udham Singh Nagar, Uttarakhand. Complainant and her colleagues availed the facility of group finance from the said branch of this company. 2.2 Respondent no. 2 instituted the impugned complaint case before the Court of Additional Judicial Magistrate, Khatima, District Udham Singh Nagar. Respondent no. 2 averred in the complaint that she herself availed loan and helped other poor women in availing the loan in group from the said company and thus she came in contact with the accused persons, who assured her to give employment in the said branch of the company. On 17.5.2015, the complainant received the message of Branch Manager (Subhash Babu) that boss is coming from Delhi and he asked her to come to Sitarganj as the issue of her employment would be finalized. At about 3 PM on that day, the complainant along with her three years old son reached in the office of the said company in Sitarganj and all the three accused persons were present there at that time. While extending the hospitality to the complainant, the accused persons gave her some spiked stuff to eat and on the pretext of having lunch, the accused persons along with the complainant left for the hotel in a car. While travelling, the accused persons tried to outrage the modesty of the complainant and asked her to compromise and make the applicant happy and they would give her permanent job. Suspecting their intentions, the complainant de-boarded the car on the pretext of getting some water for her son and thereafter she ran towards the crowd. On seeing this, the accused persons escaped in the car and thus the complainant rescued herself. Suspecting their intentions, the complainant de-boarded the car on the pretext of getting some water for her son and thereafter she ran towards the crowd. On seeing this, the accused persons escaped in the car and thus the complainant rescued herself. The complainant also averred in her complaint that she reported the incident to the Police Station Nanakmatta and also sent letter to the Superintendent of Police, but no action was taken in the matter. Ultimately, she filed the complaint before the Court below. 2.3 After recording the statements of the complainant and her witnesses under Section 200 and 202 Cr.P.C. respectively and also considering the documentary evidence, the Court below vide the impugned order dated 7.12.2015 summoned all the three accused persons including the present applicant to face trial for the offence punishable under Section 354 IPC. 2.4 Aggrieved, the applicant has challenged the proceedings of the said complaint case and the summoning order passed therein. 3. The accused applicant before this Court has taken the plea of alibi. It is the contention of the applicant that on the alleged date of incident, he was not in India as he had left India on 9th May, 2015 for Frankfurt and arrived back to India on 25th May, 2015, which proves that the allegations against the applicant are false and frivolous. Learned Counsel for the applicant, during the course of hearing, produced the applicant's original passport containing the entries of immigration check at the time of arrival and departure of travelling abroad on the aforementioned dates. Copy of the said document is available on the record. 4. It is the contention of learned Counsel for the applicant that the document (passport) produced by the applicant, in support of his plea of alibi, is unimpeachable evidence and hence the impugned proceeding against the applicant is the gross abuse of the process of law. Learned Counsel for the applicant attracted attention of this Court towards Section 56 and sub-sections (6), (8) and (13) of Section 57 of the Evidence Act, 1872, which are set out as under: "56. Fact judicially noticeable need not be proved. No fact of which the Court will take judicial notice need be proved. 57. Facts of which Court must take judicial notice. The Court shall take judicial notice of the following facts: (1)...... (2)...... (3)...... (4)...... (5)...... Fact judicially noticeable need not be proved. No fact of which the Court will take judicial notice need be proved. 57. Facts of which Court must take judicial notice. The Court shall take judicial notice of the following facts: (1)...... (2)...... (3)...... (4)...... (5)...... (6) All seals of which English Courts take judicial notice: the seals of all the Courts in India, and all Courts out of India established by the authority of the Central Government or the Crown Representative: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India; (7)...... (8) The existence, title and national flag of every State or Sovereign recognized by the Government of India. (9)...... (10)...... (11)...... (12)...... (13) The rule of the road, on land or at sea. In all these cases and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so." 5. Learned Counsel for the applicant argued that in view of the said provisions, the evidence produced before this Court needs to be appreciated and accepted. Learned Counsel placed reliance on the decisions of the Hon'ble Apex Court in Adalat Prasad vs. Rooplal Jindal and Others, (2004) 7 SCC 338 , Suresh Kumar Tekriwal vs. State of Jharkhand and Another, (2005) 12 SCC 278, State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568 and Anita Malhotra vs. Apparel Export Promotion Council, (2012) 1 SCC 520 . 