Vivek Vashistha vs State Of U.P. And Another
2023 Latest Caselaw 25528 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184697
 
Court No. - 84
 

 
Case :- CRIMINAL APPEAL No. - 1233 of 2022
 

 
Appellant :- Vivek Vashistha
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Pankaj Kumar Shukla
 
Counsel for Respondent :- G.A.,Kuldeep Kumar
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the appellant, learned counsel for opposite party no.2 and perused the record.

This appeal has been preferred against the order dated 07.12.2021 passed by the Special Judge SC/ST (P.A.) Act, Bulandshahar in Complaint No.70/ 2020 (Manju Vs. Ashok Pathak and others) under Sections 452, 323, 504 I.P.C. and 3(1) (W) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Narora, District Bulandshahar.

By impugned order, the trial court summoned the appellant alongwith three co-accused persons to face trial under Sections 452, 323, 504 I.P.C. and 3(1) (W) of SC/ST Act.

As per facts of the case, on the basis of application under Section 156(3) of Cr.P.C. dated 19.10.2020 a complaint was filed by the opposite party no.2 Manju, the wife of Naresh Kumar Balmiki against the appellant and three other co-accused persons that Ashok Pathak and Raju Pathak sons of Bhudutt are the notorious type persons, who used to encroach upon the lands of poor persons. They also wanted to encroach upon the plot of the complainant/ opposite party no.2, regarding which, she made a complaint to the higher authorities. Because of this enmity on 16.10.2020 at 11:00 a.m. all the four accused persons including the present appellant equipped with pistol entered into her house, used caste based words. Co-accused Ashok Pathak by using abusive language said that today the complainant must not be spared and doing obscene activities all the accused persons embraced and disrobed her and tried to commit rape on her. After hearing her hue and cry, Rajesh Kumar son of Kalyan Singh and Bhojraj Singh son of Bhabhuti reached at the spot and saved her. The accused persons fled away using abusive language, giving threat of life waving their pistols. The apprehension was expressed by the complainant that these persons could commit any incident with her. On 17.10.2022, an application was moved to S.S.P., Bulandshahr but no action was taken.

After registering the complaint, on the basis of this application under Section 156(3) of Cr.P.C. a report was summoned by the trial court vide order dated 20.10.2020 and a report from the concerned police station was received to the fact that such incident could not be confirmed from the nearby resident and witnesses. It was mentioned in the report that Naresh, the husband of opposite party no.2, Smt. Manju moved an application against Ashok Pathak and Raju Pathak that those two were claiming the allotted land to Naresh to their own land, while Bhudutt Pathak, the father of Ashok and Raju Pathak showed the land in his name. The complaint of Naresh was found false and the possession by way of constructing house on the land in dispute was found to be of Ashok Pathak and Raju Pathak sons of Bhudutt Pathak. After recording the statement of the complainant under Section 200 Cr.P.C. and the statements of witnesses Bhojraj Singh and Pappu Singh under Section 202 Cr.P.C., the trial court passed the impugned summoning order and found that, though witness Pappu Singh has not supported the version of the complaint but the complainant and witness Bhojraj Singh have supported the version of complaint.

It is argued by the learned counsel for the appellant that no such incident ever took place. It is a gross misuse of the process of law. Naresh Kumar, the husband of opposite party no.2 Manju went to the appellant as he is the Chairman of Nagar Panchayat Narora, District Bulandshahr and made a complaint regarding encroachment over the land. The Sub-Divisional Magistrate and circle officer police made a spot inspection and the appellant being the Chairman of concerned Nagar Panchayat stopped the construction on the land. Lekhpal concerned also tallied the revenue map on the spot. Naresh Kumar, the husband of opposite party no.2 himself admitted in his statement that the house on the disputed land was constructed by Ashok Pathak etc. 15 years back. Naresh Kumar was found claiming his possession over the land since last six months. Thus, not finding the possession of the opposite party no.2/ her husband on the land, the tehsildar concerned found the dispute to be of civil nature and it is argued that the appellant being the Chairman of Nagar Panchayat passed the order to stop the construction over the disputed property, so he has been wrongly impleaded as an accused. He directed the executive officer to examine the matter and take needful action and as per his order the executive officer of the Nagar Palika Parishad stopped the illegal construction. There was no occasion for the appellant to enter the house of the opposite party no.2 and commit the offence against her. In her complaint the complainant never uttered that she was sexually victimised by reason of her belonging to the scheduled caste or scheduled tribe community. The appellant being a Chairman of Nagar Panchayat had no knowledge of the caste of the complainant. There is no motive or mens rea of committing the offence. The evidence on record do not constitute prima facie a cognizable offence against the appellant. The impugned order is wholly arbitrary, illegal and violating the fundamental rights of the appellants.

