Allahabad High Court
Maqsood And 2 Others vs State Of U.P. And Another on 2 December, 2019
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- APPLICATION U/S 482 No. - 43473 of 2019 Applicant :- Maqsood And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Ram Krishna Gautam,J.
1. Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
2. This application under Section 482 Cr.P.C. has been filed by applicants Maqsood, Firoj and Bulla against State of U.P. and Jarrar with prayer to quash summoning order dated 02.11.2019 passed by Judicial Magistrate, Mawana, District Meerut, as well as entire proceedings of Case No. 779 of 2018, arising out of Case Crime No. 173 of 2016, under Section 420 I.P.C., P.S. Mawana, district Meerut, pending in court of J. M., Mawana, Meerut.
3. Learned counsel for the applicants argued that a case was got registered as Case Crime No. 173 of 2016, u/s 420, 467, 468, 471 I.P.C. P.S. Mawana, District Meerut, for an occurrence of 10.4.2013 on 9.4.2016 upon report of Jarrar against Maqsood, Firoj and Bulla with accusation that aforesaid persons got manufactured a compromise on a stamp paper under forged and fictitious signature of complainant thereby usurped his share. This case crime number was investigated and a final report was submitted. A protest petition was filed. Again a direction for further investigation was made, which also resulted in submission of final report. Again protest petition was filed and this final report was set aside with registration of complaint case over protest petition. Magistrate examined complainant u/s 200 Cr.P.C. and his two witnesses u/s 202 Cr.P.C. Whereupon summoning order for the offence punishable u/s 420 I.P.C. was passed by the Judicial Magistrate, Mawana, Meerut, on 2.11.2019. Whereas this matter was entirely of civil nature giving right for filing civil suit. No evidence was collected or submitted before passing the impugned summoning order. Hence it was misuse of process of law. Accordingly, this application with above prayer.
4. Learned A.G.A. has vehemently opposed the above argument.
5. From the very perusal of record, it is apparent that it was got lodged on 2.4.2016 for offences punishable u/s 420, 467, 468, 471 I.P.C. for a occurrence of 10.4.2013, wehrein on a forged and fictitious document was got prepared on a stamp paper and on the basis of this forged document share of the informant in the property was usurped. This case crime number was got investigated and the Magistrate while rejecting final report has opined that neither complainant nor his witnesses were examined by the Investigating officer. Hence further investigation was directed. But again final report was submitted with same deficiency of investigation. Hence Magistrate set aside the final report and while taking cognizance over protest petition, it was treated as a complaint case. The complainant was examined u/s 200 Cr.P.C. and his witnesses u/s 202 Cr.P.C. They are intact and with same reiteration that by playing fraud a civil suit was filed, which was withdrawn by accused and it was said upon protest made by complainant. The accused persons prepared forged and fictitious document on a stamp paper. Hence accusation of making forged and fictitious document to grab the share of the complainant was made before the Magistrate. On the basis of statements made during enquiry, the Magistrate passed the summoning order. There appears no apparent error in passing this summoning order. Rather this was substantiated by evidence on record. A prima-facie case was made out for summoning.
6. This court in exercise of its inherent jurisdiction u/s 482 Cr.P.C. is not expected to meticulously analyse the facts and evidence as it is matter of trial to be seen during trial.
7. 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".
8. 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".
9. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.
10. Accordingly, there remains nothing for any indulgence in this proceeding. The prayer for quashing summoning order as well as proceeding of the aforesaid complaint case is refused and the application u/s 482 Cr.P.C. is hereby dismissed.
11. However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within four weeks from today and apply for bail, then the bail application of the applicants 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 judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
12. For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants.
13. 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 :- 2.12.2019 Pcl