Brijendra Singh And Others vs The Additional District And ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved 
 
AFR
 

 
In Chamber
 

 
Case :- APPLICATION U/S 482 No. - 10133 of 2002
 
Applicant :- Brijendra Singh And Others
 
Opposite Party :- The Additional District And Sessions Judge Hameerpur And Ors.
 
Counsel for Applicant :- Shyamal Narain,Suresh Singh
 
Counsel for Opposite Party :- Govt. Advocate,B.K. Shukla,Dwivedi S.C.,M.C. Chaturvedi
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This application under Section 482 Cr.P.C. has been filed by the applicant with request to quash the judgement and order dated 28.09.2002, passed by the learned Additional Sessions Judge, Hamirpur in Criminal Revision No.80 of 1999 (Durga Dutt v State of U.P. and others) whereby said criminal revision has been allowed and the order dated 05th August, 1999 passed by the learned Civil Judge (S.D.) Hamirpur recalling his order summoning the accused applicants dated 19.04.1999 has been set aside. On this basis, applicants prayed to quash the summoning order dated 19.04.1999 passed by the learned Civil Judge (S.D.) Hamirpur in Criminal Case No.62 of 1998 Durga Dutt Bajpai vs Ram Prakash and others under Sections 307, 452, 504, 506 IPC as well as criminal complaint dated 3.1.1998/ 06.01.1998 and the entire proceeding of the aforesaid case.

2. Brief facts of this case is that on 29.05.1997, applicant was physically assaulted by the opposite party no.3 and his brother Sri Krishna Dutt Bajpai and others for this incident N.C.R. was lodged against the opposite party no.3 got themselves medically examined, copy of the NCR and injury report of Ram Prakash Nigam, applicant no.3, has been filed as Annexure nos.1 and 2 respectively. As no action has been taken by the police on the report of the applicant, criminal complaint case against the opposite party no.3 was filed under Sections 323 and 504 IPC. As a counter blast to the criminal complaint dated 30.08.1997 filed by the applicant, opposite party no.3 filed a complaint case under Sections 307, 452, 323, 504, 506 IPC against the applicants before the Court of learned Chief Judicial Magistrate, Hamirpur. On 06.01.2018, the averments made in complaint that opposite party no.3 had lodged a report with the police station Bewar on 25.05.1997 but no action was taken on the same therefore the criminal complaint was filed against the applicant on 06.01.1998. After the statement of the complainant recorded under Section 200 Cr.P.C. and the statement of witnesses Krishna Dutta, Brij Bhushan and Subedar.

3. Due to knowledge of such complaint, an application dated 20.04.1998 filed by the applicant before the learned Chief Judicial Magistrate Hamirpur and in that application the applicant has clearly stated that no report dated 25.05.1997 in respect of the alleged incident had actually received in Police Station Bevar and the applicant no.4 Surya Prakash Nigam at that date of incident dated 25.05.1997 appearing in the P.C.S. Examination 1997 at Allahabad. Applicant prayer for hearing before passing the summoning order was rejected by the opposite party no.2, Civil Judge (S.D.) Hamirpur on 19.01.1999. Opposite party no.2 stated in his order that if the accused were summoned they could challenge the summoning order and placed their objection to show to the Court that they had been summoned of wrong fact and get the summoning order set aside.

4. On 19.04.1999 opposite party no.2 passed the summoning order. After passing the summoning order applicants moved an application dated 22.05.1999 before the Superintendent of Police, Hamirpur seeking to be informed officially whether the opposite party no.3 had filed any complaint or submitted any application in police station Bevar on 25.05.1997 in pursuance of the deponent's application dated 22.05.1999, a detailed and comprehensive inquiry was made by the Police of Beevar and final exhaustive report dated 15.06.1999 was submitted before the Superintendent of Police, Hamirpur which is part of record as Annexure no.15.

5. On the said report, it is clearly recorded that seal of police station Bevar was fictitious and no entry was found in general diary corresponding to the so called application. In enquiry report, Police has submitted by receiving the PCS Examination Certificate from the Examination Controller of Public Service Commission, Allahabad in which it is clearly stated that on 25.05.1997 applicant no.4 Surya Prakash Nigam was present in Allahabad for P.C.S. Examination.

6. After passing of the summoning order against the applicants a detailed objection filed by the applicant. After hearing the arguments of both the parties opposite party no.3, Civil Judge (S.D.) Hamirpur passed an order dated 05.08.1999 dismissing the complaint and recalled the earlier summoning order u/s 204 Cr.P.C. dated 19.04.1999.

7. Aggrieved by the order dated 05.08.1999, opposite party no.3 preferred a criminal revision before the learned Additional District Judge/Sessions Judge, Hamirpur. In criminal revision order was passed on 28.09.2002 in which the revisional Court set aside the order dated 05.08.1999 passed by the opposite party no.2. Due to this, the summoning order dated 19.04.1999, passed against the applicant has been revived of trial court.

