Allahabad High Court
Tasleem Ahmad vs State Of U.P. And Another on 18 February, 2020
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- APPLICATION U/S 482 No. - 5106 of 2020 Applicant :- Tasleem Ahmad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Om Prakash Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajendra Kumar-IV,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.
2. This application under Section 482 Cr.P.C has been filed with the following prayer:-
"to quash the impugned summoning order dated 01.11.2019 passed by Civil Judge (S.D.)F.T.C./A.C.J.M District Bijnor in Complaint Case No. 1112 of 2019, under section 406 IPC (Firoza Vs. Tasleem Ahmad and Others), Police Station Mahila Thana, District Bijnor as well as quash the entire proceedings of Complaint Case No. 1112 of 2019 (Firoza Vs. Tasleem and Others), under section 406 IPC, Police Station Mahila Thana, District Bijnor.
3. Learned counsel for the applicant has submitted that applicant is innocent and he has been falsely implicated in the present case on account of enmity. It has been further submitted by him that there is a dispute between the applicant and opposite party no. 2 Firoza. He has next submitted that entire materials and ornaments which the complainant demanded has been earlier taken by her and nothing was entrusted to applicant and the applicant is ready to keep his wife with him. It has been further submitted that despite this case other case has been filed by the complainant in which court has referred the matter to the Mediation Center of this Court and the present litigation has been instituted by the complainant only for harassing and humiliating the applicant. He showed some documents and statements in support of his contention.
4. On the other hand learned A.G.A opposed the application and submitted that all the cotentions submitted by learned counsel for the applicant at Bar, relate to fact of the case which cannot be considered at this stage under section 482 Cr.P.C.
5. The brief facts which need to be noted for disposal of the present application are as fallows:-
5. (i) Smt. Firoza filed a complaint against the accused/applicant and two others persons under section 406 IPC in the court of F.T.C./Civil Judge (Senior Division)/A.C.J.M, Bijnor stating that material and ornaments received from her maternal home was entrusted to accused/applicant on condition that it would be handed over on her demand, but accused/applicant refused to give them back and prayed that accused persons be summoned for trial.
5 (ii) Trial court recorded the statement of complainant under section 200 Cr.P.C and the statement of her witnesses Rahmat Ali and Idrish under section 202 Cr.P.C. Learned Magistrate found prima-facie case and sufficient ground for proceeding against the accused and summoned him for facing trial under section 406 IPC by the impugned order.
6. In Anil Arya v. State of U.P. and Others, Criminal Revision No. 1216 of 2005, decided on 09.09.2016, this Court held as under :-
"Whether evidence is correct or not or credible enough or not to sustain conviction and punishment is a matter which would be seen after applicants put in appearance, lead evidence and thereafter Trial Court examine the entire evidence and record its finding thereon, but at the stage of summoning of applicants on the basis of aforesaid statement in Trial under Section 319 Cr.P.C., the probable defence of accused summoned under Section 319 Cr.P.C. cannot be examined for the first time in a revisional jurisdiction by this Court."
7. In Md. Allauddin Khan Vs. The State of Bihar and others, (2019) 6 SCC 107, Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 12, 13 and 14 said as under :-
"12. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
13. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
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."
8. Facts of the present case does not fall under any circumstances mentioned in Para No. 102 of State of Haryana, and Others v. Bhajan Lal and Others, 1992 Supp. (1) SCC 335 which reads as under :-
"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 226 or 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."
9. Considering the facts and circumstances of the case, allegations made in complaint it cannot be said that no prima facie case is made out against the accused applicant. Entire submissions made at bar relates to factual aspect of the case which cannot be considered at this stage, it is not a case of grave injustice and I do not find any compelling reasons to interfere in the matter.
10. Application under Section 482 Cr.P.C. fails and is accordingly dismissed.
Order Date :- 18.2.2020 Vikram