Awdhesh Narayan Tiwari And 2 Ors. vs State Of U.P. And Another
2017 Latest Caselaw 7329 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 44
 

 
Case :- APPLICATION U/S 482 No. - 38725 of 2013
 

 
Applicant :- Awdhesh Narayan Tiwari And 2 Ors.
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Rafeek Ahmad Khan
 
Counsel for Opposite Party :- Govt. Advocate,Ramesh Kumar Shukla,Shashwat Kishore Chaturve
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Heard learned counsel for the applicants as well as learned counsel for the respondent no.2 and learned AGA for the State.

This application under Section 482 Cr.P.C. has been filed for quashment of the proceeding in Case No.2845 of 2013 (State Versus Awadesh Narayan and others), under Sections 447, 452, 323, 504, 506, 325 IPC and 3(1)X SC/AT Act, Police Station- Panvari, District- Mahoba, pending in the court of Chief Judicial Magistrate, Mahoba.

Crux contention floated at the bar by learned counsel for the applicants relates to fact that the entire episode revolves in between two sibling (applicant no.1 and his younger brother) within the periphery of property, which is pending before the Civil Court. The fact is that series of litigation have been and are pending in between them and in order to subvert the situation, he (brother of applicant no.1) has involved his Guard to give colour to such an incident, which, infact never took place. Younger brother of applicant no.1 has only misused the services of his Guard (respondent no.2) for lodging the FIR. He adds that the whole episode speaks of malicious attitude of the respondent no.2 against the applicants, just to serve proprietary interest of his master (younger brother of the applicant no.1). The alleged incident took place on 23.03.2013, whereas on the next day on 24.03.2013 yet the incident continued that too in the presence of the younger brother of the applicant no.1. The entire FIR is indicative of fact that there was no such type of incident, which caused injury to the respondent (opposite party no.2), no such incident ever took place in the presence of a number of persons. He submits that whole incident reflects that respondent no.2 is acting like a tool in the hands of younger brother of applicant no.1. First information report was lodged after elapse of more than a month of the incident and it is quite surprising and crystal clear that FIR lodged against the applicants is outcome of afterthought and in order to colour to the situation. He adds that a frivolous medical examination was undergone into and, that too, on 30th April, 2013. If any injury of fracture was infact caused then some medical evidence in support of the same must have been done prior to 30th April 2013, which aspect is altogether missing. Apart from above, learned counsel for the applicants submits that registered will has been executed by the mother of the applicant no.1, wherein the younger brother of the applicant (the master of the opposite party no.2) has been divested of his right and his son has been bequeathed certain property by way of will (executed by the applicant's mother). Learned counsel for the applicants has placed reliance on the ratio of law laid down in the case of State of Haryana vs. Bhajan Lal Law (SC) 1990 11 35.

While retorting to the argument of learned counsel for the opposite party no.2 submits that applicants had beaten and insulted opposite party no.2 by using filthy language in the presence of public at large, as such it is absolutely incorrect that applicants have been falsely implicated in this case by opposite party no.2 at the instigation of and under influence of younger brother of applicant no.1. The fact is that on 23/24 March, 2013, the applicant's side came over to the house of the informants, which is ancestral house of both the brothers (applicant no.1 and his younger brother), where the informant was working at the command of younger brother of the applicant no.1 and at that point of time the applicants rushed into the house by trying to break open the lock of the door, and when asked by opposite party no.2 not to do so, the assault was caused, which caused injury on the person of opposite party no.2. That way, episode on 24th March, 2013 is an exclusive and independent episode, which cannot be clubbed and linked with any mischievous activity whatever was allegedly existing between the two brothers. 

In this view of the matter, it cannot be said that there is any malicious intention for lodging the first information report. Charge has been framed by the court below, therefore, no useful purpose would be served in keeping the matter pending in this Court but the case may be sent back of the concerned trial court for proper adjudication.

Considered the submissions pros and cons and also perused the judgement of State of Haryana vs. Bhajan Lal Law (SC) 1990 11 35 and particularly para no.108 of the decision. It is obvious that any criminal proceeding fraudulently initiated with malafide  or is an outcome of malice with ulterior motive for wrecking vengeance on the accused, then the same can be interfered with and quashed by exercise of the extraordinary power contained under Section 482 Cr.P.C. Before adjudicating upon that aspect relating to malafide of opposite party no.2 certain things deserve mention. Opposite party no.2 happens to be working as Guard/Sweeper in service of younger brother of applicant no.1. Admittedly, he was engaged by the younger brother of applicant no.1. Series of litigation is going on between applicant no.1 and master of opposite party no.2,- who happens to be younger brother of applicant no.1. It is no denying fact that the property dispute is the bone of contention in several cases pending between the applicant no.1 and his younger brother. Allegedly, some injury was caused to opposite party no.2 on 24.03.2017 and surprisingly, the medical examination was conducted only on 30.04.2013, but prior to that there was  no preliminary or first aid medical examination of injury, whereas, on medical examination on 30.04.213 some fracture was detected, if it was so, then it cannot be said that the fracture would cause no pain at all to the opposite party no.2 on the day it was so caused thus the claim so made is an imaginative device in the absence of opposite party no.2 not rushing for any medical aid on 24.3.2013 and lastly on 24th March, 2013, the younger brother of applicant no.1 was present on the spot in whose service opposite party no.2 was working was manhandled then why did he (younger brother of applicant no.1) not stop the applicants from breaking open the door of the house and remained passive and also why not any action was taken by the master of opposite party no.2 while he was claiming possession over the property/house in question at that point of time. These are the particular aspects of this case, which not only colour the entire picture with malice, but also given concrete shape to the malicious intent and approach adopted by opposite party no.2 and certainly in collusion with and at the instance of his master- younger brother of applicant no.1.

The point is that out of the two real brothers one has tried to act cleverly under shield of his servant just to intensify the situation against the applicants. This being the fact of this particular case, the proceedings arising out of Case No.2845 of 2013 (State Versus Awadesh Narayan and others), under Sections 447, 452, 323, 504, 506, 325 IPC and 3(1)X SC/AT Act, Police Station- Panvari, District- Mahoba, pending in the court of Chief Judicial Magistrate, Mahoba cannot be termed to be natural outcome of the incident alleged, but the same are outcome of misuse of process of Court as such, the same are vitiated and consequently quashed.

Resultantly, this application under Section 482 Cr.P.C. is allowed.

Order Date :- 28.11.2017

Raj