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2020 DIGILAW 501 (ALL)

Charanjeet Singh v. State of U. P.

2020-02-14

RAJIV JOSHI

body2020
JUDGMENT : 1. Heard Sri Nipun Singh, learned counsel for the applicants, learned AGA for the State and Sri Rajeev Kumar, learned counsel for the opposite party no.2. 2. Present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 20.2.2018 and bailable warrant dated 21.3.2018 issued by the Civil Judge (Senior Division)/Fast Track Court, Gautam Budh Nagar as well as the entire proceedings of Complaint Case No. 2946 of 2017 (Rajendra Kumar Vs. Charanjeet Singh and others), under Section 323 of IPC, P.S. Sector-58, Noida, District Gautam Budh Nagar. 3. Brief facts for consideration of present application are that applicant-1 is a Managing Director of a Company incorporated under the Companies Act, 1956 formerly known as GSC Tafan Glass Pvt. Ltd. now known as GSC Glass Ltd., having its head office at 5 and 7, Udyog Vihar, Greater Noida, District Gautam Budh Nagar, while the applicant-2 and 3 are the ex-manager and ex-supervisor respectively of the said company and have retired long ago. The informant-opposite party no.2 was working as a helper in cutting department of the company. 4. In respect of an incident, which is alleged to have occurred on 17.6.2001 at 8.30 AM, an application under Section 156 (3) Cr.P.C. was filed on 23.6.2001for lodging/registering the first information report under Section 323, 326 and 506 IPC and first information report was lodged against the applicants on 17.7.2001 at case crime no. 179 of 2001, under Sections 323, 326 and 506 IPC, P.S. Sector-58, Noida, District Gautam Budh Nagar. 5. After registration of the first information report, police of the concerned police station investigated the matter in terms of Chapter XII of Cr.P.C. and submitted a final report dated 10.10.2001. Against this final report, the opposite party no.2-informant filed a protest petition dated 11.4.2011 i.e. after about 10 years. Upon filing of the aforesaid protest petition, the Court below passed an order dated 23.9.2011 directing the Station House Officer of the police station Sector 58, Noida to conduct further investigation in the matter and conclude the same at the earliest. After the passing of the aforesaid order dated 23.9.2011, the opposite party no.2 filed criminal misc. writ petition no. 20290 of 2014 (Rajendra Singh Vs. State of U.P. and others), which was disposed of by this Court vide order dated 7.11.2014. After the passing of the aforesaid order dated 23.9.2011, the opposite party no.2 filed criminal misc. writ petition no. 20290 of 2014 (Rajendra Singh Vs. State of U.P. and others), which was disposed of by this Court vide order dated 7.11.2014. The order dated 7.11.2014 is reproduced herein below : "Heard learned counsel for the petitioner and learned A.G.A. This petition has been filed by the petitioner with a prayer that suitable direction may be issued to the authority concerned for ensuring fair investigation of case crime no. 179 of 2001, u/s 323, 326, 506 IPC P.S. Sector 58 Noida District Gautam Budh Nagar. From the perusal of the record it reveals that the petitioner is the first informant of the above mentioned case. In case the petitioner is having any grievance with regard to the investigation of the abovementioned case, the same may be raised before the SSP, Gautam Budh Nagar who shall look into the matter so that fair and expeditious further investigation of the abovementioned case may be ensured. With the above direction this petition is finally disposed of." 6. After the order passed by this Court in Criminal Misc. Writ Petition No. 20290 of 2014, the matter was investigated by the Investigating Officer under the direct supervision of Senior Superintendent of Police, Gautam Budh Nagar and again a final report dated 19.9.2014 was submitted by the Investigating Officer. Aggrieved by the said final report, the opposite party no.2 filed a protest petition on 6.7.2015. The Chief Judicial Magistrate, Gautam Budh Nagar vide its order dated 28.7.2015 did not accept the final report and treated the protest petition filed by opposite party no. 2 as a complaint case and fixed 7.9.2015 for recording of the statement of opposite party no.2 under Section 200 Cr.P.C. 7. Subsequently, statement of opposite party no.2, the informant/complainant was recorded on 29.1.2016. The statements of earlier witnesses of the informant namely, Salek and Ranveer alias Rani and new witnesses namely, Leele, Munish Chand and Dr. S.P. Jain (Retired) were recorded. Copy of these statements recorded under Section 202 Cr.P.C. have been appended collectively as annexure-14 to the affidavit while the statement under section 200,Cr.P.C. is annexure-13. 8. From bare perusal of the statement of Dr. S.P. Jain (Retired) were recorded. Copy of these statements recorded under Section 202 Cr.P.C. have been appended collectively as annexure-14 to the affidavit while the statement under section 200,Cr.P.C. is annexure-13. 8. From bare perusal of the statement of Dr. S.P. Jain (Retired), E.N.T. Surgeon, it is clear that the alleged injury of the informant could be possible while cleaning the ear and the said injury would have no impact on his hearing capacity and would heal at its own. 9. Ultimately, the Civil Judge (Senior Division)/Fast Track Court, Gautam Budh Nagar has summoned the applicants vide order dated 20.2.2018 for the offence under Section 323 IPC. 10. The order dated 20.02.2018 summoning the applicants as well as the order dated 21.3.2018 issuing the bailable warrant against them and the entire proceedings of Complaint Case No. 2946 of 2017 are impugned in the present application. 