Allahabad High Court
Jai Prakash Rai @ Kailash Nath And 2 Ors vs State Of U.P. And Another on 2 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1854, 2020 (2) ALJ (NOC) 82 (ALL) 2019 (109) ACC (SOC) 99 (ALL), 2019 (109) ACC (SOC) 99 (ALL)
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved on 08.08.2019. Judgment Delivered on 02.09.2019 Court No. - 65 Case :- APPLICATION U/S 482 No. - 13549 of 2014 Applicant :- Jai Prakash Rai @ Kailash Nath And 2 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- Govt. Advocate,Daya Shanker Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Ali Hasan, learned counsel for applicants, Sri Daya Shanker, learned counsel for the opposite party no. 2, Sri G.P. Singh, learned A.G.A. appearing for State and perused the record.
2. This application under Section 482 Cr.P.C has been moved with a prayer to quash the criminal proceedings in Criminal Complaint Case No. 254 of 2013 (Leelawati vs. Jai Prakash) under sections 323, 504, 506, 427 IPC, Police Station Kerakat, District Jaunpur pending in the Court of Additional Chief Judicial Magistrate-II, Jaunpur including the summoning order dated 28.10.2013 and also a prayer is made to stay the proceedings in this case till the disposal of this application.
3. To understand the dispute better it would be appropriate to refer here the facts in brief of the case which are as follows. The opposite party no. 2 who is wife of the accused applicant no. 2 made a complaint before the Additional Chief Judicial Magistrate II, Jaunpur stating therein that 2 daughters were born out of their wedlock but no son which led to the annoyance to her husband, who kept Shakuntala daughter of Basantu/Applicant no. 3 with him and was issuing threats to the opposite party no. 2 that he would not give his property to the opposite party no. 2 and her 2 daughters namely Mamta and Babita rather the same would be written in favour of Shakuntala and regarding this the Opposite Party no. 2 has filed a suit no. 1219 of 2011, Lilawati vs Somaru. Getting annoyed due to this, the applicant no. 1 Jai Prakash Rai alias Kailash Nath, who is a man of gunda character and is involved in an offence under sections 302 IPC and is notorious for spreading terror at his instance Somaru and Shakuntala after getting bulldozer called, razed to the ground the kachcha house of the opposite party no. 2 and had stolen away her household goods. When the opposite party no. 2 resisted, all the above named three accused abused her badly and threatened opposite party no. 2 and her daughters to run away failing which they would also be done to death by using bulldozer and saying all this the opposite party no. 2 was beaten badly and when her daughter reached there to save, they were also beaten. Hearing the commotion Habibullah and various other persons of the village also reached there who intervened and witnessed the occurrence. The accused then left the place gaving threats uttering " madarchod agar koi karyavahi karegi to jan se mar kar khatm kar denge". Saving her life from the terrorism of the accused the opposite party no. 2 came to the police station Kerakat to lodge a written report which was given there, but the police did not register the same nor was she sent for medical examination nor police went to the spot and feeling frustrated the opposite party no. 2 sent a registered complaint to the Superintendent Police but when no action was taken by them, she presented the complaint dated 29/09/2013 before the court to summon the accused and punish them. The statement of the opposite party no. 2 was recorded under sections 200 Cr. P.C. in which she has stated that her entire house was demolished by the applicant nos 1 to 3. Both her daughters had been married. Her husband had kept daughter of Basantu. Her husband consumes liquor and abuses. He has written agricultural land in the name of applicant no. 3/Shakuntala. Both the daughters Mamta and Babita live with her while Shakuntala is wife of Ram Khelawan. All the three accused would get opposite party no. 2 and her daughters killed and had abused all of them regarding which a complaint was made at the police station but no action was taken. There is one bigha of land in the name of her husband, out of which half used to be sown by her while the other half by Shakuntala. As on date, the said land was being cultivated by the accused while she herself was meeting her expenditure by doing labourer's work. The entire land is in the name of her husband. The two daughters namely, Mamta and Babita have been examined under Section 202 Cr. P.C. by the trial court and both of them have given identical statements stating that their father had got annoyed with their mother and had threatened that all his movable and immovable property would be given to Shakuntala daughter of Basantu, by which their mother became perturbed and had filed an Original Suit in the court of Civil Judge Junior Division, Shahganj, Jaunpur. Due to this their father Somaru became angry and on 19/03/2013 at about 10 AM Jai Prakash alias Kailash Nath/applicant no. 1 called a bulldozer and started demolishing the kachcha house of opposite party no. 2 which was resisted by her, whereafter all the three accused started beating their mother by fists and kicks, abused her badly and when both the daughters raised alarm, hearing the same Habibullah and other persons of the village reached there and had seen the occurrence, who intervened into this matter. Accused had taken away the household articles of their mother and had issued threats while leaving the place that in case any action was taken against them they all would be eliminated.
