Sooraj Pal And 3 Ors vs State Of U.P. And Another
2014 Latest Caselaw 4298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 14
 

 
Case :- APPLICATION U/S 482 No. - 31159 of 2014
 
Applicant :- Sooraj Pal And 3 Ors
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- O.P. Rai
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This Criminal Misc. Application has been preferred to quash the entire proceeding in case no. 24 of 2012 (State Vs. Sooraj Pal and others), arising out of case crime no. 219 of 2011, under Section 323, 324, 452, 504 and 506 I.P.C., Police Station Chhatari, District Bulandshahar.

Brief facts are that the application under Section 156 (3) Cr.P.C. was moved before the Magistrate with the allegation that the complainant Munshi Lal is law abiding person of village Allipura Majara Biraura. A wall of his brother Sooraj Pal is adjoining the north side of his house. Soorajpal, his brother Aidal Singh, son of Sooraj pal namely Chhota and son of Aidal Singh namely Dinesh wanted to construct  a wall in the open space of the complainant and often used to abuse the complaint for this. On 25.09.2011, the complainant was going to the temple to give food, suddenly all the accused started teasing but the complainant went quietly to the temple. After some time when he returned from the temple Soorajpal, Aidal Singh, Chhota and Dinesh armed with lathi, danda and knife entered the house of the complainant. Suddenly Chhota assaluted the complainant with the knife. He tried to save himself due to which he sustained injury. Then Aidal, Soorajpal and Dinesh assaulted the complainant with lathi and danda. The complainant received injuries. On the hue and cry of the complainant Smt. Savitri wife of complainit Yaadram, Rajveer and some other people of the village came to save the complainant. The occurence occured at about 11:00 to 12:00 A.M. The complainant sent this information to the police station but the report was kept and nothing was done and his injuries was not medically examined. Then the complainant got his injuries medically examined on 26.09.2011. The police authorities did not take any action, then he sent a registered letter to the S.O. But S.O. did not do anything. Hence, he moved application under Section 156(3) Cr.P.C.

The case was registered against the accused persons who moved an application for discharge which was rejected by the Judicial Magistrate on 07.11.2013.

Feeling aggrieved, the revisionists filed a criminal revision bearing no. 442 of 2013 which was also dismissed by the learned Additional Sessions Judge, Khurja on 27.05.2014.

Feeling aggrieved, this present application has been preferred.

I have heard the learned counsel for the applicants and learned A.G.A.

The Hon'ble apex court has laid down in (2014) 1 Supreme Court Cases (Cri.) 447 (Chandran Ratnaswami Vs. K.C. Palanisamy and others) that the doctrine of abuse of process of court and the remedy of refusal to allow the trial to proceed is well established and a recognised doctrine both by the English Courts and Courts in India. The wholesome power under Section 482 Cr.P.C. entitles the High Court to quash the proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature.

The Hon'ble Apex Court has laid down in which cases, the court to exercise its power under Section 482 Cr.P.C. which are laid down as follows:-

"An abuse of process justifying the stay or quashment of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. What is unfair and wrong will be for the court to determine on the individual facts of each case. There is a growing tendency in business circles to convert purely civil disputes into criminal cases. There is an impression that civil law remedies are time-consuming and do not adequately protect the interests of leaders/creditors. It is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature."

It has been argued on behalf of the applicants that the present case is counter blast and it is the sure misuse of the process of law in as much as there is absolutely no evidence to frame charges against the accused persons.

As far as grounds for discharge are concerned Section 239 Cr.P.C. reads as follows:-

"If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

The plain reading of the above shows that the court trying the case can direct discharge only for the reasons to be recorded by it and only if it considers the charges against the accused to be groundless.

Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. Vs. State (NCT of Delhi) and Anr., 2008 2 SCC 561 in which the Apex Court has held that:-

"That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C., holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing the charges or directing discharge in the following words:

"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of the offence."

Now the court has to examine the evidence on record.

Perusal of the order of the Magistrate shows that after the application under Section 156(3) was presented, an order was passed directing for registration and investigation of the case. After it, charge sheet was submitted. In the discharge application, no ground has been taken why the case should be discharged. Only the ground that accused persons had previously filed complaint against the complainant would not be a ground of discharging the present accused.

The I.O. has recorded the statements of the witnesses who have specifically said that Chhota son of Sooraj assaulted the complainant with knife and Aidal, Soorajpal and Dinesh assaulted the complainant with lathi and danda. It has also been argued on behalf of the applicants that the medical examination of Munshi Singh was conducted on 26.09.2011 which is much delayed. I think the prosecution has given an explanation about the delay in the medical examination in as much as it has been stated that since police did not lodge the report hence after waiting for some time he got his injuries examined at the hospital.

If at all, there is minor contradiction in the statements of the witnesses recorded by the I.O. that would not be a ground to discharge the accused persons.

In Santosh Kumar Yadav Vs. State of U.P. and another, 2011 (72) ACC 7870, it has been laid down that if there are ingredients of offence against the accused, charges should be framed.

The Hon'ble Apex Court in 2010 (1) ACR (SC) P. Vijayan Vs. State of Kerala and another has held that whether the materials at the hands of the prosecution are sufficient or not are matter for trial. At the stage of charge, it cannot be claimed that there is no sufficient ground to proceed against the accused and discharge is the only remedy. Whether the trial would end in conviction or acquittal is absolutely immaterial at this stage.

Perusal of the report shows that Munshi Lal has named all the applicants of having assaulted him. Munshi Lal being injured, Smt. Savitri Devi and Amar Singh have also corroborated the prosecution case.

Thus, there are sufficient ground to frame charge against the accused. The order does not suffer from any illegality and no interference is needed in the order of court below under Section 482 Cr.P.C. Thus, the application is liable to be dismissed.

Accordingly this application under Section 482 Cr.P.C. is dismissed.

Order Date :- 12.8.2014

sailesh