Allahabad High Court
Parasu Ram Kalar And Others vs State Of U.P. And Another on 17 January, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 4539 of 2006 Applicant :- Parasu Ram Kalar And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Kishor Gupta Counsel for Opposite Party :- Govt. Advocate,V.S. Parmar Hon'ble Sudhir Agarwal,J.
1. Heard Sri Ram Kishor Gupta, learned counsel for applicants and learned A.G.A. for State.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order dated 16.11.2005 passed by Civil Judge (J.D.)/Magistrate Ist Class, Maudaha, District-Hamirpur as well as proceedings of Case No.437 of 2005, under Sections-147, 323, 504, 382, 506 IPC, Police Station-Maudaha, District-Hamirpur.
3. It is contended that O.P.no.2-Complainant has filed complaint against applicants on false and frivolous grounds. As per contents of complaint, no offence as alleged, is made out against applicants.
4. Complaint is filed as Annexure-1 to this application and it reads as under:
^^c;ku bLrxklk fuEu izdkj gSA eqLrxhr eks- mijkSl Fkkuk o dLck ekSngk ftyk gehjiqj dk fuoklh gS vkt lsA lky igys izkFkhZ ukSxkao esa jgdj dokM+ dk dke djrk Fkk rFkk mijksDR eqyfteku mlls iwoZ ifjfpr gSA ;g fd 3-8-2005 dks 2 cts fnu izkFkhZ cM+s pkSjkgk fLFkr xSjkt esa vkVks Bhd djk jgk Fkk fd mlh le; eqUuk feL=h gfj'pUnz iVsy o 'kadj iVsy tks fd e/; izns'k ds fuoklh gSa thi ls vk;s vkSj tSls gh eqlrxhr ij mudks utj iM+h rks thi [kM+h djds esjs ikl vk;s ijlqjke dykj us yydkj dj dgk ekjks eknjpksn dks cgqr cM+k ghjks curk gSA eSsaus xkyh nsus ls euk fd;k rks mijksDr eqfYteku xqLls ls vkx ccwyk gks x;s vkSj lHkh us eqLrxhl dks ?kwlksa ls ekjuk 'kq: fd;k esjs fpYykus ij cgqr lkjs yksx bdV~Bk gks x;s ftUgksaus eq>s cpk;k fo'ks"kdj eq>s eqUuk lkgw o yYyw us cpk;k o ?kVuk ns[kh eqfYteku }kjk dh x;h ekjihV eq> eqLrxhl ds 'kjhj esa reke pksVsa vkbZ eqfYtekuksa }kjk ekjihV fd;s tkus ls izkFkhZ dks tsc ls dqN lkeku o 1500@& :i;s ekjihV esa fxj x;s Fks ftls ywVus dh xjt ls eqfYtekuksa us mBk fy;k vkSj vkbUnk tku ls ekj nsus dh /kedh nsrs gq;s thi esa lokj gksdj gehjiqj dh vksj rsth ls Hkkx x;s eqLrxhl ?kVuk esa rqjUr ckn ?kVuk dh fjiksVZ fy[kkus Fkkuk ekSngk x;k rks iqfyl us eq> eqLrxhl dh fjiksVZ ugha fy[kh vkSj tkWap djus dk vk'oklu fn;k rc eqLrxhl mlh fnu rqjUr gehjiqj x;k vkSj ftykf/kdkjh gehjiqj o iqfyl v/kh{kd gehjiqj dks izkFkZuk i= fn;s ijUrq fQj Hkh dksbZ lquokbZ u gksus ds dkj.k gLrxklk nk;j djus dh vko';drk iM+hA Jheku th eqfYteku mijksDr dk Qscstk rk- fg- dks nQkr 147@148@149@382@323@504@506 vkbZ-ih-lh- gn rd izFke n`"V;k c[kwch lkfcr gS vkSj ;g ?kVuk Jheku th ddh {ks=kf/kdkj ds vUnj ?kfVr gq;h gS ftlds lquokbZ esa leLr vf/kdkj Jheku th dks izkIr gSaA vr% fuosnu gS fd U;k;fgr esa fouez fuosnu gS fd eqfYteku ijlqjke HkXxwyky eqUuk feL=h gfj'pUnz iVsy o 'kadj iVsy dks ryc Qjekdj nf.Mr djsaA*** "The statement in the complaint is as under:
The complainant Mohd. Upraus is a resident of PS and Kasba (Town)- Maudaha, District - Hamirpur. The complainant, while residing at Naugaon, dealt in scraps one year ago, and he is familiar with the afore-mentioned accused persons.
That on 03.08.2005 at 2:00 p.m., when the complainant was getting his auto repaired at a garage located at Bade crossing, the accused persons Munna Mistry, Harishchandra Patel and Shanker Patel, who are residents of Madhya Pradesh, came there travelling on a jeep. As soon as they saw me, the complainant, they stopped the jeep and came to me. Parasuram Kalaar, hurling abuses at me, said, "motherfucker you consider yourself to be a big hero". I told them not to hurl abuses, but the accused persons got infuriated, and all of them started physically assaulting me with kicks and fists. On an alarm raised by me, many persons reached there, who, Munna Sahu and Lallu in particular, saved me and witnessed the occurrence. Due to being thrashed by the accused persons, I, the complainant, sustained multiple injuries on my person, and during physical assault, some items and Rs. 1500/- fell off my pocket, which the accused persons picked up with an intent to loot. Issuing threats of dire consequences, they boarded the jeep and hurriedly headed towards Hamirpur. Immediately after the incident, the complainant went to PS Maudaha to submit a complaint. The police did not register the complaint but assured to conduct investigation. Then on the same day, the complainant went to Hamirpur and submitted applications to the District Magistrate, Hamirpur and the Superintendent of Police, Hamirpur but no action was taken; and this led to institution of the case. The offence of the aforesaid accused is prime facie made out u/s 147, 148, 149, 382, 323, 504, 506 IPC. The incident has occurred within your good-self's' jurisdiction; and your good-self has all the rights to hear the case. Hence, in the interest of justice, it is humbly requested that the accused Parsuram, Bhaggu Lal, Munna Mistri, Harish Chandra Patel and Shankar Patel be summoned and punished."
(English translation by Court)
5. A perusal of statement of complainant clearly shows that alleged offences are made out against applicants. Moreover, Magistrate has summoned the applicants after recording statements of complainant as well as witnesses under Section 200 and 202 Cr.P.C.
6. After going through the complaint and others documents, I am of the view that at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicants. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. 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 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)
7. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
8. The application lacks merit and is accordingly dismissed. Interim order, if any, stands vacated.
Order Date : 17.01.2020 Manish Himwan