4. After having considered the evidence cited above, the trial court has summoned the accused applicants to face trial under sections 323, 504, 506 and 427 IPC by the impugned order which is prayed to be quashed in the present proceedings.
5. By way of filing affidavit in support of the present application, it has been submitted from the side of the applicant that it was wrong submission on the part of the opposite party no. 2 that she had just two daughters, in fact three daughters were born out of the wedlock of opposite party no. 2 and the accused applicant no. 2 . The two daughters namely, Mamta and Babita had been married but unfortunately the third daughter namely Shakuntala/accused no. 3 was a poor lady who was residing with the accused applicant no. 2, her father and used to take his care and as a result of that a registered will deed was executed in her favour on 01/08/2007, true copy of which has been annexed as Annexure no. 6 to the affidavit. The opposite party no. 2 filed original suit no. 1219 of 2011, Smt. Lilawati vs Somaru for permanent injunction against the applicant no. 2, a true copy of the plaint dated 25/10/2011 has been annexed as Annexure 7 to the affidavit. The Opposite Party no. 2 has also instituted another original suit no. 840 of 2013 Smt. Lilawati and another vs Somaru and another, for cancellation of sale deed dated 11/04/2013 which was executed by the applicant no. 2 in favour of the applicant no. 3, true copy of which is annexed as annexure no. 8 to the affidavit. The applicant no. 2 is very old person aged about 72 years who is on death bed. He is not even able to walk and perform his daily routine but for the help and care taken by his daughter i.e. applicant no. 3 which led him to execute the will deed in her favour and the same has antagonised the complainant/opposite party no. 2, who is his wife who has ill intention and has filed two original suits mentioned above. From the material evidence on record no prima facie case is made out under the above-mentioned sections and hence the proceedings are liable to be quashed being malicious prosecution of the applicants in the light of law laid down in Bhajan Lal's case.
6. Per contra in counter affidavit the opposite party no. 2 has denied the facts pleaded by the applicants and has stated that a forged will deed has been executed in favour of the accused applicant no. 3/Shakuntala by the applicant no. 2. With respect to the facts averred in paragraph 10 of the affidavit, it is mentioned that the reply of the same shall be given at the stage of argument and has further stated that the applicants have beaten the opposite party no. 2 and her daughters who had witnessed the said incident and the case is made out under the above-mentioned sections.
7. Rejoinder affidavit has also been filed from the side of the applicants reiterating therein the same facts which have been mentioned in the affidavit.
8. The learned counsel for the applicants vehemently argued that only with a view to pressurising the accused applicants, this false case has been lodged against them by the opposite party no. 2 so that pressure may be exerted in the two original suits which have been filed by opposite party no. 2 against the applicant no. 2, hence it would fall in the category of malicious prosecution as per settled principle of law laid down in Bhajan Lal's case and therefore the proceedings need to be quashed against the applicants.
9. On the contrary the learned counsel the opposite party no. 2 has vehemently defended the summoning order relying upon the judgment and order dated 29/02/2008 delivered by a learned single Judge of this court in Dinesh Singh and others vs State of UP and another, 2008 lawsuit (All) 686 in which in a case under sections 494/109 IPC following was held in Para 14 of the judgment:
"[14] This Court while exercising the inherent jurisdiction cannot examine the question of sufficiency of evidence for conviction of the offence of bigamy. In paragraph 8 of the rejoinder affidavit filed by Ram Chandra Singh, the applicant No. 2 it has been stated that there is no evidence that marriage of Dinesh Singh was legally solemnized with another lady. The applicant No. 2 is the father of Dinesh Singh, the applicant No. 1, husband of sister of opposite party No. 2. the averments made in paragraph 8 of the rejoinder affidavit amount to admission of solemnization of second marriage. However, the validity of the marriage has been challenged. The accusations made in complaint and evidence of complainant and witnesses are prima-facie sufficient for proving the performance of marriage of Dinesh Singh applicant No. 1 with Santosh Kumar during the life-time of his first wife, the sister of opposite party No. 2. The decisions relied on behalf of the applicants in relation to celebration of marriage with proper ceremonies were pronounced in criminal appeals directed against the judgments and order of conviction and sentence. The present case is at the threshold. On thorough scrutiny of the material brought on record there was sufficient evidence to proceed against the applicants for the offence under Section 494/109 I.P.C. and the Magistrate concerned committed no illegality by summoning the applicants. Consequently, the application deserves dismissal."
