Vineet Goel vs State of U.P. and Others

Om Prakash-VII, J.—The present application has been filed by the applicant with the prayer to quash the proceedings of complaint case No. 4278 of 2015 pending in the Court of Additional Chief Judicial Magistrate, Court No. VIII, Ghaziabad under Sections 323 , 504 , 506 IPC read with Section 3(1)10 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Further prayer has also been made to stay the further proceedings of the aforesaid Case.

It appears that opposite party No. 2 was the Director of M/s. R.M.S. Club and Resorts Private Ltd. The company sold the land of Khasra No. 924, situated at Village Mehrauli, District - Ghaziabad (measuring 0.3310 Hectr.) by means of registered sale-deed to M/s. Ghaziabad Holdings Private Ltd. The purchaser of the land started construction over the remaining land, which was not sold by the R.M.S. Club and Resorts Pvt. Ltd. The complainant filed a case in the Court of Sub-Divisional Officer, Ghaziabad under Section 41 of the Land Revenue Act. When the complainant resisted construction over the remaining land, an altercation ensued and Bharat Kumar, Ashwani and Vineet Goel (applicant) alongwith two unknown persons gave threat and started assaulting the complainant and also used caste remarks. Consequently, Rajveer sustained injury. The opposite party No. 2 had given application about the incident to the Senior Superintendent of Police, Ghaziabad but nothing was done in the matter. Therefore, the opposite party No. 2 filed the aforesaid complaint. Statements under Section 200 and 202 Cr.P.C. were recorded. Having been prima-facie satisfied with the contents of complaint as well as the statements recorded under Sections 200 and 202 Cr.P.C., the court concerned has passed the impugned summoning order dated 20.8.2015. Aggrieved with the said order, the applicant has approached this Court through the present application.

Heard Shri Anoop Trivedi, learned counsel for the applicant, Shri G.S. Chaturvedi, learned Senior Counsel assisted by Shri Samit Gopal, learned counsel for the opposite party No. 2 and the learned AGA appearing for the State and perused the entire record.

It was submitted by the learned counsel for the applicant that the concerned Magistrate while passing the impugned order has not taken into consideration the entire facts and circumstances of the case. The applicant is not the owner of the disputed property. Initially an application under Section 156(3) Cr.P.C. was filed by the opposite party No. 2, which was rejected. Again with the same allegations, another application showing different date of offence was moved, which resulted in passing of the summoning order. A Civil Suit was also filed by the opposite party No. 2 against the applicant but no interim injunction was granted in favour of the opposite party No. 2. A proceeding under Section 41 of the Land Revenue Act was also started but no relief has been granted in his favour. The allegations levelled in the complaint are baseless, false and bald. Other co-accused were outside the country, hence on this score also the summoning order passed by the concerned Magistrate is illegal. It was further submitted that dispute is purely of civil nature. When the opposite party No. 2 was not succeeded in civil proceedings, he tried to drag the applicant in criminal proceeding on the basis of false facts. It was further submitted that the opposite party No. 2 has also filed a forged Vakalatnama on behalf of the other applicants and another complaint had also been filed on the basis of false facts at Bareilly court. In support of his aforesaid submissions, learned counsel for the applicant has placed reliance on the following decisions:

"1. Pawan Kumar and Another Vs. State of U.P. and Another, .

Prasanna Kumar Dash Vs. State of U.P. and Another, .

S.V.L. Murthy Vs. State Rep. by CBI, Hyderabad, .

V.Y. Jose and Another Vs. State of Gujarat and Another, .

Baijnath Jha Vs. Sita Ram and Another, .

Veer Prakash Sharma Vs. Anil Kumar Agarwal and Another, .

Indian Oil Corporation Vs. NEPC India Ltd. and Others,

On the other hand, learned Senior Counsel appearing for the opposite party No. 2 submitted that there is sufficient evidence to connect the accused applicant with the present offence. It was further submitted that at this stage, the Magistrate dealing with the matter is required to see only prima-facie case. There is no requirement of law to analyze the evidence at par with trial, therefore, the Magistrate concerned has rightly passed the impugned order against the accused applicant. There is no illegality or infirmity in the impugned order warranting interference by this Court.

