Allahabad High Court
Dharmendra And Another vs State Of U.P. And Another on 31 July, 2023
Bench: Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:153534
Court No. - 89
Case :- APPLICATION U/S 482 No. - 27577 of 2023
Applicant :- Dharmendra And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Jagmohan Singh,Shivendra Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Deepak Verma,J.
1. Heard learned counsel for the applicants and learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed with prayer to set-aside the impugned summoning order dated 15.04.2023 passed by learned Judicial Magistrate, Court No.9, Mathura, in Complaint Case No.28074 of 2022, under sections 323, 504, 506, 354, IPC (Smt. Neelam Vs. Dharmendra and others), Police Station Farah, District Mathura, as well as to quash the entire proceeding of the case.
3. Learned counsel for the applicant submitted instant complaint has lodged in the counter blast to the earlier FIR lodged by the applicants against the informant/opposite party no.2. Applicants received grievous injuries in the said incident and only to protect herself, instant complaint has been lodged against the applicants. No offence against the applicants is disclosed and the present prosecution has been initiated with a malafide intention for the purposes of harassment. He point out certain documents and statements in support of his contentions. He next submits that statement of complainant and its witnesses recorded under sections 200 and 202 Cr.P.C. during the trial. He submits that cognizance order is liable to be rejected.
4. Per contra, learned AGA submits that on perusal of complaint and statements recorded under sections 200 and 202 Cr.P.C., cognizable offence is made out against the applicants under the aforesaid sections. He next submits that at this stage factual dispute cannot be examined, in view of the decisions of Apex Court in several cases. He submits that cognizance order do not suffer from any illegality or infirmity.
5. The Apex Court in the case of Mohd. Allauddin Khan Vs. State of Bihar and others reported in (2019) 6 SCC 107 has held in para No.14 as follows:-
"14. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
6. The Apex Court in Priti Saraf and another Vs. State of NCT of Delhi and another has held that:
"To exercise powers under Section 482, complaint in its entirety have to be examined on basis of allegation made in complaint/FIR/Charge sheet. High Court at that stage not under an obligation to go into matter or examine its correctness. Whatever appears on face of complaint/FIR/charge sheet to be taken into consideration without any critical examination of same. Offence ought to appear ex facie on complaint/FIR/charge sheet and other documentary evidence, on record. It is thus settled that exercise of inherent power of High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinize complaint/FIR/charge sheet in deciding whether case is rarest of rare case, to scuttle prosecution at its inception. Whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellant, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings."
7. From a perusal of the impugned order, it is apparent that the learned Magistrate has passed the said order after having found prima facie case made out against the applicants and cognizable offence is disclosed from the perusal of the complaint as well as the statement of the complainant and its witnesses recorded under Section 200 and 202 Cr.P.C.
8. In view of the above, in the light of judgment of the Apex Court in the matters of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, no ground for quashing the proceedings of the aforesaid case, is made out which may call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C. as the same do not suffer from any illegality or infirmity.
9. The present application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 31.7.2023
VKG
