Allahabad High Court
Anoop Mehrotra & Another vs State Of U.P. & Another on 15 May, 2018
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED/AFR
Court No. - 63
Case :- APPLICATION U/S 482 No. - 5917 of 2006
Applicant :- Anoop Mehrotra & Another
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Mukhtar Alam
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Amar Singh Chauhan,J.
Heard Sri Mukhtar Alam, learned counsel for the applicants and learned AGA for the State. Despite sufficient service, opposite party no. 2 did not turn up.
The applicants, Anoop Mehrotra and one other, through this application under section 482 Cr.P.C. have invoked the inherent jurisdiction of the Court with a prayer to quash the entire proceeding of Case No. 4315 of 2005 under sections 504 and 323 IPC, Police Station Chowk, District Varanasi and further prayed to stay the aforesaid proceeding against the applicants.
Brief facts which are requisite to be stated for adjudication of this application are that an application under section 156(3) Cr.P.C. was moved by the opposite party no. 2 with the allegation that he is senior citizen aged about 74 years old and residing in his house. In another portion of his house, his son Anoop Mehrotra is also living alongwith family. On 4.12.2004 at about 7.00 P.M. when the complainant was present the accused-applicant no. 1 Anoop Kumar Mehrotra and his wife Hema Mehrotra and her brother Pradeep Kumar Dhawan entered into the house and assaulted by fist and kick and also hurled abuses. On being hue and cry the witnesses Kashi Nath Tiwari and Rajesh Kumar Mehrotra came there and escaped him but report was not lodged. The complainant got medically examined and moved this application. The Magistrate allowed the application and directed to concerned Police Station to register and investigate the case. The I.O. after concluding the investigation submitted charge sheet under sections 325/504 IPC. The Judicial Magistrate vide order dated 27.4.2005 took cognizance in the matter and issued summon to the applicants.
Feeling aggrieved this application was moved before this Court.
It is submitted by learned counsel for the applicants that the marriage of applicant no. 1 was solemnized with the sister of applicant no. 2 namely Hema Dhawan in 1998 in accordance with Hindu religion and customs and after the marriage the couple started living as husband and wife and there was no bitterness in the family of the applicant no. 1. The son of the opposite party no. 2 namely Sanjay Mehrotra and other Devrani and Jethani started harassment of the wife of applicant no. 1, therefore, the applicant no. 2 moved an application before the District Magistrate, Varanasi for doing the needful in the matter and thereafter the wife of applicant no. 1 lodged a complaint case in the court of Judicial Magistrate, Hazari Bagh against the son as well as wife of opposite party no. 2. The said complaint was lodged as complaint case no. 10 of 2004. On filing the complaint learned Judicial Magistrate vide order dated 28.2.2005 summoned the son and other family members of opposite party no. 2 under section 498-A IPC and since the accused persons did not appear before the learned court below, therefore, the trial court issued bailable warrant against the accused persons. The accused persons i.e. son and daughter-in-law of opposite party no. 2 filed an application for grant of anticipatory bail in the court of District and Sessions Judge, Hazari Bagh and the learned court below rejected the same on 5.1.2006. On 4.12.2004 at 8.00 P.M. the opposite party no. 2 as well as son of opposite party no. 2 and his wife beaten the wife of appellant no. 1 regarding which she lodged first information report at Police Station Chowk, District Varanasi on 5.12.2004 at 11.10 A.M. but the wife of applicant no. 1 has also received injuries in the same incident, therefore, she was medically examined at Govt. Hospital on 4.12.2004 at 11.20 P.M. The doctor noticed three injuries contusion, multiple abrasion and complaint of pain. In order to harass and humiliate on the instant of the son and daughter-in-law, the opposite party no. 2 filed an application under section 156(3) Cr.P.C. for lodging a criminal case against the applicants. The opposite party no. 2 initiated a criminal proceeding against the applicants in counter blast malafidely as such the criminal proceeding pending before the court below is an abuse of law and the same is liable to be quashed by this Court. It is further submitted that offence under sections 323/504 IPC are non-cognizable and in view of the explanation of Section 2-D of Cr.P.C. the case could not be proceed as state case.
Before adverting to the claim of the parties, it is necessary to reproduce the Explanation of Section 2-D of Cr.P.C. which runs as follows:
"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:
"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or 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 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 there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".
In the case in hand, on perusal of the material brought on record, it transpires that charge sheet submitted by the Investigating Officer instead of being treated as complaint, has been taken cognizance by the Magistrate as State case which is not permissible under law.
In view of what has been submitted and discussed above, application has substance and is liable to be allowed. Application is allowed in part and the impugned order dated 27.4.2005 by which the cognizance was taken is hereby quashed with the direction to proceed with the matter as complaint case. The Magistrate shall proceed with the matter as complaint case.
Order Date :- 15.5.2018
Puspendra