I have considered the submissions made by the learned counsel for the parties and gone through the entire record as well as the case laws cited by the learned counsel for the applicant.

Before proceeding to deal with the submissions advanced by the learned counsel for the parties, the Court finds it necessary to out-line in brief the factual aspect of the case.

As is clear from the record that 0.3310 Hectrs. land of plot No. 924, measuring 0.6610 Hectrs., was sold by the opposite party No. 2 to the Ghaziabad Holdings Pvt. Ltd. to which the present applicant belongs. A dispute between the parties regarding demarcation of the boundaries arose. Allegation of the complainant/opposite party No. 2 was that the applicant and other co accused were trying to occupy the land belonging to the complainant also. At one point of time in the year 2013 an application u/s. 156(3) Cr.P.C. was moved but the court concerned rejected the same. Date of offence in the said application was 9.1.2013 and the place of occurrence was shown the disputed plot. Another application was moved on 3.6.2015 showing 22.5.2015 as date of offence and on different place. A civil suit No. 317 of 2015 was also filed by the opposite party No. 2 for permanent injunction for the same plot but no interim injunction was granted. The present complaint is with regard to the offence dated 28.7.2015. Allegation against the applicant is that when the complainant alongwith one Ashok Kumar and Rajvir Jatav reached at Passport Seva Kendra Industrial area, Sahibabad, Ghaziabad, Ashok Kumar and other co-accused including the present applicant started beating with lathi danda, kicks and fists to the complainant and Rajvir Jatav and they also made caste aspersion to Rajvir Jatav. People present there saved the complainant and his colleague. Applicant and other co-accused also extended threat to kill them in near future. Rajveer was medically examined.

Now, the court feels it appropriate to refer settled legal position regarding power of the Magistrate/Court at the stage of taking cognizance and summoning the accused.

It is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate/Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused person. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court/Magistrate is not required to analyze the evidence as is done after recording the evidence in trial. It is also established that a matter, which is essentially involves a dispute of civil nature should not be allowed to be the subject matter of the criminal offence.

A proceeding pending before the Magistrate/Sessions Court can be quashed if the Court finds that its initiation or continuation amounts to abuse of process of court or quashing would otherwise serve the ends of justice. Exercise of power under Section 482 Cr.P.C. of this nature is an exception and not the rule. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of process of court, and (iii) to otherwise secure the ends of justice. Where it manifestly appears that there is legal bar against the institution or continuance, the inherent power should be exercised to quash the proceedings.

In the present matter, a perusal of record clearly indicates that specific allegations have been levelled by the complainant against the applicant for causing offence mentioned in the summoning order. The allegations levelled in the complaint was supported by the complainant and the witnesses. On the basis of the dispute pending between the parties regarding demarcation of the land, the summoning order cannot be termed to be illegal. From a perusal of the contents of the complaint, it is evident that there are specific allegations for causing injuries and hurling abuses. Hence, it cannot be said that it was a purely civil nature dispute. The incident is said to have taken place at different places. To decide this fact as to whether other accused were present at the place of occurrence or were out of the country would require evidence, which can appropriately be dealt with by the Court concerned after collecting evidence.

Keeping in view the above facts and applying the settled legal principles, as mentioned above, to the facts and circumstances of the present case and comparing it with the observations recorded by the concerned Magistrate while passing the impugned order, this Court is of the view that the Magistrate has not committed any error in summoning the present applicant. The concerned Court/Magistrate dealing with the matter at the stage of cognizance and summoning has taken into consideration all relevant factors required under law. Rejection of application under Section 156(3) Cr.P.C. will not create any bar for filing the present complaint.

In view of the aforesaid discussions, I am of the opinion that the Magistrate did not err in taking cognizance and summoning the applicant. There is no illegality, infirmity, impropriety or perversity in the impugned order dated 20.8.2015 passed by the Additional Chief Judicial Magistrate, Court No. 8, Ghaziabad. The application being devoid of merits is liable to be dismissed.

The application is accordingly dismissed.

It is made clear that the observations made in this order are only for deciding the controversy involved in the present matter at this stage.

Office is directed to send copy of this order to the concerned Court below forthwith.