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2020 DIGILAW 1160 (ALL)

Narayan Giri v. State of U. P.

2020-09-24

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Narayan Giri, with a prayer for setting aside entire proceeding of Criminal Complaint Case No. 1918 of 2017, Chameli Devi vs. Narayan and others, under Sections 323, 504, 506, 419, 420 and 406 of Indian Penal Code, Police Station-Tarnva, District Azamgarh, including summoning order, dated 30.1.2018, passed by the court of Judicial Magistrate, court no.16, Azamgarh. 2. Learned counsel for applicants argued that the applicant is not having any concern with alleged occurrence, as mentioned in the complaint. He is merely an agent and in a previous proceeding, which stood dismissed against Opposite party nos. 3, 4 and 5, and application is Opposite party no.4 in said proceeding. Order, so passed, has been filed at page nos. 29 and 30 of this proceeding and after this order having been passed, this complaint has been filed by the complainant. The warranty was of one year and alleged complaint was made by the complainant's husband after lapse of above period. Nowhere any other complaint was there. Hence, this summoning order as well as entire proceeding of complaint case is under abuse of process of law and, therefore, this Application 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 materials placed on record, it is apparent that a case was filed before the District Consumer Reddressal Forum against the agency of Sonalika Tractor, its Proprietor, Agent, through whom, said Tractor was purchased, the Manager of the Branch of State Bank of India, Branch Azamgarh, where tractor was hypothecated and sub-agency-Alam Automobile, Naraoli, Azamgarh, with the same contention as is there in present complaint. It was complaint number 60 of 2011, filed on 12.7.2011 and decided on 26.11.2016, wherein, claim of the applicant, Jawahar Lal Chauhan, was decreed against Dev Automobile, i.e., Authorised Dealer of Sonalika Tractor, Tractor Sales Services, Parts, Bhitarimore Main Road, Syedpur, Ghazipurpur, through its Manager, Sudhansu Singh. 5. There had been a direction with regard to the Tractor concerned. As District Consumer Reddressal Forum is not a criminal court, it cannot take cognizance for criminal offence, but, it is for making reddressal of damage caused to consumer, under Consumer Dispute Reddressal Act, and contention of the present complainant was decreed. 5. There had been a direction with regard to the Tractor concerned. As District Consumer Reddressal Forum is not a criminal court, it cannot take cognizance for criminal offence, but, it is for making reddressal of damage caused to consumer, under Consumer Dispute Reddressal Act, and contention of the present complainant was decreed. Hence, by any order regarding non-award of decree against other defendant, in above consumer dispute, the offence is not affected. 6. Present complaint is with regard to same sequence of occurrence, wherein husband of the complainant was duped by committing fraud by the accused persons, thereby, Tractor was sold by way of hypothecation with State Bank of India, was held to be with material defects and it was taken by the agency concerned and neither it was restored nor was repaired by replacement of engine as was directed by the District Consumer Reddressal Forum and this contention of the complaint stood corroborated by the witnesses, examined, under Section 202 of Cr.P.C. Complainant, in her statement, recorded, under Section 200 of Cr.P.C., has categorically said connivance of all the accused persons, including present applicant in above fraudulent activities and criminal breach of trust. On the basis of all these evidences, collected by the Magistrate, in its enquiry, impugned order for summoning of Narayan Giri, Sudhanshu Singh and Jugunu Singh, for offences, under Section 323, 504, 506, 419, 420 and 406 of I.P.C. is there. 7. There appears to be no illegality or irregularity-apparent on the face of record, warranting interference, in exercise of power under its inherent jurisdiction by this Court. 8. 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". 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". 9. 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". 9. 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. 10. In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.