Ashok Bhola and Another vs State of MP and Another

Brij Kishore Dube, J.—This petition u/s 482 of the Code of Criminal Procedure, 1973 (for short the ''Code'') is preferred by the petitioners herein/accused, for quashing the criminal proceedings instituted against them by the respondent No. 2 in the form of private complaint bearing Criminal Case No. 45/2011 (Vinay Chand Ozha Vs. Ashok Kumar Bhola & others) and pending before the J.M.F.C., Shivpuri. The background facts of the case, in brief, are that the respondent No. 2 herein filed a complaint under Sections 323, 294, 506-B, 341 read with 34 of IPC against the petitioners and Smt. Nirmal Bhola on 30/05/2011. The statement of the complainant was recorded u/s 200 of the Code. Thereafter, the case was fixed for further evidence u/s 202 of the Code. The complainant examined Kedarnath Sharma and Bashir Khan in support of his complaint. The learned Magistrate also called for a report from the concerned Police Station. After considering the material available on record, the Trial Court took cognizance against the accused persons under Sections 294, 323 and 341 of IPC on 10/01/2012 and directed to issue the summons for securing their presence before it. Being aggrieved by the aforesaid order, the accused persons preferred a Criminal Revision. The Revisional Court vide the impugned order dated 20/12/2012 partly allowed the revision and discharged Smt. Nirmal Bhola, however, affirmed the impugned order dated 10/01/2012 against the petitioners herein/accused, hence they preferred this petition.

Learned counsel for the petitioners submits that on the basis of the report lodged by the petitioner No. 1 herein/Ashok Bhola, a case under Sections 323, 294, 506-B and 427 read with 34 of IPC at Crime No. 162/2011 was registered by the Police Station Kotwali, Shivpuri on 03/04/2011 against the respondent No. 2 and the other accused persons. In the counter-blast of the same on false and frivolous grounds, the present criminal proceedings have been initiated by the respondent No. 2. It is further submitted that both the parties have no cordial relations as civil suits are pending between them. The police during the investigation found that the complainant (the respondent No. 1 herein) did not lodge any report on 07/04/2011 and on account of a dispute in respect of a plot, the respondent No. 1 herein filed the false and frivolous complaint before the Court below. It is further submitted that the complainant has not got himself medically examined. On these grounds learned counsel prays for quashing the criminal proceedings. In support of his contention, he has placed reliance upon the decision of the Hon''ble Apex Court in the case of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, wherein it has been observed as under:

Inherent power u/s 482 Cr. P.C., can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent jurisdiction of the High Courts u/s 482 Cr. P.C., though wide has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused.

In response, learned counsel for the respondent No. 2 supports the impugned order dated 20/12/2012 and submitted that on the basis of the evidence available on record, the Court below has rightly taken cognizance against the petitioners. In support of his contention, he has placed reliance upon the decision of this Court in the case of L.M.L. Limited and Others Vs. Kailash Narain Rai, wherein after hearing the arguments and perusal of the statement, Trial Court registered the complainant against the petitioners u/s 420 of IPC. In that situation, this Court held that the questions of facts are involved, therefore, the parties may contest the criminal proceedings in the Trial Court, therefore, interference by way of inherent jurisdiction is not required.

I have considered the rival submissions made by the learned counsel for the parties.

From a perusal of the record, it is revealed that the respondent No. 2 submitted the complaint before the Trial Court on 30/05/2011 and got his statement recorded in support of the complaint on the same date. The statements of the witnesses, namely; Kedarnath Sharma and Bashir Khan were recorded u/s 202 of the Code. The learned Trial Court after considering the evidence on record, taken cognizance against the petitioners for the offence punishable under Sections 294, 323 and 341 of IPC on 10/01/2012. The Trial Court has assigned cogent reasons for taking cognizance against the petitioners/accused.

In U.P. Pollution Control Board Vs. Dr. Bhupendra Kumar Modi and Another, the Hon''ble Apex Court held as under:

It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceedings against the accused.

In the case of State of Orissa and Another Vs. Saroj Kumar Sahoo, the Hon''ble Apex Court held that while exercising the powers u/s 482 of Cr. P.C., the High Court does not function as a Court of Appeal or Revision. It is further held that when exercising the jurisdiction u/s 482 Cr. P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not and whether there is reasonable apprehension of its accusation would not be sustained. As regards the mala fides of the complainant, it has been held that the allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing of the proceedings.

In the case of Kurukshetra University and Another Vs. State of Haryana and Another, , the Hon''ble Apex Court observed as under:

Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. Thus, the High Court in exercise of inherent powers u/s 482 Criminal Procedure Code cannot quash a first information report more so when the police had not even commenced the investigation and no proceeding at all is pending in any Court in pursuance of the said FIR.

Resultantly, in the light of the law laid down by the Hon''ble Apex Court referred to hereinabove and the facts of the case mentioned hereinabove but, without expressing any opinion on merits of the case, this Court does not find any case for interference while exercising the jurisdiction u/s 482 of the Code, therefore, the petition being devoid of merit and substance deserves to be and is hereby dismissed. Certified copy as per rules.