Allahabad High Court
Mukesh Kumar Yadav And 5 Others vs State Of U.P. And Another on 6 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 21.10.2019 Judgment delivered on 6.11.2019 Court No. - 65 Case :- APPLICATION U/S 482 No. - 17155 of 2013 Applicant :- Mukesh Kumar Yadav And 5 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sameer Jain Counsel for Opposite Party :- Govt. Advocate,D.S.P.Singh,M.P.Yadav,Mrs.Sushma Devi,Rajiv Lochan Shukla Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Sameer Jain, learned counsel for the applicants and Sri Amit Kumar Singh, learned A.G.A. for the State.
2. The present application has been filed with a prayer to quash the proceedings of Case No. 5231 of 2012, under Sections 147, 452, 352, 504 and 506 IPC pending in the court of Additional Chief Judicial Magistrate,VI, Varanasi.
3. The main arguments made by the learned counsel for the applicants is that the accused-applicants have been falsely implicated by opposite party no. 2, who is real brother of the accused-applicant no. 3, while accused-applicant nos. 1 and 2 are sons of the accused-applicant no. 3 and accused-applicant nos. 4 to 6 are stated to be the companions of other co-accused, who are stated to have been involved in giving effect to the present occurrence falsely. In fact, no such occurrence has ever taken place. There is a dispute pertaining to a will between two sides and as many as 17 criminal as well as civil cases are going on between them. Out of 17 cases, about 4 to 5 cases are of criminal nature, which all are false. As regards merit of the case it is further argued that this is nothing but a malicious prosecution because in order to create pressure in the civil case, this case is slapped against the applicants and since accused-applicant nos. 1 to 3 and opposite party no. 2 are living in the same house, offence u/s 452 IPC would not be made out. As regards offences under Section 504 and 506 IPC, it is argued that they are ornamental sections and no such abusive words have been indicated in the F.I.R., which were used by the accused side against the opposite party no. 2.
4. Learned counsel for the applicants has relied upon the case of Vineet Kumar Vs. State of Uttar Pradesh and another, (2017) 13 SCC 369.
5. In the affidavit filed from the side of the applicants, it is mentioned that opposite party no. 2 had lodged an F.I.R. on 1.10.2012, under Sections 147, 452, 352, 504, 506 and 386 IPC, P.S. Shivpur, District Varanasi, registered as Crime No. 281 of 2012, in which investigation was started on 2.10.2012 and in parcha no. 2 of the case diary, Investigating Officer recorded statement of opposite party no. 2, Umanath, which is annexed as annexure 2, whereafter investigation of the matter was transferred to C.O., Cantt. on 17.10.2012, where in parcha no. 5 of the case diary, second statement of opposite party no. 2 was recorded, copy of which is annexed as annexure 3. In parcha no. 6 of the case diary, Investigating Officer recorded statement of Kalawati Devi, Ranjita Yadav and Guru Prasad, whose statements are similar and are annexed as annexure-4. In parcha no. 8 of the case diary, Investigating Officer recorded statements of Sanjiv, Kailash, Dilip, Shiv Kumar and Lallu Sonkar, who have also repeated the same version as given by the opposite party no. 2 and Guru Prasad and thereafter has submitted charge sheet under sections 147, 452, 352, 504 an 506 IPC only. All the allegations made in the complaint are totally false as neither applicants entered in any portion of the house of opposite party no. 2 nor had they ever abused or threatened them. A Civil Suit No. 161 of 2004, (Umanath Vs. Badri and others) is pending in the court of Civil Judge, (Sr. Division), Varanasi for partition. Another Civil Case No. 901 of 2010 (Umanath Vs. Guru Prasad and others) is pending in the court of Civil Judge, Sr. Division for cancellation of registered will, in which applicant nos. 1 to 3 are parties as opposite party nos. 3, 4 and 5. The present case has been lodged by the opposite party no. 2 with ulterior motive. The opposite party no. 2 had also lodged another F.I.R. against applicants at P.S., Cantt., District Varanasi, under Section 419, 420, 467, 468, 472, 120B IPC being Crime No. 370 of 2011 concerning above will, which clearly shows that opposite party no. 2 is continuously dragging applicants in criminal cases and present case is outcome of the same enmity, which is also evident from the bail order dated 4.9.2012 of accused-applicant nos. 2, 3 and 4 in Crime No. 370 of 2011, which is annexed as Annexure-6. Further it is mentioned that opposite party no. 2 had also filed an application under Section 156(3) Cr.P.C. on 25.3.2013 against applicant nos. 1 to 4 with the allegation of theft, which was registered as Misc. Application No. 35 of 2013, which is still pending in the court of VIth ACJM, Varanasi, which indicates that due to civil dispute, opposite party no. 2 is using criminal cases as a weapon by falsely implicating them in various criminal cases and the instant case is only one out of the said chain of false cases, a copy of the said application is annexed as Annexure-7. It is further mentioned that opposite party no. 2 on 7.9.2012 had lodged an NCR against accused-applicant nos. 1, 2, 5 and 6, under Section 506 IPC at P.S. Shivpur, number of which was N.C.R. No. 212 of 2012. There is no substantial evidence on record as none has received injury. It is wrongly mentioned in the said F.I.R. as well as in statements that accused-applicant nos. 1 to 3 and opposite party no. 2 reside in house no. 1/101, while the fact is that in the said house only applicant nos. 1, 2 and 3 reside and opposite party no. 2 resides in house no. 1/102 situated on the same land, hence no prima facie case is made out against the accused-applicants under the above mentioned sections and the charge sheet needs to be quashed.
