Tota Ram And Others vs State Of U.P. And Another
2019 Latest Caselaw 996 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 

 
Reserved
 

 
Case:- APPLICATION UNDER SECTION 482 No. 28155 of 2011.
 
Applicant:- Tota Ram And Others
 
Opp Party:- State of U.P. And Another
 
Counsel for Applicant:- Rajesh Pachauri
 
Counsel for Opp Party: Government
 
Advocate. Shri D.K.Tripathi, Manoj Kumar Mishra and R.U.Mishra.
 

 
Hon'ble Saurabh Shyam Shamshery, J.

Present Application has been preferred for invoking the jurisdiction of this Court under section 482 Cr.P.C for the relief that the orders dated 28.07.2011 and 15.06.2011 be quashed.

The factual matrix of the present case is that the Applicant No 1 had lodged a First Information Report against the Opp Party no 2 and five other co-accused under sections 457, and 380 IPC at PS Surir, District Mathura (case crime no 14 of 2005 on 24.02.2005). The said first information report was investigated by the Investigating officer concerned and after investigation, a final report was submitted in the aforesaid case crime. Being aggrieved by the final report, submitted by the Investigation officer concerned, the Applicant no. 1 filed a Protest Petition before the Court concerned. However, the Judicial Magistrate dismissed the Protest Petition and accepted the final report submitted by the Investigating officer on 22.08.2007. Again being aggrieved by the order dated 22.08.2007, the applicant no 1 preferred a criminal revision

numbered as Crl Revision No 498 of 2007 before the District and Sessions Court Mathura which also culminated in being dismissed vide order dated 19.02.2009. However, the Applicant has not assailed the order dated 19.02.2009 in the Higher Court and by this reckoning, the said order has attained finality.

The Opp Party no 2 thereafter filed a complaint under section 500, 195 and 191 IPC on 13.05.2009 before the Judicial Magistrate Mathura where it was mentioned that;-

;g fd foi{kh rksrkjke o v;ks/;k izlkn ds }kjk tkucw> dj izkFkhZ o mlds ifjokj dh eku e;kZnk o izfr"Bk dks /kwfey fd;s tkus ds mn~ns'; ls pksjh dk feF;k vkjksi yxkrs gq;s izFke lwpuk fjiksVZ ntZ djk;h ftlls izkFkhZ dh eku e;kZnk o izfr"Bk dks dkQh {kfr gq;h rFkk rksrkjke] jkeukFk iq=x.k v;ks/;k izlkn o Jherh foeys'k ifRu rksrkjke us tkucw>dj feF;k lk{; x<+us ds mn~ns'; ls izkFkhZ dks feF;k vkjksi esa nks"kfl) djkus dh fu;r ls >¡wBs 'kiFk i= izLrqr fd;s gSA

;g fd vfHk;qDrx.k ds fo:) izkFkhZ o mlds ifjokj dh eku e;kZnk o izfr"Bk /kwfey fd;s tkus ds fy, izFke n`"V;k Hkk0 na0 l0 dh /kkjk & 500 rFkk feF;k lk{; x<+us o >w¡Bk nks"k fl) djkus ds mn~ns'; ls U;k;ky; esa izLrqr fd;s x;s 'kiFk i=ksa ds vk/kkj ij Hkk0

na0 l0 dh /kkjk & 191 o 195 ds vUrxZr nf.Mr vijk/k curk gSA

vr% Jhekuth ls izkFkZuk gS fd izkFkhZ ds ifjokn dks iathd`r dj

vfHk;qDrx.k dks okLrs fopkj.k ryc djus dh d`ik djsaA

In support of his case, statement under section 200 Cr.P.C as well as the statement under section 202 Cr.P.Cwere recorded wherein they have put weight to the version of the complaint submitting that due to false application filed by the Applicant, his reputation and prestige have suffered a dent affecting his prestige and reputation. The learned Judicial Magistrate, Mathura after taking into consideration the materials on record, dismissed the complaint under section 203 Cr.P.C and held that the case instituted by the Applicant against the Opp Party which led to filing of final report cannot be considered to be a case of defamation and it is a case which falls under exception of 'accusation' preferred in 'good faith'. The Opp Party no 2 preferred a Criminal Revision No 416 of 2009 before the Addl Sessions Judge Mathura. The learned Court vide order dated 12.04.2010 allowed the revision and remitted the case to the learned court below for reconsideration of the matter.

On the case being remanded, the learned Judicial Magistrate after taking into reckoning the materials on record, summoned the applicants under section 500, 195 and 191 IPC vide order dated 15.06.2010 on the ground that prima facie case is made out against the applicants.

The Applicants then approached the District and Sessions

Judge Mathura by way of filing a Criminal Revision being Crl Revision No 353 of 2010. The learned Court below vide order dated 28.07.2011 rejected the Criminal revision and held as under:

i=koyh ds voyksdu ls Li"V gksrk gS fd fopkj.k U;k;ky; us ifjokn la[;k [email protected] ds vUrxZr vfHk;qDrksa dks izFke n`"V;k lk{; ikrs gq;s Hkk0na0la0 dh /kkjk 500] 191] 195 ds vijk/k ds vUrxZr ijh{k.k gsrq ryc djus dk vkns'k ikfjr fd;k gSA mijksDr lanHkZ esa ifjokn ds voyksdu ls Li"V gksrk gS fd mDr ifjokn ifjoknh egsUnz iky us bl vk/kkj ij izLrqr fd;k Fkk fd mldks viekfur djus ds mn~ns'; ls pksjh dh >wBh ?kVuk dh fjiksVZ rksrkjke vkSj jkeukFk us vijk/k la[;k [email protected] /kkjk 457] 380 Hkk0na0la0 ds vUrxZr Fkkuk lqjhj ij ntZ djkbZ] ftlesa iqfyl us vafre vk[;k yxkbZA vafre vk[;k yxus ds ckn ifjoknh us bl vk'k; dk ifjokn nkf[ky fd;k fd rksrkjke vkSj jkeukFk us mldh izfr"Bk lekt esa /kwfey djus ds mn~ns'; ls vijk/k la[;k [email protected] vUrxZr /kkjk 380] 457 Hkk0na0la0 dk >wBk eqdnek mlds fo:) ntZ djk;k] ftlesa iqfyl us vafre vk[;k izLrqr fd;k rFkk rksrkjke us mDr vkns'k ds fo:) l= U;k;ky; esa iqujh{k.k la[;k [email protected] izLrqr fd;k] ftlesa v/khuLFk U;k;ky; ds vkns'k dh iqf"V dh x;h rFkk iqujh{k.k [kkfjt fd;k x;kA

The learned counsel for the Applicants submits that the Judicial Magistrate passed the impugned summoning order dated 15.06.2010 without looking into the list of the witnesses given by the Opp Party no 2 before the court and recorded the statement of Laxmi Chand as a witness who was not mentioned even in the list of witnesses filed along-with the complaint. He also submits that the summoning order is itself not sustainable as the Judicial Magistrate summoned the applicants under section 500,

195 and 191 IPC which are not made out against the applicants. He also submits that the Judicial Magistrate as well as the Sessions Court has not considered the legal aspect of the case, mandatory provisions of the Cr.P.C and factual aspects of the case while passing the impugned orders. He also submits that the learned Sessions Court as well as the Trial Court has committed manifest error of law in passing the impugned orders. He also submits that the Courts below have wrongly placed reliance on the averments of the complaint made by the Opp Party no 2 and therefore, orders impugned are absolutely bad,illegal and unsustainable in the eye of law.

This Court on 15.9.2011 has passed the following order.

"Heard learned counsel for the applicants.

Learned AGA has accepted notice on behalf of State respondent No.1. He prays for and is allowed six weeks time for filing counter affidavit.

Issue notice to opposite party No.2. He may also file counter affidavit within the same period.

.

Rejoinder affidavit if any, may be filed within two weeks thereafter.

List after eight weeks.

It is contended that neither the allegations made in the complaint nor those in the statements recorded under Section 200 and 202 Cr.P.c. disclose ingredients of any offence punishable under Section 500 , 195 and 191 IPC, yet the court below summoned the applicants in a mechanical manner without any application of mind to the facts of the case and the material on record.

The submissions made by learned counsel for applicant prima facie appear to be correct and the applicants have made out a

case for grant of interim relief

In view of above, no coercive action shall be taken against the applicants in Complaint Case No. 462/IX/2009, under Section 500,195,191 IPC Police Station Surir, District Mathura , pending in the court of Judicial Magistrate Mathura , till the next date of listing.

The learned counsel for the Applicant further canvassed that the in view of the above mentioned submissions, this petition may be allowed. On the contrary, learned Additional Government Advocate on behalf of the State lent support to the impugned orders and also submits that under the inherent power under section 482 Cr.P.C, no inference is called for at this stage by this Court.

I have considered the submissions made across the bar and also have gone through the materials on record.

Hon'ble Apex Court in the case of P.S Meherhomji Vs K.T.Vijay Kumar and others reported in (2015) 1 SCC 788 has held as under:

"13. It is equally well settled that summoning of an accused in a criminal case is a serious matter and the order taking cognizance by the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court and to quash the proceeding instituted on complaint but

such power could be exercised only in cases where the complaint does not disclose any offence or is vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of power Under Section 482.

14.So far as the complaint alleging offence Under Section 499 Indian Penal Code is concerned, if on consideration of the allegations the complaint is supported by a statement of the complainant on oath and the necessary ingredients of the offence are disclosed, the High Court should not normally interfere with the order taking cognizance.

15. In the case of Dhanalakshmi v. R. Prasanna Kumar and Ors. 1990 (Supp) SCC 686, a three Judge Bench of this Court held:

3.Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers Under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide frivolous or vexatious, in that event there would be no justification for interference by the High Court.

16. In the case of Chand Dhawan v. Jawahar Lal and Ors. AIR 1992 SC 1379, this Court, while considering the power of the High Court Under Section 482, Code of Criminal Procedure and quashing the criminal proceedings, observed that when the High Court is called upon to exercise its jurisdiction to quash the proceedings at the stage of the Magistrate taking cognizance of the offence, the High Court is guided by

the allegations, whether those allegations, set out in

the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of court or not." (Emphasis supplied)

From a perusal of the contents of the complaint as well as the statements recorded under section 202 Cr.P.C as well as the impugned orders, I am of the considered view that the same are sufficient to disclose that there is a prima facie case against the applicants under section 500, 195 and 191 Cr P.C as filing of false complaint against the Opp Party No 2 had harmed his reputation as well as it is a case of making false statement/evidence also. In view of the above mentioned judgment, once the allegations spell out any offence and there is no abuse of process of law, the power under section 482 Cr.P.C should not be exercised. Further, defence of the applicants cannot be considered at this stage.

In the above conspectus, the present petition under section 482 Cr.P.C being devoid of merit, is accordingly rejected.

MH

Dt 12.3.2019.