8. The main contention of the applicant is that the applicant filed objection on 24.04.1999 before the learned Civil Judge (S.D.) Hamirpur in-conformity with the order dated 19.01.1999 in which it has clearly been held that the applicants were entitled to file their objection and in pursuance to the order dated 19.01.1999 applicants filed their objection after passing of the summoning order and learned Magistrate passed the detailed speaking and well reasoned order dated 05.08.1999 and set aside the summoning order u/s 203 Cr.P.C. Learned revisional Court in order dated 28.09.2002 set aside the order dated 05.08.1999 passed by the learned Civil Judge (S.D.) Hamirpur and revived the summoning order dated 19.04.1999.

9. Learned counsel for the applicants contended that in criminal complaint dated 03.01.1998/06.01.1998 is wholly fictitious, mala fide, frivolous and deserves to be quashed forthwith and all the proceedings initiated in consequence of the said complaint including the summoning order dated 19.04.1999 are also liable to be quashed for the same reason.

10. Learned counsel for the opposite party filed counter affidavit in which learned counsel for the opposite party submitted that the opposite party no.3 never started false litigation. Applicant always harassed to the respondent and his family by hook and crook and it is submitted that the applicant has framed false and frivolous counter blast story on 29.05.1997 just to save themselves from the offence committed by them on 25.05.1997. It is also stated that no incident was occurred on 29.05.1997 nor any injury so received to the applicant no.3 Ram Prakash Nigam on the complaint of applicant, summoning order dated 13.01.1997 was passed and such was dismissed on 17.01.1998 and revision filed by Ram Prakash, applicant no.3, which was dismissed on 05.07.2001 by Sessions Judge, Hamirpur. It is also contended by the learned counsel for the opposite party that on 25.05.1997 the application of applicant no.3 was duly received by the Police Station, Bevar although Judicial Magistrate gives the opportunity to the applicant to file their objection after passing the summoning order but such observations of the Magistrate cannot be treated as safeguard to the accused applicant. Learned Magistrate rightly passed the summoning order dated 19.04.1999. Local Police Station Bevar prepared false enquiry report dated 15.06.1999 in the influence of the applicant. False pleas of ali bi of Surya Prakash Nigam is taken by the applicant. It is also stated that learned trial Court has passed an illegal and perverse order dated 05.08.1999 against the provision of Cr.P.C. and as such order was challenged by the respondent no.3 before the revisional Court and revisional Court set aside the order dated 05.08.1999 revisional Court order was well reasoned and correct order after summoning order passed u/s 204 Cr.P.C. summoning cannot be quashed u/s 203 Cr.P.C. so, there is no illegality in the order passed by revisional court. Learned Magistrate after perusing the evidence on record rightly revived the summoning order against the accused. There is no illegality in the summoning order petition filed by the accused persons under Section 482 Cr.P.C. is not maintainable and misconceived and it is also stated that the respondent no. 3 aged about 73 old retired teacher and the accused person has committed a heinous offence being a habitual criminal and prior to this incident some other complaints were also made by the opposite party against the accused applicants.

11. I have heard the learned counsel for the applicants as well as respondents and learned A.G.A.

12. On perusal of the record its clearly reveal in complaint that alleged date and time of incident is 25.05.1997 at 02:00 P.M. place of occurrence of incident is the room of opposite party no.2 situated in town Beewar, District Hamirpur opposite party no.2 clearly stated in his FIR is that accused Brijendra Singh catching hold the both hands of opposite party no.2 and the applicant no.3 and son of applicant no.3 Surya Prakash Nigam, applicant no.4 attempted to kill the opposite party no.2 by throttling the neck with soft towel (SAAFI) on shouting of Krishna Dutt and Subedar many people of town rushed to the spot and saved the respondent from such murderous assault.

13. Main contention of the applicants is that whole prosecution story is concocted and fabricated and respondent tried to rope the all family members and friends of the applicants and also argued that at the date of the incident Surya Prakash Nigam, applicant no.4, was not present on the alleged time, date and place of occurrence but at that day he was appeared in the P.C.S. Examination. Regarding this submission, learned counsel for the applicants relied upon the certificate issued by the Examination Controller on 20.04.1998 and in that certificate, it is clearly stated that Surya Prakash Nigam, resident of Bewar, District Hamirpur, was appeared in the Combined State Upper Subordinate Preliminary Examination, 1997. He was present in both the Sessions of the examination on 25.05.1997. On this ground, learned counsel for the applicants contended that at the date and time of incident on 25.05.1997 as alleged in complaint, he was not present at the place of occurrence and whole story is concocted and fabricated and on this sole ground, the allegation of the opposite party is frivolous and baseless and liable to be quashed. Although against this plea of alibi of the applicants, the opposite party in their counter affidavit has not specifically denied regarding the certificate issued by Examination Controller of the Public Service Commission but in their counter affidavit by making general averment that the certificate is false and fake and no reliance can be placed on this certificate.

