Allahabad High Court
Natthi Lal And 5 Others vs The State Of U.P. And Another on 18 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- APPLICATION U/S 482 No. - 527 of 2016 Applicant :- Natthi Lal And 5 Others Opposite Party :- The State Of U.P. And Another Counsel for Applicant :- Gauri Shanker Mishra Counsel for Opposite Party :- G.A. Hon'ble Om Prakash-VII,J.
Heard Shri Gauri Shanker Mishra, learned counsel for the applicants and Shri Nitin Kesharwani, learned AGA for the State. None present for the opposite party no. 2 despite service of notice.
The present application u/s 482 Cr.P.C. has been filed by the applicants with the prayer to quash the charge sheet dated 22.02.2015 and cognizance order dated 18.08.2015 passed by the learned Chief Judicial Magistrate, Budaun in Case No. 6052 of 2015 arising out of Case Crime No. 666 of 2014, under Sections 498-A, 323, 504, 506 IPC and Section 3/4 D.P. Act, Police Station Kotwali, District Budaun pending in the court of Chief Judicial Magistrate, Budaun.
Submission of learned counsel for the applicants is that prayer made in respect of applicant no. 6 Dilip Kumar (Husband) was refused. He is facing trial. Applicant no. 1 Natthi Lal is the Chachiya Sasur, applicant no. 2 Rajveer Kajar is the father-in-law, applicant no. 3 Smt. Saroj Devi is the mother-in-law, applicant no. 4 Dhani Ram is the Phuphiya Sasur and applicant no. 5 Vinod Chauhan is the Mediator. They have no concern with the present matter. Although in the FIR it is mentioned that all the applicants have caused marpeet with opposite party no. 2 and medical examination was done of the victim but no such injury report was filed. Thus, it is further submitted that prosecution case is not supported by medical evidence. At this juncture, learned counsel for the applicants also referred the contents of the FIR and statement of the witnesses recorded during investigation and further argued that if the demand said to have been made in the matter is taken into consideration then also applicant nos. 1 to 5 could not take benefit directly with the said demand. Applicant nos. 2 and 3 are old age person. It is also argued that with the demand said to have been made in the matter, at the most, applicant no. 6 would take benefit. Concerned Magistrate while taking cognizance on the charge sheet did not take into account the entire facts and evidence in right perspective and took cognizance on the charge sheet without applying judicial mind. It is further submitted that general allegations have been levelled against the applicant nos. 1 to 5. In support of his submissions, learned counsel for the applicants relied upon the decision of the Apex Court in Eicher Tractors Ltd. Vs. Harihar Singh, 2008 LawSuit(SC) 1643.
On the other hand, learned AGA opposed the prayer and argued that although applicant nos. 1 to 5 are the relative of opposite party no. 2 yet they were also involved in committing the present offence. Specific allegations have been levelled against them. There is no illegality, infirmity or perversity in the cognizance order taken on the charge sheet.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case law relied upon by the learned counsel for the applicants.
Before proceeding to deal with the submissions made by the learned counsel for the parties, it will be appropriate to quote paragraph 7 of the judgement of Apex Court in Eicher Tractors case (supra), which is as under:
"7. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When 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 appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows: (SCC pp. 378-79, para 102) "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In this matter, as is evident from the record, concerned Magistrate while taking cognizance on the charge sheet did not take into account the entire facts and evidence in right perspective and took cognizance on the charge sheet without applying judicial mind. It also appears that cognizance was taken on the charge sheet against the applicants only on the ground that they are family members or relative of the husband of opposite party no. 2.
Having regard to the facts and circumstances of the case, keeping in view the allegations levelled against them in the FIR, the fact that there is no nexus between the demand said to have been made in the matter with these applicants and also the law laid down by the Apex Court in Eicher Tractors case (supra) andGeeta Mehrotra Vs. State of U.P. and others, 2012 (10) ADJ 464, the Court is of the view that the proceedings against the applicants were initiated with malafide intention and continuance of such proceeding is nothing but an abuse of process of law. The concerned Magistrate did not apply judicial mind while passing the impugned order. The impugned order suffers from infirmity and illegality and requires interference by this Court.
In view of the above discussions, there is substance in the submissions made by the learned counsel for the applicants. The application is liable to be allowed and the proceedings in respect of the applicants are liable to be quashed.
Accordingly, the application u/s 482 Cr.P.C. is allowed.
The proceedings of Case No. 6052 of 2015 arising out of Case Crime No. 666 of 2014, under Sections 498-A, 323, 504, 506 IPC and Section 3/4 D.P. Act, Police Station Kotwali, District Budaun pending in the court of Chief Judicial Magistrate, Budaun are quashed against the applicants.
Order Date :- 18.10.2019 Sanjeet