Allahabad High Court
Pankaj Dubey And 2 Others vs State Of U.P. And Another on 9 September, 2020
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 74 Case :- APPLICATION U/S 482 No. - 13484 of 2020 Applicant :- Pankaj Dubey And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Prem Shanker Mishra,Chandra Bhushan Mishra Counsel for Opposite Party :- G.A Hon'ble Ram Krishna Gautam,J.
This application U/S 482 Cr.P.C. has been filed seeking quashing of the charge sheet dated 26.05.2019 filed against the applicant no. 1 namely Pankaj Dubey, under Section 352, 323, 504, 506, 354(A) I.P.C. and 7/8 of POCSO Act and against applicant nos. 2 and 3, namely, Pintu Dubey and Munnu Dubey, under Sections 352, 323, 504, 506 I.P.C. as well as cognizance order dated 25.02.2020, passed by learned Special Judge (POCSO Act), Allahabad, in Session Trial No. 68 of 2020 (State of Pankaj Dubey and others), arising out of Case Crime No. 98 of 2019, under Sections 352, 323, 504, 506, 354(A) I.P.C. and 7/8 of POCSO Act, Police Station Meja, District Prayagraj.
Learned counsel for the applicants argued that charge sheet has been filed on no evidence. It was an occurrence of morning, wherein victim slipped and got injured. Medico Legal Report reveals injuries of all the three victims. They are simple. No accusation was there in the statement of informant and his one daughter. The statement of prosecutrix, recorded under Section 164 Cr.P.C., is afterthought and concocted. Magistrate took cognizance in routine. It was an abuse of process of law. Hence, this proceeding.
Learned A.G.A. has vehemently opposed From the very perusal of first information report, it is apparent that occurrence took place at about 7 A.M. on 6th February, 2019 and the report was got lodged on the same day at 13.21 P.M.. It was reported by Smt. Vimla Jaiswal against Pankaj Dubey, Pintu Dubey and Munnu Dubey, with specific accusation of occurrence of 7 A.M., wherein informant's daughter Komal was outraged her modesty by Pankaj Dubey. This was protested by her, when Pankaj Dubey extended threat and assaulted her. She came back to her home, made complaint to her mother, who went to the house of Pankaj Dubey for lodging protest, where Pintu Dubey and Munnu Dubey did assault by hands, fists and abused them all. All were injured. Hence, this report was got lodged. Meaning thereby, the sequence of offence was very specific and it was Pankaj Dubey, who outraged modesty of Komal and when protest was lodged, all those three gave assault, as above, and this narration is specific in the statement of Komal, recorded under Section 164 Cr.P.C. Assault, as above, and threat have been reported in statement of other victims in their statements, recorded under Section 161 Cr.P.C.. Investigating Officer was conscious enough to file charge sheet for offences, which were made out against Pankaj Dubey and offence for which rest two accused were responsible. Accordingly, Magistrate has taken cognizance. Hence, there is no abuse of process of law, requiring any indulgence.
Moreso, saving of inherent power of High Court, as given under Section 482 Cr.P.C, provides that nothing in this Code 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 this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Meaning thereby this inherent power is with High Court (I) to make such order as may be necessary to give effect to any other order under this Code (II) to prevent abuse of the process of any Court (III) or otherwise to secure the ends of justice. But Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844 has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent Hamida v. Rashid, (2008) 1 SCC 474, hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded "Inherent jurisdiction under Section 482 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." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings".
Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".
Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.
This Court in exercise of inherent jurisdiction, under Section 482 Cr.P.C., is not expected to make factual analysis of facts and evidence, rather it is to be seen by the trial court. Hence, this application merits its dismissal. Dismissed as such.
However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
Order Date :- 9.9.2020 NS