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2020 DIGILAW 322 (ALL)

Idrish v. State of U. P.

2020-01-29

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973 (Hereinafter in short referred to as 'Cr.P.C.), has been filed by the Applicants, Idrish, Son of Sadik, Amna, Wife of Safakat, Haseena, Wife of Haseen, and Irfan, Son of Taushif, against State of U.P. and Majid Ali, with a prayer for setting aside impugned order, whereby, application moved for discharge was rejected by the Trial court, in Case No.361 of 2011, under Sections 420, 467, 468 and 471 of Indian Penal Code (Hereinafter in short referred to as 'IPC'), Police Station-Garh Mukteshwar, District Ghaziabad, pending in the court of Civil Judge (Junior Division)/Judicial Magistrate, Ghaziabad. 2. Learned counsel for applicants argued that applicant no.1, Idrish, is no more. Counter affidavit, filed by Opposite party no.2, is a defective counter because it has been written at Page No. 3 of the affidavit that the deponent is Opposite party no.2, whereas, deponent is not Opposite party no.2, as Opposite party no.2 is Majid Ali and he has not filed his counter affidavit. Hence, this counter affidavit may not be taken into consideration. 3. A case crime number was got registered upon report of Idrish, present Applicant No.1, against Opposite party no.2 and others for kidnapping and getting deed regarding his land executed on the basis of fraud and fabrication, wherein, investigation had resulted in submission of charge sheet. Name of Smt. Bhuriya, who is wife of Idrish, was got mutated in the revue record, but, upon protest and investigation of Idrish, same was got deleted. Idrish was rightful owner of the property in question and he had executed alienation deed in favour of vendee, duly witnessed by Amna and Haseen, i.e., there is no commission of offence against any of the applicants. This accusation was under abuse of process of law for which a proceeding, under Section 482 of Cr.P.C., being Application U/S 482 No.8416 of 2011, Idrish and others vs. State of U.P. and another, was filed, wherein, vide order, dated 16.3.2011, an opportunity for filing of Discharge Application, before the Trial court, was given and for availing this opportunity, an application for discharge was moved before the Trial court, but, Trial court, in utter abuse of process of law, rejected same. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer. 4. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer. 4. Learned counsel, appearing for Opposite party no.2, has vehemently opposed this Application with this contention that the sale deed was obtained by Opposite party no.2 from Smt. Bhuriya. She was owner of the property in question. She had executed sale deed for a valid consideration and it was a registered document. Hence, informant, Opposite party no.2 was bonafide purchaser of the land in question and he was real owner of the same. Even after having knowledge of this fact, Idrish, got executed subsequent sale deed in favour of accused persons and it was witnessed by other accused persons. This was a fraud and fabrication by accused persons for which this case crime number was got registered and investigation resulted in submission of charge sheet, wherein, cognizance was taken. 5. A proceeding, under Section 482 of Cr.P.C., being Application U/S 482 No. 8416 of 2011, was filed with the prayer for setting aside entire proceeding, including, charge sheet, but this prayer was not accepted by the Court, rather, an opportunity to file Discharge Application was granted and once relief, prayed for quashing of the charge sheet as well as entire proceeding, was declined, then, at the time of framing of charge, while dismissing Discharge Application, pre trial acquittal is not permissible. Hence, Trial court has rightly rejected Application, thus, this Application be dismissed. 6. Learned AGA, representing State of U.P., has also opposed this Application. 7. Having heard learned counsel for both parties and gone through materials placed on record, it is apparent that fact of death of Idrish is yet to be brought in the proceeding in trial that too for getting this fact verified as per Circulars of this Court, issued on administrative side, by way of recording statements of Police personnel, who executed process as well as of near relatives of the deceased. Hence, for disposal of present Application, above fact is of no relevance. However, it may be raised before the Trial court, where, appropriate abatement order, while observing, appropriate procedure, will be passed. 8. So far as counter affidavit and averment made by the deponent is concerned, it may be mentioned that nowhere it has been mentioned that deponent is Opposite Party No.2. However, it may be raised before the Trial court, where, appropriate abatement order, while observing, appropriate procedure, will be passed. 8. So far as counter affidavit and averment made by the deponent is concerned, it may be mentioned that nowhere it has been mentioned that deponent is Opposite Party No.2. Hence, this very argument of learned counsel for applicants, on this very score, is against fact on record. 9. This Court, while disposing of Application U/S 482 No.8416 of 2011, has not granted relief’s, as payed for, on the ground of abuse of process of law, except an opportunity for moving a Discharge Application before Trial court at appropriate stage, while considering contentions raised by the applicants before the Court. Meaning thereby, there was no ground for any indulgence, under exercise of inherent jurisdiction, under Section 482 of Cr.P.C., as is being argued before this Court. 10. Admittedly, a civil suit is pending and the matter in question is pending before Civil court. Unless registered sale deed as well as registered power of attorney is being declared void ab-initio or is being cancelled by the competent court in above civil proceeding, the same exists and it was under the knowledge of Idrish, while executing subsequent sale deed, but, nowhere this was mentioned in the sale deed that there is previous sale deed, executed for the same land, and there is a civil suit pending for its cancellation. Hence, apparently, prima facie, there was sufficient ground for framing of charge. As was held by the Trial court pre acquittal trial is not permissible and at the time of framing of charge as well as disposal of Discharge Application, hair splitting analysis of evidence and fact is not needed. Charge can even be framed on the basis of strong suspicion as has been held by the Apex Court, in the case of Palwinder Singh vs. Balwinder Sing and others, reported in (2008) 14 Supreme Court Cases 504. 11. In present case, this Court, too, in disposal of a proceeding, under Section 482 of Cr.P.C., has not given relief, prayed for. Meaning thereby, there was no ground for any indulgence, hence, there remained ground for proceeding and this ground was held to be sufficient for framing of charge. 12. 11. In present case, this Court, too, in disposal of a proceeding, under Section 482 of Cr.P.C., has not given relief, prayed for. Meaning thereby, there was no ground for any indulgence, hence, there remained ground for proceeding and this ground was held to be sufficient for framing of charge. 12. 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 embark upon factual matrix because it may prejudice fair trial and, more so, it is not under the domain of this Court as has been held by 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 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. 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". 13. 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". 14. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 15. One thing is also to be noted that it was a State case, wherein charge sheet was filed, whereas, application for discharge was moved, under Section 245 (2) of Cr.P.C, which is under Chapter XV of Code of Criminal Procedure, 1973, i.e., pertaining to complain cases. Thus, on this score, too, Application for discharge ought to have been rejected, but, the Trial court considered Application for discharge on the merit and not on took a technical view and on merit, too, Discharge Application was rejected. 16. Accordingly, there was no abuse of process of law. 17. In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.