Allahabad High Court
Mahmood Alam And 3 Others vs State Of U.P. And Another on 12 March, 2021
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 80 Case :- APPLICATION U/S 482 No. - 3822 of 2021 Applicant :- Mahmood Alam And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shashi Kant Rai Counsel for Opposite Party :- G.A. Hon'ble Rajendra Kumar-IV,J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
2. The present application under Section 482 Cr.P.C. has been filed by applicants for quashing the summoning order dated 14.06.2018 in Complaint Case No. 4562 of 2017 (Azad Ali vs. Mahmood Alam & others), under Sections 323, 504, 506, 452 I.P.C., Police Station Gola, District Gorakhpur, pending in the Court of Judicial Magistrate-IInd, Gorakhpur.
3. Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case. They have committed no offence. The complainant / opposite party no. 2 herein filed a false and fabricated complaint against the applicants due to enmity after unexplained delay of two years. It is a counter blast case. He further submits that accused-applicant no. 1 Mahmood Alam has got registered an F.I.R. against complainant / opposite party no. 2 herein regarding the incident which took place on 31.12.2015 in which charge sheet has been submitted by Investigating Officer. In retaliation to that case, complainant / opposite party no. 2 herein has filed a forged complaint against the present applicants. He further argued that there is no medical report and there was no injury on the person of complainant. He showed some documents and statements in support of his contention.
4. Per contra learned AGA vehemently opposed the prayer of application and submitted that admittedly, there is a cross case and it cannot be ascertained at this stage, who was aggressor at the time of incident and entire submissions made by learned counsel for the applicants relates to factual aspect of the case which cannot be adjudicated at this stage under Section 482 Cr.P.C. Veracity of allegation and statement of witness can be adjudicated only after the evidence is adduced by the parties in the trial court.
5. According to complaint filed by complainant / opposite party no. 2, one Farida daughter of complainant was married to applicant no. 1 Mahmood Alam. On 31.12.2015 at about 11:00 a.m., accused Mahmood Alam, Azad Ali, Fakhre Alam, Maqsood and Haseebun Nisha armed with Lathi and Danda came to the house of complainant, started abusing and extended threat to kill him. All the accused persons bent upon to attack the complainant whereupon in order to save his life she entered into the house, all the accused persons chased the complainant, entered into the house and started beating with kicks and fists. On hearing alarm, witnesses reached there and saw the incident.
6. The complainant filed a complaint bearing Complaint Case No. 4562 of 2017, under Sections 323, 504, 506, 452 I.P.C. before the Magistrate concerned. Statement of complainant was recorded under Section 200 Cr.P.C. and Smt. Farida Khatoon and Saleem were also examined under Section 202 Cr.P.C. Learned Magistrate found sufficient ground for proceedings against the accused applicants and passed the impugned order of summoning.
7. It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.
8. A look at complaint and allegations made in complaint, statement of complainant and witnesses under Section 200 and 202 Cr.P.C. would show that victim / opposite party no. 2 herein, incorporated the ingredients necessary for prosecuting the accused-applicants for the offence alleged. The question whether the victim will be able to prove the allegation in the manner known to law would arise only at a later stage. It cannot be said that prima-facie case is not made out against the applicant.
9. In Rajesh Bajaj v. State NCT of Delhi & Ors., (1999) 3 SCC 259, Court has held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. If the factual foundation for the offence has been laid in the complaint, the court should not hasten to quash criminal proceedings during the investigation stage merely on the premise that one or two ingredients have not been stated with details.
10. In Md. Allauddin Khan Vs. The State of Bihar and others, (2019) 6 SCC 107, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(emphasis added)
11. Recently, Apex Court in Criminal Appeal No. 1817 of 2019 (M. Jayanthi Vs. K.R. Meenakshi and another) decided on 02.12.2019 has held:
"It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged."
12. Having considered the rival submissions made by learned Counsel for parties and keeping in view the facts and legal proposition discussed hereinabove, I do not find any good ground warranting interference in the matter. It is not a case of grave injustice.
13. Accordingly, application under Section 482 Cr.P.C. is hereby dismissed.
Order Date :- 12.3.2021 Manoj