Allahabad High Court
Arun Kumar And 4 Others vs State Of U.P.And Another on 5 September, 2022
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- APPLICATION U/S 482 No. - 23214 of 2022 Applicant :- Arun Kumar And 4 Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Akhilesh Singh,Shivam Yadav Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
Heard Shivam Yadav, learned counsel for applicant and Shri.Chandan Agarwal, learned A.G.A.
By means of this application applicants have prayed for quashing the entire proceedings as well as the impugned summoning order dated 26.5.2022 in Complaint Case No.705 of 2022, (Amit Kumar Vs. Arun Kumar & ors) arising out of Case Crime No.0449 of 2021 under Sections 147, 323, 504, 506, 336, 427, 394 of I.P.C., Police Station-Kalan, district-Shahjahanur, pending in the court of Civil Judge (J.D./Judicial Magistrate, Jalalabad, Shahjahanpur, whereby the learned Civil Judge (J.D./Judicial Magistrate, Jalalabad, Shahjahanpur, has allowed the Protest Petition of the Opposite Party no.2 and summoned the applicants for the offence punishable under Section 147, 323, 504, 506,336, 427 and 394 of I.P.C.
Learned counsel for applicants submits that one of the applicant has made a complaint against O.P.No.2 who is Pradhan of the village regarding illegal construction and for that a team of officials visited the village on 18.8.2021 when the applicants and their associates assaulted O.P. No.2 and his associates and committed robbery of Rs. 5000/- and in this regard an F.I.R. was lodged on the same date against nine accused persons including O.P. No.2 for the offence committed under Sections 147, 323, 506, 394, 427 of I.P.C. Police Station-Kalan district-Shahjahanpur wherein investigation is pending.
As a counterblast and to give it a different picture to the above occurrence, O.P. No.2 lodged an F.I.R. against the applicants narrating the occurrence that it was the applicants who assaulted the O.P.No.2 and his associates and the F.I.R. was lodged on 27.8.2021 with a delay of about 9 days. Investigation was carried out on the said F.I.R. and it was found that the allegations were false and Final Report was submitted on 19.10.2021.
The O.P. No.2 filed a protest petition the the learned Magistrate passed an order treating the same as a complaint and after recording the statements under Sections 200 and 202 Cr.P.C., summons were issued.
Learned counsel for applicants submits that one of the applicant is a whistleblower and only because relevant documents may not inspected by the team of officials, they made a concocted story that the applicants not only assaulted O.P.No.2 and his associates but torn the documents, the statement of the O.P.No.2 was frustrated when the Final Report was submitted. However, in the complaint case though they have narrated the statement recorded under Sections 200 and 202 Cr.P.C., the learned Magistrate took cognizance without appreciating that there was an F.I.R. filed against O.P.No.2 and his associates by the applicants wherein investigation is pending and on the F.I.R. lodged by the O.P. No.2, final report was submitted. He further submits that there is no injury report and no case is made out against the applicants and it is abuse of process of law.
Per contra, learned A.G.A. has supported the order passed by the learned Magistrate on the basis of complaint, statement recorded under Sections 200 and 202 Cr.P.C., prima-facie case is made out against the applicants for the offence under Sections 147, 323, 504 , 506, 336, 427 and 394 of I.P.C. and the learned Magistrate has rightly summoned the applicants vide order dated 26.5.2022.
The law with regard to interference under inherent jurisdiction of issue of process on complaint case is well settled which is summarized in following paragraphs:
(I) The procedural scheme in respect of the complaints made to Magistrate is provided under Chapter XV of the Code of Criminal Procedure. On a complaint being made to a Magistrate, he is required to examine the complainant on oath and the witnesses, if any, (Sections 200 and 202 Cr.P.C.) and then on considering the complaint and the statements on oath, if he is of the opinion that there is no sufficient ground for proceeding, the complaint shall be dismissed after recording brief reasons (Section 203 Cr.P.C.). Section 201 Cr.P.C. states that in case Magistrate who is not competent to take cognizance of the offence he shall, (i) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (ii) if the complaint is not in writing, direct the complainant to go to the proper Court.
(II) The Magistrate may on receipt of a complaint of which he is authorised to take cognizance proceed with further inquiry into the allegations made in the complaint either himself or direct an investigation into the allegations in the complaint to be made by a police officer or by such other person as he thinks fit for the purpose of deciding, whether or not there is sufficient ground for proceeding (Section 202 Cr.P.C.), in that event, the Magistrate in fact postpones the issue of process. It is Provided in Section 202 Cr.P.C. that no such direction for investigation shall be made, (i) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or (ii) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200 Cr.P.C.. In an inquiry under Sub-Section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath, provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(III) On conclusion of inquiry by himself or on receipt of report from the police officer or from such other person who has been directed to investigate into the allegations, if, in the opinion of Magistrate taking cognizance of an offence there is no sufficient ground for proceeding, complaint is dismissed under Section 203 Cr.P.C. or where the Magistrate is of the opinion that there is sufficient ground for proceeding, then a process is issued.
(IV) In case of a complaint under Section 200 Cr.P.C. a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding.