10. It is apparent from the above citation that the fact of the second marriage was denied from the side of the accused but it was held that the decisions relied on by the applicants in relation to celebration of marriage with proper ceremonies were pronounced in criminal appeals directed against the judgement and order of conviction and sentence while in the present case the matter was at the threshold. Further it was held that the inherent jurisdiction could not be exercised in order to examine the question of sufficiency of evidence of conviction of the offence of bigamy and it was held that there was sufficient evidence to proceed against the applicants for offences under sections 494/109 IPC.
11. In the present case the opposite party no. 2 has claimed that the accused applicant no. 2 is her husband who was annoyed with her because she could not bear any male child and hence he kept a lady called Shakuntala daughter of Basantu who is made accused no. 3 in this case by her and had threatened her that his entire property would be given to Shakuntala and not to the daughters of the opposite party no. 2 or to the opposite party no. 2 herself. He actually went on to carry out that threat by executing a will deed in favour of Shakuntala in respect of land belonging to applicant no. 2 over which opposite party no. 2 claims her right along with her two daughters being legal heirs of the applicant no. 2. And it is further stated that when the opposite party no. 2 filed original suits which have been cited above, this led to further annoyance to the applicant no. 2 who along with Shakuntala and accused applicant no. 1, who is a notorious criminal have razed to the ground kachcha house of the opposite party no. 2 and the household goods had been stolen away by them and at the time of this occurrence resistance was offered by the opposite party no. 2 which resulted in her being beaten by the accused applicants and when her two daughters came to her rescue they were also beaten, abused and were threatened to be killed. On the other hand the applicant's version is that the accused no. 3/Shakuntala is the third daughter of the opposite party no. 2 and of her husband Somaru i.e. applicant no. 2, who is a poor lady who is looking after applicant no. 2, he being 72 years old person, who cannot attend to his daily routine and is lying on death bed because of which he has executed a registered will deed in her favour in respect of the property belonging to him. This has led to the annoyance of the opposite party no. 2 and her two daughters because of which the opposite party no. 2 has filed two original suits against the applicant no. 2 in order to get the said will deed cancelled as well as for permanent injunction. It is in order to create pressure in those original suits that the present false criminal case has been initiated against the applicants by the opposite party no. 2 and her two daughters only. This case is nothing but a counterblast and is a malicious prosecution which ought to be quashed in accordance with the principle of law laid down in para-102 of the Bhajan Lal's case as per Condition no. 7 which says that 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, the same could be quashed.