6. Learned Counsel for the complainant refuted the contentions of learned Counsel for the applicant and argued that this Court in jurisdiction under Section 482 Cr.P.C. cannot appreciate the evidence. He contended that mere entry in the passport cannot be taken as a basis for proving alibi and the passport entry is not an impeccable entry. 6. Learned Counsel for the complainant refuted the contentions of learned Counsel for the applicant and argued that this Court in jurisdiction under Section 482 Cr.P.C. cannot appreciate the evidence. He contended that mere entry in the passport cannot be taken as a basis for proving alibi and the passport entry is not an impeccable entry. He further argued that specific allegation has been made against the accused persons including the present applicant and after recording the statements under Section 200 and 202 of the Code, the process has been issued against the applicant and the claim of alibi at this stage is not maintainable. 7. Having considered the materials on record and the rival contentions advanced by learned Counsel for the parties, I am unable to agree with the contentions urged by learned Counsel for the applicant. Section 56 is the celebrated provision of Evidence Act which provides that "no fact which the Court will take judicial notice need be proved" i.e. no evidence is required of that fact of which the judicial notice has been taken by the Court and the same shall be recognized as true without proof thereof. However, the condition precedent for the same is that such a fact should be very authentic and well known to the public. In my considered opinion, the entries of the passport, as relied by the applicant in support of his plea of alibi, are not the facts which are covered under sub-sections (6), (8) and (13) of Section 57 of the Evidence Act. 8. Judgments relied upon by learned Counsel for the applicant are not attracted in the facts of the present case. The issue involved in the Adalat Prasad case was whether the trial court, which issued the summons, was empowered to recall its order. Subramanium Sethuraman case pertained to the offence punishable under Section 138 of the Negotiable Instruments Act against a company and its Directors where after issue of summons, the accused company filed application for discharge which was allowed by the trial court. It was held by the Supreme Court that the only remedy available to an aggrieved accused to challenge an order in an interlocutary stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. It was held by the Supreme Court that the only remedy available to an aggrieved accused to challenge an order in an interlocutary stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. In Suresh Kumar Tekriwal case, the ratio laid down in the Adalat Prasad case has been followed. In State of Orissa vs. Debendra Nath Padi, the issue involved was regarding right of the accused to file any material or document at the stage of framing of charge. The dispute in Anita Malhotra case pertained to Negotiable Instruments Act. 9. Learned Counsel for the complainant placed reliance on a judicial authority of the Hon'ble Apex Court in Rajendra Singh vs. State of U.P. and Another, (2007) 7 SCC 387, in support of his contention that the plea of alibi cannot be considered at this stage and it is for the accused to establish such plea of alibi at the time of trial and the burden to prove the same also lies on the accused. In the said decision, the Hon'ble Apex Court has observed that "Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person." The Hon'ble Apex Court further observed as under: "This provision makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct." 10. Further, on the basis of the materials on record, I am also of the opinion that on the basis of the allegations made in the complaint, if taken at their face value and accepted in their entirety, a prima facie case is made out against the accused applicant. Further, on the basis of the materials on record, I am also of the opinion that on the basis of the allegations made in the complaint, if taken at their face value and accepted in their entirety, a prima facie case is made out against the accused applicant. It is settled law that the summoning order and the proceedings of a complaint case can be quashed if the complaint on the very face of it does not disclose any offence against the accused. In the present case, specific allegations have been made against the accused persons including the present applicant. Alleged incident has been narrated in detail with specific date and time. The background scenario and the motive behind the alleged incident have also been stated in the complaint. Process has been issued against the accused applicant after taking cognizance of the complaint and examining the complainant and the witnesses. 11. It is also settled law that power under Section 482 Cr.P.C. requires great caution in its exercise. A Constitution Bench of the Hon'ble Apex Court has elaborately discussed such scope in the case of Inder Mohan Goswami and Others vs. State of Uttaranchal, (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. 12. In view of what has been set forth above, I do not find any force in this criminal miscellaneous application. Consequently, the present C482 petition is dismissed. Interim order, if any, stands vacated. Inform the Court concerned accordingly.