(V) The words 'sufficient ground', used under Section 203 Cr.P.C. have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction (para 15 of S.W. Palanitkar Vs State of Bihar: (2002) 1 SCC 241). "...All that he (Magistrate) has to see is whether or not there is 'sufficient ground for proceeding, against the accused. At this stage magistrate is not to weigh the evidence meticulously as if he were the trial court. The standard to be adopted by the magistrate in scrutinizing the evidence is not the same as the one which is to be kept in view at the stage of framing charges." (para 10 of Kewal Krishnan S/o Lachman Dass Vs Suraj Bhan and Ors 1980 Supp SCC 499).
(VI) The object of investigation under Section 202 Cr.P.C. is "for the purpose of deciding whether or not there is sufficient ground for proceeding". The enquiry under Section 202 Cr.P.C. is to ascertain the fact whether the complaint has any valid foundation calling for issuance of process to the person complained against or whether it is a baseless one on which no action need be taken. The law imposes a serious responsibility on the Magistrate to decide if there is sufficient ground for proceeding against the accused. The issuance of process should not be mechanical nor should be made as an instrument of harassment to the accused. Issuance of process to the accused calling upon them to appear in the criminal case is a serious matter and lack of material particulars and non-application of mind as to the materials cannot be brushed aside on the ground that it is only a procedural irregularity (Para 60 of Birla Corporation Limited Vs Adventz Investment and Holdings Limited and Ors : (2019) 16 SCC 610).
Inherent Jurisdiction of the High Court and interference with issue of process:-
(I) Apex Court in Paras 83, 87 and 88 of Birla Corporation Limited (supra) has observed that:-
"83. It is well settled that the inherent jurisdiction under Section 482 Cr.P.C. is designed to achieve a salutary purpose and that the criminal proceedings ought not to be permitted to degenerate into a weapon of harassment. When the Court is satisfied that the criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon the accused, in exercise of the inherent powers, such proceedings can be quashed. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Others (1976) 3 SCC 736, the Supreme Court reviewed the earlier decisions and summarised the principles as to when the issue of process can be quashed and held as under:-
"5. ??... Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
"87. In Madhavrao Jiwajirao Scindia and Others v. Sambhajirao Chandrojirao Angre and Others (1988) 1 SCC 692, it was held that "when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima-facie establish the offence." It was further held that "while considering the matter, the court is to take into consideration any special feature which appear in a particular case showing whether or not it is expedient in the interest of justice to permit a prosecution to continue."
"88. The FIR or the criminal proceedings can be quashed if the allegations do not make out a prima-facie case or allegations are so improbable that no prudent person would ever reach a just conclusion that there are sufficient grounds for proceeding against the accused...."
(II) In Sau. Kamal Shivaji Pokarnekar v. The State of Maharashtra : (2019) 14 SCC 350, the Apex Court has laid emphasis on the principles laid down in two of its previous judgements namely, State of Karnataka v. M. Devendrappa : 2015 (3) SCC 424 and Indian Oil Corporation v. NEPC India Ltd. & Ors.: (2006)6 SCC 736 and held that quashing of criminal proceedings is called for only when the complaint does not disclose any offence, or the complaint is frivolous, vexatious, or oppressive and further clarified that defences available during a trial and facts/aspects whose establishment during the trial may lead to acquittal cannot form the basis of quashing a criminal complaint. The criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature, if the ingredients of the alleged offence are prima facie made out in the complaint.
(III) In recent judgments Supreme Court in Ramveer Upadhyay and another vs. State of U.P. and another, 2022 SCC OnLine SC 484 and Daxaben vs. State of Gujarat and others, 2022 SCC OnLine SC 936 held that, criminal proceedings cannot be nipped in the bud by exercise of jurisdiction under Section 482 of Cr.P.C. only because the complaint has been lodged by a political rival. Whether the allegations are true or untrue, would have to be decided in trial. In exercise of power under Section 482 of Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. Court further held that, ends of justice would be better served if valuable time of Court would spent on hearing appeals rather than entertaining petitions under Section 482 Cr.P.C. at an interlocutory stage which might ultimately result in miscarriage of of justice as held in Hamida vs. Rashid alias Rasheed, (2008) 8 SCC 781.
As discussed above, this Court has to scrutinise as to whether on the basis of complaint and the statement recorded under Sections 200 and 202 Cr.P.C., prima-facie case is made out against the applicants. At this stage, Court cannot look into the fact that an F.I.R. was already lodged by the applicants against the O.P. No.2 and others as well as Final Report was submitted on the F.I.R. lodged by the O.P. No.2.
I have perused the complaint, statement recorded under Sections 200 ad 202 Cr.P.C. wherein it is a consistent case of O.P. No.2 and the witnesses that the applicants on 18.8.2021, when a team of officials went to village of the applicants for inspection, they assaulted the complainant side and torn the documents as well as made a robbery of Rs.5000/-.
So far as the submission in regard to the injury report is concerned it will be considered at the time of trial.
In view of above discussion on law as well as on facts, no case is made out for interference at the stage of summoning as there are sufficient grounds to proceed against the applicants as well as it is not a case where either it is patently clear that the allegations are frivolous or do not disclose any offence rather as discussed above that uncontroverted allegations as made prima-facie establish the offence.
Application is rejected.
Order Date :- 5.9.2022 SB (Serial no.87 out of 271 fresh cases)