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2020 DIGILAW 628 (ALL)

Mohit v. State of U. P.

2020-02-27

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Mohit and Madan, with a prayer for setting aside summoning order, dated 19.4.2019, passed by Additional Sessions Judge, Saharanpur, in a proceeding related with Case Crime No.65 of 2017, and, thereby, entire criminal proceeding, under Sections 147, 148, 452, 506, 436, and 427 of IPC, read with Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station-Bargaon, District-Saharanpur. 2. Learned counsel for applicants argued that the applicant no.2, Madan, was not present on the spot of occurrence, rather, he was present somewhere else for which there is evidence on record. Occurrence took place, but, involvement of the present applicants was not there and this fact has been averred by each of the victim, by way of their affidavits, filed before the Investigating Officer, even then, chargesheet, for offences, as above, has been filed and cognizance over it has been taken by the Trial court. It is an abuse of process of law. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. A short counter affidavit has been filed by the learned AGA, wherein, there is mention, in the case diary, that those affidavits, referred to by learned counsel for applicants, mentioned and annexed in the case diary, were obtained through Dak Pad by the Circle Officer, concerned, and it shall be acted upon after its verification, but, there is no mention about their verification, rather, on the basis of statements, recorded, under Section 161 of Cr.P.C., chargesheet has been filed, wherein, cognizance has been taken. 5. 5. First information report reveals that Case Crime No.65 of 2017 was got registered at Police Station Bargaon, District Saharanpur, on 6th May, 2017, upon a report of Ilam Singh against accused persons, namely, Pradeep, Raju, Arjun Pachal,Pankaj, Rejji, Mohit, Madan, Satvir, Mohan, Mohit,Jasvir and Nitu, for offences, punishable, under Sections 147, 148, 452, 506, 436 and 427 of IPC, read with Section 3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, with accusation that those named persons, alongwith other several others, in furtherance of their common object of their unlawful assembly, committed this occurrence, wherein, the accused persons hurled abuses by name of caste, with intimidation, by firing gun shots, resulting in damage caused to shops etc. Present applicants are named accused persons in this case crime number. Investigation, included recording of statement, under Section 161 of Cr.P.C, wherein contentions, made in the first information report, have been reiterated. Some affidavits have been filed, but they were mentioned to be taken on record in Case Diary, however, they were mentioned to be acted upon after their verification. But, lateron, they were not verified, hence, on the basis of the statement, recorded, under Section 161 of Cr.P.C., cognizance was taken for which there was, prima facie, there was sufficient evidence on record. Plea of alibi and other arguments regarding facts are to be seen by the Trial court. 6. 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 the same is to be gone into, during course of trial, by the Trial court. 7. 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". 8. 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". 8. 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. 9. In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly. However, all the questions of fact may be raised before the Trial court, at appropriate stage, which, if raised, shall be considered and decided by the Trial court, in accordance with provisions of law and precedents on the issue/subject. 10. 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. 11. For a period of 30 days from today, no coercive action shall be taken against the applicants. 12. In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.