Rajesh Kumar vs State Of Uttarakhand & Another

Alok Singh, J

1) The applicant, by means of present Application under Section 482 Cr.P.C., seeks to quash the summoning order dated 10.03.2010 passed by the Chief Judicial Magistrate, Chamoli in Criminal Case No.161 of 2010, under Sections 9, 49-B, 51 of the Wild Life (Protection) Act, 1972 (hereinafter referred to as the Act) as well as the order dated 25.04.2013 passed by the Sessions Judge, District Chamoli in Criminal Revision No.43 of 2010.

2) Perusal of the record reveals that an FIR was lodged against 4 persons for the offences punishable under the Wild Life (Protection) Act, but the present applicant was not named in the said FIR; thereafter, a complaint was filed by the forest department against 5 persons, including applicant, under the provisions of the Wild Life (Protection) Act; the Magistrate summoned the applicant, vide order dated 10.03.2010; and, being aggrieved against the same, applicant preferred a revision before the revisional court, who, in turn, dismissed the same and affirmed the order of the Magistrate, vide order dated 25.04.2013.

3) Learned Senior Counsel for the applicant vehemently argued that the only allegation in para 4 of the complaint is that the applicant intended to purchase leopard's skin from co-accused Satish Chandra; neither the leopard's skin was purchased by the applicant nor any skin was recovered from his possession; the sole allegation against the applicant is that co-accused Satish Chandra had made a confessional statement to the effect that sometime back, applicant asked Satish Chandra that he wanted to purchase leopard's skin; such confessional statement is of no value; and in the absence of any charge of illegal possession of any animal under Section 39, accused could not be held guilty under Section 9 of the Act.

4) On a bare reading of the complaint, the factual foundation of the offences under Sections 9, 49-B, 51 of the Act against the accused-applicant is not laid. Narrow inspection hole through which this Court is expected to examine the matter under Section 482 Cr.P.C. is whether a prima facie case is made out against the accused-applicant on the basis of the alleged complaint and other documents or not?

5) It is a well settled law that the factual aspects of the case need not be gone through by this Court in exercise of its inherent jurisdiction. The Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. It was further held by Hon'ble Apex Court in Amit Kapoor's case (supra) that where the court finds that the continuation of criminal proceedings would amount to the abuse of the process of the court, inherent jurisdiction of the court under Section 482 of Cr.P.C. may be resorted to. Such power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone the courts exists.

6) The Hon'ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 held as follows:

"28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution / complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution / complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."

7) It is being reiterated at the cost of repetition that when factual foundation of any offence is not laid against the accused-applicant, then this Court must intervene in exercise of its inherent jurisdiction. It is a well settled law that the inherent powers of this Court under Section 482 Cr.P.C. should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section. In the instant case, so far as the applicant is concerned, he is able to pass those tests and, therefore, learned court below committed a mistake in summoning him (applicant herein) for the offences punishable under Sections 9, 49-B, 51 of the Act. Therefore, this Court finds substance in the arguments advanced by learned counsel for the applicant.

8) For the foregoing reasons, the impugned orders, which do not make out the alleged offences against the applicant, cannot be allowed to stand. Consequently, proceedings of Criminal Case Criminal Case No.161 of 2010, under Sections 9, 49-B, 51 of the Act are hereby quashed so far as it relates to the applicant. Accordingly, the impugned orders are also quashed.