Vijay and Others vs State of U.P. and Others

Om Prakash-VII, J.—This application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the entire proceeding of the Complaint Case No. 595 of 2014 (Radhika Devi v. Vijay & others) under Sections 323 , 504 , 506 IPC, Police Station Meh Nagar, District - Azamgarh pending in the Court of Judicial Magistrate Court No. 29, Azamgarh as well as the operation and execution of the impugned summoning order dated 30.6.2015 passed in the said complaint case.

It appears that the opposite party No. 2 filed a complaint on 12.3.2014 against the applicants in the court of Additional Chief Judicial Magistrate, Azamgarh which was registered as complaint case No. 266 of 2014 making averments therein about the incident, which was taken place on 4.12.2013. After registering the case, statements under Sections 200 and 202 Cr.P.C. were recorded. Thereafter, the Magistrate being satisfied with the contents of the complaint as well as statements recorded under Section 200 Cr.P.C. and 202 Cr.P.C. vide order dated 30.6.2015 summoned the applicants to face the trial. Aggrieved with the said order, the present application has been filed.

Heard Shri Sita Ram Yadav, learned counsel for the applicants and the learned AGA appearing for the State and perused the entire record.

It is submitted by the learned counsel for the applicants that the complaint was filed as a counter blast with malafide intention after one month of filing the charge-sheet in the First Information Report lodged by the applicants. Necessary ingredients to constitute the offence under Sections 323 , 504 and 506 IPC were also not substantiated by the complainant in the complaint as well as under the statement under Sections 200 and 202 Cr.P.C.. The concerned Magistrate did not apply judicial mind and arbitrarily passed the impugned summoning order. In support of his submissions, learned counsel for the applicants has placed reliance on the decision of the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, . It is further submitted that the impugned order also suffers from illegality and infirmity.

On the other hand, learned AGA appearing for the State submitted that the complainant had moved an application to the concerned police and also to the concerned Senior Superintendent of Police and when no action in the matter was taken by the police authorities, the complainant filed the instant complaint. Although the offence was committed on 4.12.2013 and the complaint was filed on 12.3.2014 yet the delay in filing the complaint has been properly explained by the complainant in the complaint itself. All necessary ingredients to constitute the offences under the aforesaid Sections have come in the statements under Sections 200 and 202 Cr.P.C.. The impugned order does not suffer from any illegality or infirmity warranting interference by this Court.

I have considered the submissions made by the learned counsel for the parties and gone through the entire record including the impugned order as well as the case law cited by the learned counsel for the applicants.

Before analyzing the submissions made by the learned counsel for the parties, it will be appropriate to quote the paragraph Nos. 102 and 103 of the decision of the Hon''ble Supreme Court in the case of State of Haryana and others v. Bhajan Lal and others relied upon by the learned counsel for the applicants, which are as under.

"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 extra-ordinary 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.

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.

Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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.

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.

Where, the allegations in the F.I.R. 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.

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.

Where there is an express legal bar engrafted in any of the provisions of the Code or 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.

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 to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

A perusal of the aforesaid paragraphs, it is evident that the Apex Court in the aforesaid decision has laid down certain guidelines to invoke extraordinary power under Article 226 of the Constitution of India and the inherent power under Section 482 Cr.P.C. Learned counsel for the applicants has emphasized mainly the guideline No. 7 of the paragraph No. 7 of the said judgment wherein it has been held that where a criminal proceeding is manifestly attended with malafide 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 to private and personal grudge, the Court can exercise the jurisdiction invoking its inherent power under Section 482 Cr.P.C..

In the present matter certainly the complaint was filed on 12.3.2014 for the offence dated 4.12.2013 but the facts averred in the complaint and the statement recorded under Sections 200 and 202 Cr.P.C. clearly indicates that a prima-facie case is made-out against the applicants for commission of offence under Section 323 , 504 and 506 IPC. It may be noted here that at the stage of passing of summoning order, the court dealing with the matter has to see only prima-facie case in light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. The State of Punjab, , State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426 , State of Bihar and Another Vs. P.P. Sharma, IAS and Another, and lastly Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, . There is no requirement of law to analyze the evidence at par with trial.

A three Judge Bench of the Apex Court in Sonu Gupta Vs. Deepak Gupta and Others has also dealt with the issue more appropriately and in paragraphs 8 and 9 of the said judgment held as under:

"8. 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.

It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial."

As far as the submission regarding malafide or malicious intention to initiate the criminal proceeding against the applicants is concerned, initially a Non-Cognizable Report was lodged by the applicants for the offence committed on 4.12.2013 against the husband of the complainant and other family members. As to whether the version taken by the complainant is true or the version taken in the NCR is true can only be ascertained after scrutinizing the evidence, which can be done at appropriate stage by the Court below. Thus, it cannot be said at this stage that the complaint was filed by the complainant with malafide intention or for an ulterior motive for wreaking vengeance on the accused.

In view of the above discussions, I am of the view that the impugned order does not suffer from any illegality or infirmity. The application being devoid of merits is liable to be dismissed.

It is accordingly dismissed.