Sanjeev Kumar Saini vs State Of Uttarakhand & Anr

Lok Pal Singh, J

By means of present criminal misc. application u/s 482 Cr.P.C., applicant seeks to quash the charge-sheet dated 07.07.2017 and the summoning order dated 19.07.2017 passed by Special Sessions Judge (SC & ST Act)/Sessions Judge, Dehradun as well as the entire proceedings of Special Sessions Trial No.9 of 2017 State vs. Sanjeev Kumar Saini, punishable under Section 504 of The Indian Penal Code, Section 66 of Information Technology Act and u/s 3(1)(X) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Brief facts of the case are that respondent no.2 moved an application before S.S.P. Dehradun alleging therein that she is resident of Hathibarkala Dehradun. In the year 2012, she went to her sister's house at Jhansi for studies where she got acquainted with a girl Sushma, who introduced her to the applicant. At that point of time, the complainant was minor. After some time, the complainant came back to Dehradun but they continued talking and meeting each other. The complainant stated that she and the applicant crossed their limits in friendship and the applicant also clicked some photographs of her. Thereafter, the behaviour of the applicant got changed and he started pressuring her to do filthy talks with him. During this period, he also managed to obtain her Facebook password. She alleged that the applicant is blackmailing her and is creating pressure upon her to establish physical relationship with him. She objected said act of the application and also tried to convince him but to no avail. When she stopped talking to the applicant, he made calls on mobile phones of his family members from different numbers and threatened her that if she will not meet him, he will publish the photographs in public and will destroy her life. The complainant further alleged that now she has been engaged to someone else but the applicant is still torturing her and is using caste indicating words against her. The applicant is uploading her obscene photographs on internet. On the application, F.I.R. was lodged against the applicant on 30.06.2017 and case crime no.153/2017 was registered against him under Sections 504 of The Indian Penal Code (for short, IPC), Section 66 of Information Technology Act (for short, I.T. Act) and u/s 3(1)(X) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, SC/ST Act). Matter was investigated and on completion of investigation, charge sheet was filed against the applicant under the aforesaid sections. On submission of charge-sheet, Special Judge (SC, ST Act) has taken cognizance in the matter and summoned the applicant to face trial.

Learned counsel for the applicant would submit that the summoning order passed by the trial court in respect of offence punishable under Section 66 of I.T. Act and 3(1)(X) of SC/ST Act is illegal as from the averments of the F.I.R. no case is made out against the applicant under the said sections. Learned counsel would contend that nowhere it is mentioned in the FIR that the applicant was not a member of Schedule Caste or Scheduled Tribe and he intentionally insulted or intimated with intent to humiliate the complainant in a public place. To buttress his submissions, learned counsel would place reliance on a judgment of Hon'ble Apex Court in the case of Gorige Pentaiah vs. State of Andhra Pradesh (2008) 12 SCC 531 and would refer to following paragraphs:-

"6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27.5.2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appelalnt-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.

The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

A three-Judge Bench of this Court in Inder Mohan Goswami v. State of Uttaranchal has examined the scope and ambit of Section 482 of the Criminal Procedure Code. The Court in the sad case observed that inherent powers under Section 482 should be exercised 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 fully justified in preventing injustice by invoking inherent powers of the court."

Learned counsel would further contend that that the FIR has been lodged after a delay of 12 days and no explanation has been given for the same. It is contended that the complaint has been filed with an oblique motive.

I have heard learned counsel for the parties and have gone through the entire material available on file.

Perusal of the FIR would reveal that the complainant has made specific allegations against the applicant that he threatened and blackmailed the applicant and uploaded her obscene images on the internet. Impugned summoning order would also reveal that the learned Judge has recorded its satisfaction before taking cognizance in the matter. Insofar as the case-law cited by counsel for the applicant is concerned, the ratio of the judgment is not applicable to the facts and circumstances of the present case.

Hon'ble Apex Court in the case of Sonu Gupta vs. Deepak Gupta and others (2015) 3 SCC 424 has held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs are quoted hereunder:-

"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future.

Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."

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 power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.

The Hon'ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 has held as under:-

"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."

In the light of aforesaid, this Court is of the view that prima facie a case is made out against the applicant under the aforesaid Sections. The averments made in the complaint and the evidence collected by the Investigating Officer has not been denied by the applicant. There is no whisper in the present application that the allegations made against the applicant are false and baseless and that he has not committed the offence as alleged against him. In such view of the matter, I am of the considered view that the learned Judge has rightly passed the summoning order against the applicant to face the trial for the offence punishable u/s 504 of IPC, Section 66 of I.T. Act and Section 3(1)(X) of The SC/ST Act.

At this state of dictation, learned counsel for the applicant would submit that the applicant is a practicing doctor and a respectable person of the Society. He would submit that as the Court is not inclined to quash the proceedings, liberty may be given to the applicant to surrender before the court below and the court below be directed to decide the bail application of the applicant expeditiously.

Hon'ble Apex Court in the case of State of Telangana vs. Habib Abdullah Jeelani (2017) 2 SCC 779 and others reported has held that the practice of filing petition under section 482 initially for quashing of FIR and investigation and then seeking relief of enlargement on bail on surrendering of petitioner before the Magistrate concerned should be stopped and Court should desist from issuing order on that basis as same would neither fall within the ambit of section 482 Cr.P.C. nor section 438 Cr.P.C. nor Article 226 of Constitution of India.

In view of the aforesaid judgment, prayer made by the counsel for the petitioner is rejected.

For the reasons recorded above, present criminal misc. application u/s 482 Cr.P.C. stands dismissed.