Learned counsel for the opposite party no.2 opposed the prayer and submitted that the incident in fact took place. The complainant in support of the complaint made her statement under Section 200 Cr.P.C. and her statement was supported by the statements of the witnesses recorded under Section 202 of Cr.P.C. As the dispute between the parties is pending, so they are known to each other. Other co-accused Lav Kuamr @ Labbu had also filed an appeal before this Court but when the co-ordinate Bench of this Court was going to reject the appeal of the co-accused he made a prayer for bail and the order dated 31.08.2022 was passed by the Co-ordinate Bench regarding the bail of the co-accused. At this stage only a prima facie case is to be seen by the Court, hence, the prayer is made accordingly.

Learned counsel for the appellant drew the attention of this Court towards the judgment M/s Neeharika Infrastructure Private Limited Versus State of Maharashtra And Others, 2021 0 Supreme(SC) 199, wherein the Full Bench of the Apex Court held that the power of quashing FIR should be exercised sparingly with circumspection but the court can interfere in exceptional cases where non-interference would result in miscarriage of justice.

The attention of the court is also drawn towards judgement State of Haryana and others Vs. Bhajan Lal and others, 1992 Supp (1) Supreme Court Cases 335 and has been argued that the Apex Court summarised in this judgement the flexible guidelines wherein the court can exercise its inherent powers to prevent abuse of process of any court or otherwise to secure the ends of justice.

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(5) Where the allegation 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.

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(7) Where a criminal proceeding is manifestly attended with malafide 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.

It is argued by the learned counsel for the appellant that the same formula applies here that no prudent person can ever reach on a conclusion that a person working at the post of Chairman of Nagar Panchayat would enter into the house of the complainant and commit the offence as mentioned in the FIR. Hence, prayer is made accordingly.

While learned counsel for the opposite party no.2 drew the attention of the Court towards the judgment Sonu Gupta Versus Deepak Gupta And Others, (2015) 3 Supreme Court Cases 424, wherein the Apex Court held that at the stage of summoning the accused persons Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials on record will lead to conviction or not.

Further, the attention of the Court is drawn by the learned counsel for the opposite party no.2 towards the judgment Rajesh Bajaj Versus State NCT of Delhi And Others, (1999) 3 Supreme Court Cases 259, wherein it was held by the Apex Court that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. The information in the complaint must be so bereft of even the basic facts which are absolutely necessary for making out the offence.

Thus, where the learned counsel for the appellant prayed for setting aside the summoning order, the counsel for the opposite party no.2 prayed for the dismissal of appeal.

Admittedly, the appellant at the time of incident was the Chairman of the Nagar Panchayat concerned before whom a complaint of the husband of the opposite party no.2 was received, which was got inquired by the appellant in the capacity of Chairman of Nagar Panchayat and later on the construction of the husband of the opposite party no.2 was stopped. Admittedly, there was no prior dispute of the opposite party no.2 with the appellant. Whatever the dispute of the opposite party no.2 was, it was against the rest three co-accused persons. The capacity of the present appellant is different from rest three co-accused persons, as he was the Chairman of the Nagar Panchayat at the time of incident. He cannot be expected to enter the house of the complainant alongwith co-accused persons with whom the opposite party no.2 and her husband were in inimical terms. The appellant being not personally known to the opposite party no.2, cannot be said to be knowing the caste of the opposite party no.2. In the complaint also, no motive of the incident has been disclosed against the present appellant. The reading of the complaint clearly shows the allegations to be 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. The proceedings are malicious. The complaint against the appellant is found filed with ulterior motive for wreaking vengeance on the accused. The trial court on the basis of mere oral statement of opposite party no.2 and one of his witness has passed the impugned order.

Admittedly, the second witness Pappu Singh has refused to witness the incident.

The present complaint being a sheer misuse of the process of law against the appellant, in the opinion of the Court, the summoning order against the appellant is not sustainable in the eyes of law.

Hence, the appeal is allowed. The impugned order dated 07.12.2021 is set aside against the appellant only.

Order Date :- 20.9.2023

Radhika