Patna High Court
Syed Nooruddin Ashraf & Ors vs The State Of Bihar on 22 August, 2016
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.54199 of 2013
Arising Out of PS.Case No. -120 Year- 2009 Thana -GARDANIBAGH District- PATNA
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1. Syed Nooruddin Ashraf S/O Late Syed Azizuddin Ashraf
2. Syed Qamruddin Ashraf S/O Late Syed Azizuddin Ashraf
Both resident of Aziz Manzil Chitkohra, P.S- Gardanibagh, District- Patna-
800002.
3. Bhola Paswan @ Kamla Paswan S/O Late Raja Paswan
4. Umesh Paswan S/O Late Raja Paswan
5. Baleshwar Paswan S/O Late Ragho Paswan
6. Birendra Paswan S/O Baleshwar Paswan
Nos. 3 to 6 are residents of Mohalla Chitkohra, P.S- Gardanibagh, District-
Patna-800002
.... .... Petitioners
Versus
The State of Bihar
.... .... Opposite Party
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Appearance :
For the Petitioner/s : Mr. T. N. Maitin, Sr. Advocate
Md. Shahid Siddiqui, Advocate
Mr. Anisul Haque, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 22-08-2016
This application under Section 482 of the Code of
Criminal Procedure, 1973 (for short „CrPC‟) has been directed
against the order dated 12.04.2010 passed by the learned Chief
Judicial Magistrate, Patna in Gardanibagh P. S. Case No. 120 of
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2009 lodged by the informant against the petitioners whereby the
learned Chief Judicial Magistrate, Patna has summoned the
petitioners to face trial for the offences punishable under Sections
341, 323 and 504/34 of the Indian Penal Code (for short „IPC‟).
2. In the FIR dated 14.07.2009 lodged by the
informant, it is alleged that on 14th July, 2009, at about 9.45 am, the
informant was standing at his shop-"Rozy Shoe House" situated at
Chitkohra Bazar, then petitioner no.2 Syed Qamruddin Ashraf and
petitioner no. 1 Syed Nooruddin Ashraf, both sons of Syed
Azizuddin Ashraf, along with petitioners no. 3 to 6, namely, Bhola
Paswan @ Kamla Paswan, Umesh Paswan, Baleshwar Paswan and
Birendra Paswan respectively assaulted him with legs and fists.
They also assaulted one Mushtari Khatoon. It is also alleged that
petitioners no. 1 and 2 also abused them and petitioner no. 3 Bhola
Paswan snatched Rs.2000/- from the pocket of the informant.
3. On completion of investigation, the police
submitted charge-sheet against the petitioners under Sections 341,
323 and 504/34 of the IPC pursuant to which, vide impugned order
dated 12.04.2010, learned Chief Judicial Magistrate, Patna found a
prima facie case to be made out under Sections 341, 323 and
504/34 of the IPC against the petitioners and summoned them to
face trial.
4. It is submitted by Mr. T. N. Maitin, learned
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Senior Counsel for the petitioners that at the time of occurrence,
petitioner no. 1 Syed Nooruddin Ashraf, aged about 64 years, was a
professor of English in A.N. College, Patna and petitioner no. 2
Syed Qamruddin Ashraf, aged about 60 years, is a chartered civil
engineer whereas petitioners no. 3 to 6 are their employees, who
used to collect rent from their tenants. It is submitted that petitioner
no. 2 is the landlord of the shop in which the alleged "Rozy Shoe
House" was running. He had filed Eviction Suit No. 21 of 1999 for
eviction of the said tenanted shop against its tenant Md. Shekhu and
said Eviction Suit was decreed in his favour. Thereafter, petitioner
no. 2 filed Execution Case No. 5 of 2002, for execution of the
decree of eviction passed in Eviction Suit No. 21 of 1999. The
informant Firoz Ahmad @ Shekhu also filed Title Suit No. 2 of
2002 in respect of the said shop against the petitioner no. 2, which
was also dismissed, vide judgment dated 24.12.2003. It is
submitted that Misc. Case No. 2 of 2003 filed by the informant in
Execution Case No. 5 of 2002 resisting the said decree of eviction,
was also decided in favour of petitioner no. 2 by learned Execution
Munsif, Patna, vide final order dated 15.06.2009. Thereafter, under
the order of Execution Munsif, delivery of possession of the said
shop in question was effected by the Nazir of the court on 14th July
2009 and, on the same date, a malicious FIR was lodged by the
informant of the case in order to humiliate, harass and blackmail
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the petitioners.
5. It is urged by learned Senior Counsel appearing
for the petitioners that though the police had submitted charge-
sheet against the petitioners on completion of investigation, the
materials collected during investigation itself would demonstrate
that the police had doubted the veracity of the prosecution case. He
has also contended that during the pendency of the application,
substance of accusation was explained to the petitioners on 3rd May,
2014 and, since then, the matter has been adjourned from one date
to another on several occasions for examination of witnesses on
behalf of the prosecution, but no witness has turned up so far to
depose before the court.
6. On the other hand, Mr. Jharkhandi Upadhyay,
learned Additional Public Prosecutor for the State has opposed the
present application. He has submitted that the allegations made in
the FIR do attract the ingredients of the offences alleged. In course
of investigation the police found the allegations to be true and a
report under Section 173(2) of the CrPC was filed in the court
against the petitioners pursuant to which the learned Chief Judicial
Magistrate took cognizance of the offences. He has submitted that
the defence of the petitioners can be looked into by the trial court at
an appropriate stage during trial, but the same cannot be made
ground for quashing of a bona fide criminal prosecution.
