Allahabad High Court
Ashok Kumar Kaushik And Another vs State Of U.P. And 2 Others on 17 January, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 84 Case :- APPLICATION U/S 482 No. - 47934 of 2019 Applicant :- Ashok Kumar Kaushik And Another Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Jai Prakash Prasad Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Counter affidavit filed today by learned AGA, is taken on record.
The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the impugned Chalani report under Section 107/116 Cr.P.C. dated 30.08.2019 submitted by opposite party no. 3 before the opposite party no. 2 under Section 151, 107, 116(3) Cr.P.C. Further prayer has been made to stay the further proceedings of the aforesaid case.
Heard learned counsel for the applicants, learned AGA for the State and perused the record.
It has been argued by learned counsel for the applicants that applicants are senior citizens and practicing lawyer at Session Court, Amroha and they have good reputation but opposite party no. 3, who is posted as Sub-Inspector at Police Station Amroha Nagar has sent frivolous report under Section 107/116 Cr.P.C. dated 30.08.2019 levelling false allegations that on account of property of Radha Krishnaji Maharaj and Shivji Maharaj, there is dispute between parties and that for maintaining peace report under Section 107/116 Cr.P.C is being forwarded. It was submitted that alleged report was sent by opposite party no. 3 on collusion with opponent of applicants and in fact there is no dispute in between the applicants. Applicants are friends having good relations and that applicant no. 1 has lodged an FIR against his opponents and to defame the status of applicants, opposite party no. 3 has sent a false report. Applicant no. 1 is president of trust Sri Radha Krishnaji Maharaj and Sri Shivji Maharaj and applicant no. 2 is trustee of said trust and no litigation is pending between applicants in civil court. It was submitted that on date of submission of notice under Section 107/116 Cr.P.C. dated 30.08.2019, there was no dispute between the applicants and the notice dated 30.08.2019 is totally false and bogus. In fact some of the opponents of the applicants, who are land grabber want to interfere in running of trust of applicants by way of creating a parallel committee and for that purpose they have got fabricated some documents and when these facts came into knowledge of applicant no. 1, he has lodged FIR against them and that at the instance of opponents of applicants, the impugned report under Section 107/116 Cr.P.C. was submitted, whereas no such circumstances existed so as to warrant any such report.
Learned AGA has opposed the prayer and argued that there was dispute between applicants and another party, (Kapil Sharma) regarding Ram Dei Mandir/Pandit Balram Mandir and in that regard, a civil case was pending and that applicant no. 1 has also lodged an FIR against Kapil Sharma and others. It was stated that there was apprehension of peace in between the parties and accordingly, report under Section 107/116 Cr.P.C. was submitted against both the parties.
At the outset, it may be mentioned that applicants are not impugning any order passed by a Court, rather they are seeking quashment of Chalani report under Section 107/116 Cr.P.C. dated 30.08.2019 submitted by police before the Sub-Divisional Magistrate. Provisions of Section 107/116 Cr.P.C. show that when an Executive Magistrate receives information that any person is likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for proceedings, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond (with or without sureties) for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.
Thus, it is apparent that after receipt of any report under Section 107 Cr.P.C., such Executive Magistrate has to issue a show-cause notice and thus, applicants have an opportunity to show their cause as to why proceedings under Section 107/116 Cr.P.C. must not be initiated, in case any such notice is issued by the concerned Executive Magistrate. Further basically inherent powers enshrined under Section 482 Cr.P.C. have to be invoked to give effect to any order or to prevent abuse of the process of any Court or otherwise to secure an ends of justice.
In the instant case as stated above, the applicants are not challenging or impugning any order passed by any Criminal Court or Magistrate. Even otherwise in counter affidavit of State, it has been specifically alleged that there was apprehension of peace in between the parties and accordingly reports for proceedings under Section 107/116 Cr.P.C. was sent against both the parties. Whether there was any such apprehension of peace between the parties or not, is a question of fact, which cannot be examined by this Court under jurisdiction of Section 482 Cr.P.C. It is well settled that the powers under Section 482 Cr.P.C. have to be invoked only in exceptional cases rather in rarest of rare cases where exercise of such extraordinary power is required to prevent the abuse of process of law or to secure ends of justice. In the instant case, this Court has been called upon to adjudge the subjective satisfaction recorded by police in its Chalani report, which still to be tested by the concerned Executive Magistrate. This Court cannot evaluate basis of such subjective satisfaction. Veracity and credibility of such allegations cannot be examined by this Court. Submissions raised on behalf of applicants called for adjudication on power questions of fact which may be adequately adjudicated upon only by concerned Executive Magistrate. This Court has to eschew itself from embarking upon an enquiry into factual aspects of matter.
Considering all aspects of matter, no case for invoking inherent jurisdiction under Section 482 Cr.P.C. to quash the impugned Chalani report is made out. Instant petition lacks merit and is, accordingly, dismissed.
Order Date :- 17.1.2020 Mohit