14. Learned counsel for the applicants has relied upon the following judgments of the Hon'ble Supreme Court, which are as follows :-

"1. Prashant Bharti vs State of NCT of Delhi on 23 January, 2013 in Criminal Appeal No.175 of 2013"

Wherein, it has been held that;

19. The proposition of law, pertaining to quashing of criminal proceedings, initiated against an accused by a High Court undeSection 482 of the Code of Criminal Procedure (hereinafter referred to as "the Cr.P.C.") has been dealt with by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor (Criminal Appeal No...... of 2013, arising out of SLP (Crl.) no.4883 of 2008, decided on 23.1.2013) wherein this Court inter alia held as under:

22. The issue being examined in the instant case is the jurisdiction of the High Court underSection 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section -

482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

2.S.M. Srinivasa vs State of Karnataka on 31 Marh, 2017 in Criminal Appeal No.577 of 2017:

Wherein, it has been held that;

21. This Court time and again has examined scope of jurisdiction of High Court under Section 482Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court underSection 482 Cr.P.C. A three-Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699,held that the High Court is entitled to quash a proceeding if 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. In paragraph 7 of the judgment following has been stated:

"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if 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 saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."

3. Anand Kumar Mohatta and another vs. State (Govt. of NCT of Delhi) Department of Home and another in Criminal Appeal No.1395 of 2018:

Wherein, it has been held that;

26. In State of Haryana and Ors. v. Bhajan Lal and Ors.5, this Court has set out the categories of cases in which the inherent power under Section 482 of Cr.P.C. can be exercised. Para 102 of the judgment reads as follows: -

4 2006 (6) SCC 736 5 (1992) Supp (1) SCC 335

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the 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 allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) 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.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

4. Harshendra Kumar D vs. Rehatilata Koley Etc on 8 February, 2011 in Criminal Appeal Nos.360-377 of 2011 :

Wherein, it has been held that;

20. In Awadh Kishore Gupta7, this Court while dealing with the scope of power under Section 482 of the Code observed :

"13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge.........."

21. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, 7 (2004) 1 SCC 691 materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.

22. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. As noticed above, the appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company on April 30, 2004, i.e., much after the appellant had resigned from the post of Director of the Company. The acceptance of appellant's resignation is duly reflected in the resolution dated March 2, 2004. Then in the prescribed form (Form No. 32), the Company informed to the Registrar of Companies on March 4, 2004 about appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court.

23. These appeals are, accordingly, allowed. The judgment of the Calcutta High Court dated September 6, 2007 and the summons issued by the Metropolitan Magistrate, Calcutta to the appellant are set aside. The complaints as against the appellant stand quashed."

15. After perusing these case-laws cited by the learned counsel for applicants, it is crystal clear that at the time of the alleged incident, main accused- Surya Prakash Nigam, applicant no.4, was not present on the spot. As per version of complaint, main role of attempt to murder has been assigned to the applicant no.4. By producing the certificate of Controller of the P.C.S. Examination regarding presence of the applicant-Surya Prakash Nigam at Allahabad on 25.05.1997. On perusal of the complaint it is clear that there was only allegation was attempt to murder by throttling the neck with soft cloth by Ram Prakash Nigam and Surya Prakash Nigam but presence of Surya Prakash Nigam is fully mis-conceived at the place of occurrence. So, where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spit him due to private and personnel grudge. In such circumstances, the proceeding against the applicants-accused should be quashed.

No injury report in support of this contention is submitted by the informant.

16. In view of the above, it appears that there are so many cases are pending between the parties. The whole proceeding against the applicants are false and frivolous and are liable to be quashed. So, the Application u/s 482 No.10133 of 2002 of the applicants is allowed. So far as regard the order dated 28.9.2002 of learned A.S.J. Hamirpur in Crl. Revision No. 80 of 1999 (Durga Dutt Vs. State of U.P. And Others). The order passed by learned Additional Sessions Judge, Hamirpur is perfectly valid and according to law because after summoning of the petitioner under Section 204 Cr.P.C., learned Magistrate cannot go behind the order. In other word, he cannot recall or quash his order of summoning dated 19.04.1999. By passing fresh order on 05.08.1999 under Section 203 Cr.P.C. in this case by means of revival of summoning order dated 19.04.1999 certainly, if this application has not been allowed, the applicants will be compelled to face the trial under Sections 452, 307, 504, 506 I.P.C. Learned counsel for the applicants successfully established the plea of alibi of petitioner no. 4, Surya Prakash Nigam. So whole proceedings against the petitioner is nothing but clearly abuse of the process of law. On the aforesaid discussion, I am of the view that the summoning order dated 19.04.1999, passed by the learned Civil Judge (S.D.) Hamirpur in Criminal Case No. 62 of 1998 Durga Dutt Bajpai vs Ram Prakash and others under Sections 307, 452, 504, 506 IPC is hereby quashed and all proceedings relating to criminal complaint dated 3.1.1998/06.01.1998 are hereby set aside. On the aforesaid discussion application of the applicants under Section 482 Cr.P.C. is hereby allowed.

Order Date :- 10.05.2019

m.a.