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7. I have heard learned counsel for the parties and
perused the record.
8. It would be apparent from the unimpeachable
documents brought on the record that the petitioner no. 2 is the
landlord of the shop in which "Rozy Shoe House" was running. He
had filed Eviction Suit No. 21 of 1999 for eviction of the tenant
from the said tenanted premises and a decree was passed in his
favour. Whereafter, he filed Execution Case No. 5 of 2002 in
Eviction Suit No. 21 of 1999, which was decided in favour of the
petitioner no. 2, vide final order dated 15 June, 2009. The certified
copy of the report of Nazir, dated 14th July, 2009, as contained in
Annexure-6 to the present application, would also reflect that Nazir
of the court effected the delivery of possession of the shop in
question on 14th July, 2009 to petitioner no. 2 and on the same date
the FIR of the case, in question, was instituted. I also find that
Misc. Case No. 2 of 2003 filed by the informant resisting the
aforesaid eviction decree was also decided against him.
9. In the aforesaid background of the facts, when I
look to the allegations made in the FIR, I find force in the
submission made by the learned Senior Counsel for the petitioners
that a malicious FIR was lodged by the informant of the case in
retaliation to eviction of the informant from the tenanted premises.
10. It is true that certain allegations have been made
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in the FIR against the petitioners and on completion of
investigation the police have submitted charge-sheet against them
for the offences punishable under Sections 341, 323 and 504/34 of
the IPC, but the impugned order dated 12.04.2010 passed by the
learned Chief Judicial Magistrate, Patna does not show any
application of mind. It had been passed on a printed format by
filling up the blanks. The need for proper application of mind by
the courts at the stage of summoning has been highlighted by the
Apex Court in Pepsi Foods Ltd. & Anr. vs. Special Judicial
Magistrate & Ors. reported in (1998) 5 SCC 749. The Apex Court
has held that summoning of an accused in a criminal case is a
serious matter and criminal law cannot be set into motion as a
matter of course. It has also been held that before summoning of
the accused the Magistrate has to carefully scrutinize the evidence
brought on the record. As noted above, the impugned order has
been passed in very casual and mechanical manner by simply filing
up the blanks on a pre-prepared printed format. It is equally true
that an elaborate order is not required to be passed at the stage of
taking cognizance and issuing summons, but the order must at least
disclose that there has been an application of mind.
11. Keeping in mind the facts of the case and the
manner in which the impugned order has been passed, this Court
would like to consider the ambit and scope of Section 482 of the
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CrPC under which the present application has been filed. Section
482 of the CrPC states that nothing in the CrPC shall be deemed to
limit or affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order under the
CrPC, or to prevent abuse of the process of any court or otherwise
to secure the ends of justice.
12. In State of Karnataka vs. Muniswamy &
Ors., reported in (1977) 2 SCC 699, the Supreme Court observed
that the wholesome power under Section 482 of the CrPC entitles
the High Courts to quash a proceeding when it comes to the
conclusion allowing the proceeding to continue would be an abuse
of the process of the court or that ends of justice require that the
proceeding ought to be quashed. The High Court has been vested
with inherent powers both in civil and criminal matters, to achieve
salutary public purpose, a court proceeding ought not to be
permitted to degenerate into a weapon of harassment or
persecution. The Supreme Court also observed that ends of justice
are higher than the ends of mere law though justice must be
administered according to laws made by the legislature.
13. In Chandrapal Singh & Ors. vs. Maharaj
Singh & Anr., reported in (1982) 1 SCC 466, in a landlord-tenant
matter where criminal proceeding had been initiated, the Supreme
Court observed as -"a frustrated landlord after having met his
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waterloo in the hierarchy of civil courts, has further enmeshed the
tenant in a frivolous criminal prosecution which prima facie
appears to be an abuse of the process of the law. The facts when
stated are so telling that the further discussion may appear to be
superfluous." In the said judgment, the Supreme Court noticed the
tendency of perjury is very much on the increase and unless by firm
action courts come down heavily upon such persons, the whole
judicial process would come to ridicule. The Court also observed
that chagrined and frustrated litigants should not be promoted to
give vent to their frustration by cheaply invoking the jurisdiction of
the criminal court.
14. In State of Haryana & Ors. vs. Bhajan Lal &
Ors., reported in 1992 Supp (1) 335, the Supreme Court has given
certain guiding principles for invoking the powers under Section
482 of the CrPC which are as follows:-
"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
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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
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private and personal grudge."
15. Having considered the ambit and scope of
Section 482 of the CrPC in the light of the ratio laid down in the
various decisions, as noted above, this Court is of the opinion that
the present case falls in category 5 and 7 of the guiding principles
laid down by the Supreme Court in the matter of State of Haryana
vs. Bhajan Lal (supra). In the present matter, it would appear that a
frustrated tenant after having met his waterloo before the civil court
has enmeshed the landlord in a vexatious and malicious criminal
prosecution.
16. In the opinion of this Court, no useful purpose
would be served by allowing the criminal prosecution to continue
further.
17. Accordingly, the impugned order dated
12.04.2010passed by the learned Chief Judicial Magistrate, Patna in Gardanibagh P. S. Case No. 120 of 2009 and all subsequent proceedings arising out of the said case, are hereby quashed.
18. The application stands allowed.
(Ashwani Kumar Singh, J.) Kanchan/-
U T