Tahir @ Babua vs State Of U.P. And Another
2024 Latest Caselaw 37263 ALL

Allahabad High Court

Tahir @ Babua vs State Of U.P. And Another on 13 November, 2024

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:177937
 
Court No. - 75
 

 
Case :- APPLICATION U/S 482 No. - 20857 of 2024
 

 
Applicant :- Tahir @ Babua
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anwar Hussain
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. This application u/s 482 Cr.P.C. has been preferred against the summoning order dated 02.11.2021, passed by learned Additional Chief Judicial Magistrate, Court No. 5, Moradabad in Complaint Case No. 887 of 2018, under Sections 323, 504 I.P.C., Police Station Mugalpura, District Moradabad. The order dated 14.05.2024, passed by learned Additional Sessions Judge, court No. 6, Moradabad, in criminal revision no. 191 of 2021 is also being impugned.

3. It has been submitted by learned counsel for the applicant that both the impugned orders are against facts and law ans thus, liable to be set aside. The opposite party no. 2/complainant is cousin of applicant and that earlier she has filed a suit for eviction by showing the applicant as tenant, whereas the said property is an ancestral property of both the parties. As the complainant could not succeed in the civil proceedings thus, she has filed the impugned complaint making false and baseless allegations. The Magistrate has summoned the applicant vide order dated 02.11.2021 without considering the facts and law. The applicant has challenged the said order in criminal revision but the same has been dismissed vide impugned order dated 14.05.2024. The injuries shown to the complainant are wholly doubtful and that the police report, obtained on the application under Section 156(3) Cr.P.C., does not support any such incident. Referring to facts of the matter, it was submitted that both the impugned orders are liable to be set aside. Leaned counsel has placed reliance upon the following case laws:-

(i) Mahmood Ali & Ors. v. State of U.P. & Ors. 2023 INSC 684

(ii) Mahboob & Ors. v. State of U.P. Thur. Secy. Home Dpett Civil Secret. & Another 2016 LawSuit(All) 3768

(iii) State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. AIR 1992 SC 604

4. Learned A.G.A. has opposed the application and submitted that the summoning order has already been upheld by the revisional court. The complainant has sustained injuries and her version is supported by the witnesses, examined under Section 202 Cr.P.C.

5. I have considered the rival submissions and perused the record.

6. At the outset it may be mentioned that by impugned order dated 02.11.2021 applicant has been summoned to face the trial for the aforesaid offences. The applicant has preferred a criminal revision against aforesaid order dated 02.11.2021, which has been dismissed by learned Additional Sessions Judge, court No. 6, Moradabad vide impugned order dated 14.05.2024. It is correct that availing of the remedy of the revision before the Sessions Judge under Section 399 CrPC does not bar a person from invoking the power of the High Court under Section 482 but it is equally true that the High Court should not act as a second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter.

7. In Deepti aliasArati Rai v. Akhil Rai & Ors, (1995) 5 SCC 751, the Apex Court held that second revision application, after dismissal of the first one by sessions court is not maintainable and that inherent power under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. In case of Laxmi Bai Patel Vs. Shyam Kumar Patel; 2002 0 Supreme (SC) 283, the Court held:

"3. Before taking up the merits of the case, it would be proper to consider the exercise of jurisdiction under Section 482Cr.P.C. of the High Court in the facts and circumstances of the case. In a case where the sessions court exercising revisional power under Section 397(3)Cr.P.C. has dismissed the revision petition by the aggrieved party, a second revision petition about acceptance of the same party is barred. The position is well- settled that in such a case power under Section 482Cr.P.C. can be exercised by the High Court in rare cases and in exceptional circumstances where the court finds that permitting the impugned order to remain undisturbed will amount to abuse of process of the court and will result in failure of justice."

8. Similarly, in the case of Dharampal & Ors. v. Ramshri; 1993 (1) SCC 435, the Hon'ble Supreme Court held that-

" .... Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence, the High Court had clearly erred in entertaining the second revision at the instance of Respondent 1. On this short ground itself, the impugned order of the High Court can be set aside."

9. In the case of Rajathi Vs. C.Ganesan; 1999 SCC (Cri) 1118, the Court held as follows:-

"In Krishnan v. Krishnaveni(1997 (4) SCC 241 : 1997 SCC (Cri) 544), this Court explained the scope and power of the High Court under Section 482 of the Code. The question before the Court was if in view of the bar of second revision under sub-section (3) of Section 397 of the Code was prohibited, whether inherent power of the High Court is still available under Section 482 of the Code. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.''

10. Thus, it is clear that availing of remedy of revision before Sessions Judge under section 399 Cr.P.C. does not bar a person from invoking power of High Court under Section 482 Cr.P.C. but High Court can not act as a second Revisional Court under garb of exercising inherent powers. While exercising inherent powers in such a matter, the High Court can interfere only where it is satisfied that if complaint is allowed to be proceeded with, it would amount to abuse of the process of Court or that interest of justice otherwise call for quashing of the charges. While exercising its inherent powers in such a matter the Court has to be conscious of the fact that the Sessions Judge has declined to exercise his revisory power in the matter. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice and it has to be exercised sparingly and with circumspection.

11. Keeping in view the aforesaid legal position, in the instant case it may be seen that the complainant has made allegations that on 16.04.2018 applicant and others have assaulted the complainant and resultantly she has sustained injuries and that the accused persons have trespassed into her house. The version of complainant is supported by medical evidence. The version of complainant was further supported by witnesses, examined under Section 202 Cr.P.C. The Magistrate has summoned the applicant considering all attending facts. Similarly the revisional court has considered the entire facts and law and dismissed the revision. No patent illegality or perversity could be shown in the impugned orders. I have gone through the law laid down in the case of Mahmood Ali & Ors. (supra) and Mahboob & Ors. (supra) and in view of facts of the present case, said case laws do not help the applicant. Similarly, the case of applicant does not fall in any of the seven categories carved out by the Hon'ble Apex Court in the case of State of Haryana & Ors. (supra). As criminal revision against the summoning order dated 02.11.2021 has already been dismissed by the revisional court vide order dated 14.05.2024, in such situation the interference under Section 482 CrPC can only be made when there is grave miscarriage of justice or abuse of the process of the court or the required statutory procedure has not been complied with or there is failure of justice. Applying the principles set out in the judgments referred above to the case on hand, this Court is of the view that there is no compelling circumstance or exceptional circumstance warranting invocation of section 482 Cr.P.C. by this Court. Therefore, this application under section 482 Cr.P.C. deserves to be dismissed.

12. The application u/s 482 Cr.P.C. is hereby dismissed.

Order Date :- 13.11.2024

Anand