Pramod Kumar Gupta And 5 Others vs State Of U.P. And Another
2022 Latest Caselaw 10718 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 82
 

 
Case :- APPLICATION U/S 482 No. - 17429 of 2022
 

 
Applicant :- Pramod Kumar Gupta And 5 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Piyush Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

The applicants are challenging the summoning order dated 04.05.2022 whereby they are summoned in a Complaint Case No. 668 of 2022 under Sections 147, 149, 323, 504 I.P.C.

Sri Piyush Dubey, learned counsel for the applicants submits that it is a case of counterblast then an F.I.R. was lodged from the applicants side on 18.02.2022 against the complainant side wherein after investigation charge sheet has been filed. On the same incident, the complainant side (accused in the F.I.R.) filed an application under Section 156 (3) Cr.P.C. which was treated to be a complaint case and on the basis of the statements recorded under Sections 200 and 202 Cr.P.C., the summoning order has been passed.

Learned counsel submits that even the statements so recorded, no case is made out against the applicants.

The above submissions are opposed by learned A.G.A. for the State and he submits that on the basis of the statement so recorded, prima facie, a case is made out against the applicant. Therefore, under the powers of 482 Cr.P.C., this Court cannot interfere in the summoning order.

The law with regard to interference under inherent jurisdiction of issue of process on complaint case is well settled which is summarized in following paragraphs:

(I) The procedural scheme in respect of the complaints made to Magistrate is provided under Chapter XV of the Code of Criminal Procedure. On a complaint being made to a Magistrate, he is required to examine the complainant on oath and the witnesses, if any, (Sections 200 and 202 Cr.P.C.) and then on considering the complaint and the statements on oath, if he is of the opinion that there is no sufficient ground for proceeding, the complaint shall be dismissed after recording brief reasons (Section 203 Cr.P.C.). Section 201 Cr.P.C. states that in case Magistrate who is not competent to take cognizance of the offence he shall, (i) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (ii) if the complaint is not in writing, direct the complainant to go to the proper Court.

(II) The Magistrate may on receipt of a complaint of which he is authorised to take cognizance proceed with further inquiry into the allegations made in the complaint either himself or direct an investigation into the allegations in the complaint to be made by a police officer or by such other person as he thinks fit for the purpose of deciding, whether or not there is sufficient ground for proceeding (Section 202 Cr.P.C.), in that event, the Magistrate in fact postpones the issue of process. It is Provided in Section 202 Cr.P.C. that no such direction for investigation shall be made, (i) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (ii) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200 Cr.P.C.. In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath, provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(III) On conclusion of inquiry by himself or on receipt of report from the police officer or from such other person who has been directed to investigate into the allegations, if, in the opinion of Magistrate taking cognizance of an offence there is no sufficient ground for proceeding, complaint is dismissed under Section 203 Cr.P.C. or where the Magistrate is of the opinion that there is sufficient ground for proceeding, then a process is issued.

(IV) In case of a complaint under Section 200 Cr.P.C. a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding.

(V) The words 'sufficient ground', used under Section 203 Cr.P.C. have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction (para 15 of S.W. Palanitkar Vs State of Bihar: (2002) 1 SCC 241). "...All that he (Magistrate) has to see is whether or not there is 'sufficient ground for proceeding, against the accused. At this stage magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges." (para 10 of Kewal Krishnan S/o Lachman Dass Vs Suraj Bhan and Ors 1980 Supp SCC 499).

(VI) The object of investigation under Section 202 Cr.P.C. is "for the purpose of deciding whether or not there is sufficient ground for proceeding". The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. Issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity (Para 60 of Birla Corporation Limited Vs Adventz Investment and Holdings Limited and Ors : (2019) 16 SCC 610).

Inherent Jurisdiction of the High Court and interference with issue of process:-

(I) Apex Court in Paras 83, 87 and 88 of Birla Corporation Limited (supra) has observed that:-

"83. It is well settled that the inherent jurisdiction under Section 482 Cr.P.C. is designed to achieve a salutary purpose and that the criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, the Supreme Court reviewed the earlier decisions and summarised the principles as to when the issue of process can be quashed and held as under:-

"5. ????.. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

"87. In Madhavrao Jiwajirao Scindia and Others v. Sambhajirao Chandrojirao Angre and Others (1988) 1 SCC 692, it was held that "when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima-facie establish the offence." It was further held that "while considering the matter, the court is to take into consideration any special feature which appear in a particular case showing whether or not it is expedient in the interest of justice to permit a prosecution to continue."

"88. The FIR or the criminal proceedings can be quashed if the allegations do not make out a prima-facie case or allegations are so improbable that no prudent person would ever reach a just conclusion that there are sufficient grounds for proceeding against the accused...."

(II) In Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra : (2019) 14 SCC 350, the Apex Court has laid emphasis on the principles laid down in two of its previous judgements namely, State of Karnataka v. M. Devendrappa : 2015 (3) SCC 424 and Indian Oil Corporation v. NEPC India Ltd. & Ors.: (2006)6 SCC 736 and held that quashing of criminal proceedings is called for only when the complaint does not disclose any offence, or the complaint is frivolous, vexatious, or oppressive and further clarified that defences available during a trial and facts/aspects whose establishment during the trial may lead to acquittal cannot form the basis of quashing a criminal complaint. The criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature, if the ingredients of the alleged offence are prima facie made out in the complaint.

(III) In recent judgments Supreme Court in Ramveer Upadhyay and another vs. State of U.P. and another, 2022 SCC OnLine SC 484 and Daxaben vs. State of Gujarat and others, 2022 SCC OnLine SC 936 held that, criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of Cr.P.C. only because the complaint has been lodged by a political rival. Whether the allegations are true or untrue, would have to be decided in trial. In exercise of power under Section 482 of Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. Court further held that, ends of justice would be better served if valuable time of Court would spent on hearing appeals rather than entertaining petitions under Section 482 Cr.P.C. at an interlocutory stage which might ultimately result in miscarriage of of justice as held in Hamida vs. Rashid alias Rasheed, (2008) 8 SCC 781.

I have perused the statements so recorded during the proceedings as well as the impugned summoning order wherein the learned trial Court has considered the statement in its correct perspective and that prima facie a case is made out against the applicants for committing offence as referred above, therefore, it is not a case that no case is made out against the applicants. The accused persons came in an unlawful assembly with common object to cause interference with construction of the complainant side and assaulted them. The statement recorded are consistent with contents of complaint.

Therefore, I do not find any reason to cause interference in the impugned summoning order.

The application stands rejected.

Order Date :- 22.8.2022

Nirmal Sinha