Shameem @ Shameem Ahmad and 4 Others v. State of U.P. and Another

Court No. - 90 Case :- APPLICATION U/S 482 No. - 40174 of 2023 Applicant :- Shameem @ Shameem Ahmad And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vipul Kumar Singh Counsel for Opposite Party :- G.A.,Arvind Kumar Yadav Hon'ble Dinesh Pathak,J.

¶1Heard learned counsel for the applicants, learned counsel for the respondent no. 2 and learned A.G.A. for the State respondent.

¶2The applicants have invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C assailing the summoning order dated 10.08.2023, passed by Additional Chief Judicial Magistrate-1st Jaunpur in Complaint Case 33/2019 (Akeel Ahmad Vs. Haleem and others) under Sections 323, 504, 379, 452 I.P.C. Police Station - Khetasarai, District – Jaunpur.

¶3Respondent no.2 filed a complaint dated 15.10.2018, accusing the present applicants of house trespass, thrashing, intentional insult and theft with an averment that on the date of occurrence of offence i.e. 07.10.2018, at about 8 P.M., when the complainant reached infront of his house after shutting his grocery shop, he was beaten up by the present applicants. However, he managed to enter in his house. Thereafter, the accused barged into the house and thrashed complainant. They dragged him out of the house and snatched Rs.16,800/- and a mobile phone as well. Having considered the contents of the complaint and the statement of witnesses under Sections 200 and 202 Cr.P.C., learned Magistrate has issued process against the present applicants under Sections 323, 504, 379 and 452 I.P.C. vide order dated 10.08.2023 which is under challenge before this Court.

¶4It is submitted by learned counsel for the applicants that a false and malicious prosecution has been instituted against the present applicants, who are real brothers, just to exert undue pressure upon them so that they may come to the compromise on the terms and conditions of the respondent no.2 in civil litigation going on between the parties. It is further submitted that a false story has been portrayed in the complaint whereas no such incident took place on the date of alleged occurrence of offence. The statement of witnesses are not credible to issue process for the occurrence of offence as mentioned in the summoning order.

¶5Per contra, learned counsel for the respondent no.2 has vehemently opposed the submissions as raised by learned counsel for the applicants and supported the issuance of summoning order dated 10.08.2023. It is submitted that the eviction suit filed on behalf of the respondent no.2 against the present applicants has been decreed, however, present applicants have filed the recall/restoration application against the decretal order which is pending consideration. They are through out creating pressure upon the complainant so that he may withdraw himself from contesting the restoration application. It is further contended that all the witnesses adduced on behalf of the complainant have supported his case, therefore, prima facie the occurrence of crime can not be denied. The innocence of the present applicants can be examined by the trial court. At this stage, no ground is made out to interfere in the summoning order in exercise of inherent jurisdiction. Therefore, the present application being misconceived and devoid of merits may be dismissed.

¶6Having considered the rival submissions advanced by learned counsel for the parties and perusal of records, it is manifested that the applicants have unequivocally narrated the incident which occurred on the date of occurrence i.e. 07.10.2018 wherein the accused have barged into the house of the complainant and snatched cash amounting to Rs.16,800/- along with the mobile phone. They thrashed the complainant as well inflicting internal injuries. The accusation made by the complainant in the complaint has been corroborated by his statement under Section 200 Cr.P.C. and the statements of witnesses, namely, Ikrar (CW-1) and Saroj Ahmed (CW-2), under Section 202 Cr.P.C. Based on material on record, while passing the summoning order impugned, learned Magistrate has recorded his satisfaction with respect to the occurrence of offence for which process has been issued against the present applicants. At the stage of issuance of process only, prima facie, case on the basis of the material on record, is required to be examined by learned Magistrate. He is not expected to go into the deep scrutiny intending to authenticate the veracity of the occurrence of crime on the date of incident as mentioned in the complaint. A preliminary inquiry under Sections 200 and 202 Cr.P.C. is sufficient to make out a prima facie case for the purpose of issuing the process against the accused. Learned Magistrate is not expected to go into the details of the cases or into a pros and cons of the matter or into a weighting and balancing of evidence and probabilities which is a matter of trial after appraising the evidence adduced by the parties.

¶7In the given circumstances of the present case wherein eviction suit filed by the complainant is decreed against the present applicants and the recall application is pending against the decree, prima facie, strained relationship between the parties can not be denied. In the back drop of such circumstances and the statement on witnesses under Section 200 and 202 Cr.,P.C. the complicity of the present applicants in the commission of crime can not be ruled out. The innocence of the present applicants as is being tried to put forward by learned counsel for the applicants is a matter of scrutiny which can be adjudicated upon more appropriately by the trial court after appraising the evidence on record. At this juncture, in the exercise of inherent jurisdiction under Section 482 Cr.P.C., this Court is not expected to conduct a mini trial to infer the innocence of the present applicants who are already under litigation with the complainant by moving the recall application against the eviction decree passed in a suit filed on behalf of the complainant.

¶8Record reveals that learned counsel for the applicants has raised disputed question of fact qua involvement of present applicants in the incident in question. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

¶9It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. :

(1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. :

(2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

¶10In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :- "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

¶11In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated

31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

¶12In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows :- "23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record."

¶13The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder :- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(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 bur engrafted in any of the provisions of the Code on the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide 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 10 private and personal grudge."

¶14It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

¶15Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted.

¶16Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

¶17Having considered the rival submissions advance by learned counsel for the applicants and learned A.G.A. and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground is made out to consider the merits of the instant case. As such, prayer of quashing, as made in instant application, is hereby refused.

¶18Accordingly, the present application under Section 482 Cr.P.C. is hereby dismissed. Order Date :- 24.11.2023/vkg High Court of Judicature at Allahabad