6. From the side of opposite party no. 2, none has appeared, however, counter affidavit dated 21.11.2014 was filed in which it is mentioned that Investigating Officer has rightly submitted charge sheet against applicants on the basis of evidence collected during investigation and learned Magistrate too had issued summons to accused-applicants rightly having taken cognizance. The opposite party no. 2 and applicant no. 3 are living separately in a different house along with their family members, though both the parties were residing in the same Arazi. Complainant resides in the first floor of the house, while accused-applicants are residing on the ground floor of the said house and rest of the contentions made from the side of applicants in affidavit have been denied and prayer is made that quashing of the proceedings should be refused.
7. Learned A.G.A. vehemently opposed the prayer of quashing of the charge sheet.
8. One more counter affidavit filed from the side of the opposite party no. 2 dated 10.8.2015 is on record, in which it has been flatly denied that any such occurrence took place and that civil remedy was available to the opposite party no. 2 and no criminal case would lie and it is also false to say that opposite party no. 2 was victimizing the applicants.
9. From the side of the applicants, rejoinder affidavit dated 12.4.2017 is on record, in which the same averment, which have been mentioned in the main affidavit, have been reiterated.
10. I have gone through the F.I.R., it is recorded in it by opposite party no. 2 that he is resident of house no. 1/101, Chuppepur Gilat Bazar, P.S. Shivpur, District Varanasi, who is old and peace loving person. His 'pattidar' Mukesh Kumar (accused-applicant no. 1) and Ravi Kumar (accused-applicant no. 2), both Sons of Badri Nath Yadav, Badri Nath (accused-applicant no. 3) S/o late Baij Nath Yadav, Kashi Nath (accused-applicant no. 4) and two three other persons i.e. Vijay Shankar, Raju Sonkar (accuse-applicant no. 5) S/o Sohan, Lal Ji Yadav (accused-applicant no. 6) S/o late Jagar Nath, who is person of high handed nature who illegally occupies properties has come out on bail few days ago. They all on 10.9.2012 at about 9:30 came to the house of opposite party no. 2 armed with illegal weapons and also starting abusing in filthy language and also challenged opposite party no. 2. They all entered into the house of opposite party no. 2 from the main gate inside his 'Baithak' and were demanding Rs. 50,00,000/- as Gunda Tax and had given warning that if the said amount was not paid to them within 3 days, his only son would be murdered and his property would be illegally occupied. This occurrence had been seen by the opposite party no. 2 and his family members from the windows, while leaving the said place, they (accused) uttered that they would see as to for how long the said house remains locked. By this occurrence, whole family of the opposite party no. 2 was in apprehension that anyone of his family members could be murdered as this threat was given. An N.C.R. of this occurrence was got registered by him at P.S., Shivpur and prayed that occurrence was witnessed by many people, hence F.I.R. may be lodged.
11. The Investigating Officer after investigation has submitted charge sheet in this case after having recorded statements of as many as four witnesses of fact namely, Umanath, Kalawati Devi, Ranjita Yadav and Guru Prasad Yadav and Sanjeet Kumar, besides four others formal witness, and has submitted charge sheet against accused applicants under the above mentioned sections.