12. I can take assistance of the law laid down by the Hon'ble Apex court in Chilakamarthi Venkateshwarlu and another vs State of Andhra Pradesh and another, 2019 SCC Online SC 948, in which the appeal was preferred against the judgment and order dated 30/08/2018 passed by the High Court of Judicature at Hyderabad dismissing the Criminal Petition No. 9225 of 2018 filed by the appellant under sections 482 of the Criminal Procedure Code to quash the criminal proceedings in PRC no. 2 of 2018 pending against the appellants in the court of Additional Judicial First-Class Magistrate, Narsapar, West Godavari District for the offences punishable under sections 307, 323, 427, 447 and 506 (2) read with Section 34 of the Indian Penal Code. The appellants and the respondent no. 2,, being the de facto complainant, were pretty close relatives and were embroiled in Partition Suit. The appellant no. 2 had also filed a criminal complaint against the de facto complainant and others under sections 120 B, 420, 463, 464, 466, 467, 468, 469, 470 and 471 of the IPC. The appellants' case was that the de facto complainant had falsely implicated the appellants as a counterblast to the Criminal Complaint No. 518 of 2012 filed by the appellant no. 2. The case of the de facto complainant was that an attempt to cause injuries on the head was made, which was a vital organ, which could have resulted in causing death of the de facto complainant. The High Court found that the allegations in the complaint attracted the offences, punishable under the sections mentioned in the complaint and rejected the contention of the appellants that the complaint was lodged as a counterblast observing that the complaint of the second appellant was filed on 28/09/2012, whereas the instant complaint was filed on 21st July, 2015, that is after almost 3 years. The case of the appellants was that the appellant no. 1, who was working as lecturer at Hyderabad had been falsely implicated, therefore whether the appellant no. 1 was at Hyderabad when the alleged incident took place, or whether he was falsely implicated, was a question of fact which had to be decided in the trial by adducing evidence. Therefore it was held the High Court rightly concluded that it was open to the appellants to adduce evidence to show that the appellants and/or one of them was not present at the time of the alleged offence. It was further held that the pleanary inherent jurisdiction of the court under sections 482 Cr. P.C. may be exercised to give effect to an order under the Code; to prevent abuse of process of the court; and to otherwise secure the ends of justice. The inherent jurisdiction, though wide and expansive, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself, that is, to make orders as may be necessary to give effect to any order under the Code, to prevent the abuse of process of any court or to otherwise secure the ends of justice. For the Interference under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief. In exercising jurisdiction under sections 482 it is not permissible for the court to act as if it were a trial court. The court is only to be prima facie satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the court can evaluate materials and documents on record, but it cannot assess the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. The High Court should not, in exercise of jurisdiction under Section 482, embark upon an enquiry into whether the evidence is reliable or not, or whether on a reasonable appreciation of evidence the allegations are not sustainable, for this is the function of the trial Judge. This proposition finds support from the judgment of Apex Court in Zandu Pharmaceuticals Work Ltd Vs Mohd. Sharful Haque, (2005) 1 SCC 122. It was further held in this case that the High Court had rightly refused to quash the criminal complaint observing that it can excise power under Section 482 of the Cr. P.C. only in rare cases. The power to quash the proceedings is generally exercised when there is no material to proceed against the petitioners even if the allegations in the complaint are prima facie accepted as true. The High Court in effect found, and rightly, that the allegations in the complaint coupled with the statements recorded by the learned Magistrate had the necessary ingredients of the offences under sections 307, 323, 427, 447 and 506 (2) read with Section 34 of the IPC. Therefore this case was not found to be fit case to quash the criminal proceedings.
13. In the light of above cited law I would like to analyse the facts of the present case. There is dispute of the fact that whether accused applicant no. 3 was third daughter of the accused applicant no. 2 and the opposite party no. 2 born out of their wedlock or whether the accused applicant no. 3 was daughter of some Basantu as was stated by the opposite party no. 2 who was kept by the applicant no. 2 when he got annoyed from the opposite party no. 2 because she did not bear any male child. The main dispute appears to be between the two sides that the opposite party no. 2 and her daughters were deprived by the accused applicant no. 2 of his property as the will of his property had been executed in favour of Shakuntala/accused applicant no. 3. It is also stated from the side of the complainant/opposite party no. 2 that when she filed the original suit to get the said will deed cancelled and to seek injunction, feeling annoyed by that, all the accused together had beaten up accused and threatened to kill opposite party no. 2 and her two daughters and the kachcha house of the opposite party no. 2, in which she was living, was also razed to the ground by them and the household goods were stolen away. These averments have been supported by the complainant as well as her 2 daughters in their statements mentioned above, therefore it cannot be denied that on the basis of those statements the offences as mentioned above would be prima facie made out. If these allegations are taken to be true, certainly the offences of the above-mentioned sections would be made out. It cannot be held at this stage that merely because the injuries have not been found to have been caused to the opposite party no. 2, offence under Section 323 would not be held to be made out, the opposite party no. 2 has clearly stated that she approached the police but the police did not send her for medical examination. It does not appear that any grave injustice would be caused to the accused if this prosecution is allowed to continue. It does not fall in the case of rare case in which jurisdiction of 482 Cr. P.C. would need to be invoked. The theory of counterblast cannot be allowed to be pleaded in the present case from the side of the applicants. Therefore I do not see any justification in quashing the proceedings in the present case. Accordingly this application deserves to be dismissed and is dismissed.
Order Date :- 02.09.2019 AU h