11. Contention of learned counsel for the applicants is that present criminal proceedings are wholly malicious and amounts to abuse of the process of law, in as much as, no explanation has been furnished by the complainant with regard to the delay of about 10 years in filing the protest petition from the date of submission of final report i.e. 10.10.2001. It is further contended by learned counsel for the applicants that the court below while passing the impugned summoning order dated 20.2.2018 has not considered this aspect of the matter. He next submitted that the period for taking cognizance as prescribed under section 468, Cr.P.C. for an offence under Section 323 IPC has expired long back. 12. On the other hand, learned AGA as well as learned counsel for the opposite party no. 2 supported the impugned summoning order and submitted that applicants have rightly been summoned and after considering the statements made by the informant-opposite party no. 2 under Section 200 Cr.P.C as well as his witnesses under Section 202 Cr.P.C, the summoning order has rightly been passed and prima facie, a case for an offence under Section 323 is made out. 13. I have considered the rival submission so raised by learned counsel for the parties and perused the record. 14. 2 under Section 200 Cr.P.C as well as his witnesses under Section 202 Cr.P.C, the summoning order has rightly been passed and prima facie, a case for an offence under Section 323 is made out. 13. I have considered the rival submission so raised by learned counsel for the parties and perused the record. 14. The complainant in support of his case produced one witness amongst the factory workers namely, Leele Singh, who happens to be the real brother of opposite party no.2 and even his statement was recorded after a lapse of more than 15 years from the date of incident. In his statement, Leele Singh stated that he saw the opposite party no.2 when he was injured, but his blatant lie is proved beyond doubt as when his real brother (complainant) was allegedly injured, he even did not accompany him to the hospital and went to the factory to attend his routine duty. There is no explanation for the delay of about 10 years in filing the protest petition after the final report was submitted on 10.10.2001. 15. Section 468 Cr.P.C. creates a bar for taking cognizance after the lapse of period of limitation. The provisions of Section 468 Cr.P.C. read as under: “468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only [Provisions of this Chapter shall not apply to certain economic offences, see the Economic Offences (Inapplicability of Limitation) Act, 1974 (12 of 1974 ), s. 2 end Sch. ] (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years.” 16. From a bare reading of the aforesaid Section, it is manifestly clear that there is a legislative bar in taking cognizance of offences of the category specified in subsection (2) after the expiry of the period of limitation. From a bare reading of the aforesaid Section, it is manifestly clear that there is a legislative bar in taking cognizance of offences of the category specified in subsection (2) after the expiry of the period of limitation. The offence under section 323 IPC being punishable with imprisonment for a term not exceeding one year, it is covered by section 468 (2) (b),Cr.P.C., for which the period of limitation prescribed is one year. Thus, in this case the period of limitation for taking cognizance was one year. The protest petition which was subsequently treated as a complaint was filed after expiry of about 10 years, even otherwise from bare perusal of entire facts and circumstances, it is apparent that the entire prosecution against the applicants is malicious and amounts to abuse of the process of law. 17. The Apex Court in State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 , after considering the previous decisions of the Apex Court and the provisions of the Code, culled out categories of cases, wherein at a threshold stage, criminal prosecution could be quashed either in exercise of powers under Article 226 of the Constitution or under Section 482 Cr.P.C, as the case may be, with a view to either prevent abuse the process of the Court or otherwise to secure the ends of justice, making it clear that it may not be possible to compartmentalize each and every such contingencies, but nevertheless following categories were mentioned: (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 18. On the basis of allegation made in the first information report as well as from the summoning order, this Court is of the view that present prosecution is malicious and amounts to abuse of process of law and is also barred by limitation as prescribed under Section 468 (2)(b) and the case is squarely covered by the illustration (7) made in the case of Bhajan Lal(supra). 19. In view of what has been stated above. the summoning order dated 20.2.2018 and bailable warrant dated 21.3.2018 passed by the Civil Judge (Senior Division)/Fast Track Court, Gautam Budh Nagar as well as the entire proceedings of Complaint Case No. 2946 of 2017 (Rajendra Kumar Vs. Charanjeet Singh and others), under Section 323 of IPC are unsustainable in the eyes of law and are accordingly quashed. In the result, the application stands allowed.