12. The main thrust of the argument of learned counsel for the applicants is that they have been falsely implicated in this case only because of civil disputes pending between them regarding partition and cancellation of will and this has led to lodging of several criminal cases from the side of the opposite party no. 2, which are all false and the present case is nothing but one of those cases out the said chain of criminal cases, which has been falsely lodged against the applicants only in order to build pressure in civil suits, which are pending and have been mentioned above.
13. While arguing before this Court, learned counsel for the applicants did admit that the witnesses, statements of whom, have been recorded by the Investigating Officer have supported the prosecution version as given in the F.I.R. but he would like to seek quashing of the proceedings only on the ground of present proceedings being malicious.
14. He has relied upon Vineet Kumar's case (supra). The facts of this case were that complainant, her husband and son had taken different amounts totalling twenty two lakhs fifty thousand, in the month of May, 2015 for business/shop purposes from the appellant-accused. Three agreements were written on non-judicial stamp papers on 29.5.2015, 1.6.2015 and 31.8.2015, wherein the complainant, her husband and son had acknowledged receipt of money. Cheques of Rs. six lakhs, fourteen lakhs and fifty thousand were given to the appellant-accused for ensuring the repayment. When the cheques were dishonoured the accused-appellant filed complaint under Section 138 N.I. Act in the month of September, 2015 against the complainant, her husband and son for non payment of amount. Thereafter, on 30.10.2015, the complainant filed an application under Section 156(3) Cr.P.C. against all the three accused alleging commission of offence under Section 376(d), 323 and 452 IPC alleging that on 22.10.2015 at about 7:30 p.m. all the accused came to her house and when she was alone started misbehaving with her. They beat her and then raped her one after other. On arrival of the complainant's husband, the accused-fled away.
15. It was held by the Ho'ble Apex Court in this case that there was sufficient material on record to indicate that there was financial transactions between the accused-appellant and complainant, her husband and son. On dishonour of cheques issued by the complainant husband and son, proceedings under Section 138 N.I. Act were already initiated by the accused. All the family members of the complainant were living in the same house. The brother of complainant's husband and his wife in their statements before the I.O. admitted monitory transactions of his brother with the accused, however, they denied alleged occurrence of rape in the statement before I.O., which was part of the case diary. Further there was no medical examination got done on the date of incident or even on the next day i.e. on 7.11.2015 when the I.O. asked the complainant and her son to get done the medical examination. Subsequently, the same was done on 20.11.2015 which was wholely irrelevant. Apart from bald assertions made by the complainant that all the accused had raped her, there was nothing which could have led the court to form opinion that the present case was a fit case in which prosecution ought to have been launched. Though the statement given by prosecutions/complainant under Section 164 Cr.P.C. was not to be lightly brushed away but the same was required to be considered along with antecedents, facts and circumstances noted above. The inherent power of the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case the solemn process of court is sought to be abused by a person with some oblique motive, the court has to thwart the attempt at the very threshold and accordingly quashed the proceedings in this case.
16. The facts of above mentioned case are totally different from the facts of the case in hand. In the present case, F.I.R. shows that the accused-applicant nos. 1 to 3 and opposite party no. 2 are living on the same piece of land on which on the ground floor live the accused-applicants, while on the first floor lives the opposite party no. 2 and there are separate house numbers also which have been mentioned in the F.I.R. and also it has come in evidence, therefore, to say that the accused-applicants were living in the same house with the opposite party no. 2 cannot be held to be true as despite the fact that the premises were the same but they were living separately and there appears to be some dispute between them pertaining to partition and also pertaining to some will, which appears to be the basis of ownership of the respective parties regarding which in civil suits, the matter is under consideration before the competent courts. Besides these civil litigation, it is admitted to the learned counsel for the applicants that several other criminal cases are also pending between the parties, most of which are initiated by opposite party no. 2 in order to build pressure upon the accused-applicants to pressurize them in the civil cases.
17. It cannot be lost sight of that civil litigation often generates animosity between the parties which often leads to filing of this kind of cases as is before this Court at hand, therefore, to say that because of the civil litigation, false implication is there in the present case cannot be taken to be gospel truth particularly when the Investigating Officer has recorded statements of as many as five witnesses of fact and has found prima facie to be made out under the above mentioned sections.
18. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, 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 applicant 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)
19. In view of above position of law, this Court does not deem it proper to interfere in the present proceedings because to judge as to whether statements of witnesses are false, is possible only when the full trial takes place. This application u/s 482 Cr.P.C. deserves to be dismissed and is, accordingly, dismissed.
Order Date :- 6.11.2019 /A.P. Pandey