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Deepak Khanna vs State Of Uttarakhand And Another on 27 April, 2017

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL

Criminal Misc. Application No. 571 of 2017
(Under Section 482 Cr.P.C.)

Deepak Khanna …………. Applicant

versus

State of Uttarakhand another ………. Respondents

Mr. Bilal Ahmed, Advocate, present for the applicant.
Mr. S.S.Adhikari, Brief Holder, present for the State /respondent no.1.

U.C. Dhyani, J. (Oral)

1. By means of present Application under Section 482
Cr.P.C., the applicant seeks to quash the summoning order
dated 19.02.2016 as well as the entire proceedings of
Criminal Complaint Case No. 97 of 2016, Sonal vs.
Deepak Sharma, under Sections 498-A, 323, 506 of IPC
and ¾ of Dowry Prohibition Act, pending in the Court of
2nd Judicial Magistrate, Roorkee, District Haridwar.

2. The respondent no. 2 filed a criminal complaint case
against the accused-applicant (husband of respondent
no.2) for the offences punishable under Sections under
Sections 498-A, 323, 506 of IPC and ¾ of Dowry
Prohibition Act. The trial court recorded the statement of
the complainant under Section 200 Cr.P.C. The statements
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of Rekha and Praveen Saini were recorded under Section
202 Cr.P.C. The documents were filed by the complainant.
After considering the material on record, the learned 2nd
Judicial Magistrate, Roorkee summoned the accused-
applicant to face the trial for the offences punishable under
Sections 498-A, 323, 506 of IPC and ¾ of Dowry
Prohibition Act. Against the summoning order, applicant
filed a Revision, which too was dismissed. Hence the
present petition under Section 482 Cr.P.C.

3. It is the submission of learned counsel for the applicant
that the applicant is living in Bulandshahar and parents of
the victim were living in Jodhpur. After 9 months, brother
of the victim started living in Roorkee. Thereafter the
victim filed a complaint against the applicant.

4. Offence punishable under Sections 498-A IPC is a
continuing offence. The victim will lodge an FIR only at
the place where she has taken shelter and, therefore, it
cannot be said as to why she filed an FIR in PS Roorkee,
which is in Uttarakhand State. The other pleas taken by
the applicant are factual in nature. Learned counsel for the
applicant also submitted that the proceedings are nothing
but a counterblast to Section 13 of the Hindu Marriage Act
proceedings initiated by the respondent.

5. Hon’ble Supreme Court in Amit Kapoor vs. Ramesh
Chander and another, (2013) 1 Supreme Court Cases
(Cri) 986, has laid down certain principles in respect of
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exercise of jurisdiction under Section 482 Cr.P.C. Some of
those principles, which are relevant in the context of
present case, can be summarized as below:

i. Though there are no limits of the powers of the Court under
Section 482 of the Code but the more the power, the more due
care and caution is to be exercised in invoking these powers.
The power of quashing criminal proceedings, particularly, the
charge framed in terms of Section 228 of the Code should be
exercised very sparingly and with circumspection and that too
in the rarest of rare cases.

ii. 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.

iii. 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.

iv. 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.

v. 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 loathe to
interfere, at the threshold, to throttle the prosecution in
exercise of its inherent powers.

vi. Where there is an express legal bar enacted in any of the
provisions of the Code or any specific law in force to the very
initiation or institution and continuance of such criminal
proceedings, such a bar is intended to provide specific
protection to an accused.

vii. The Court has a duty to balance the freedom of a person and
the right of the complainant or prosecution to investigate and
prosecute the offender.

viii. The process of the Court cannot be permitted to be used for
an oblique or ultimate/ulterior purpose.

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ix. Where allegations give rise to a civil claim and also amount to
an offence, merely because a civil claim is maintainable, does
not mean that a criminal complaint cannot be maintained. It
may be purely a civil wrong or purely a criminal offence or a
civil wrong as also a criminal offence constituting both on
the same set of facts. But if the records disclose commission
of a criminal offence and the ingredients of the offence are
satisfied, then such criminal proceedings cannot be quashed
merely because a civil wrong has also been committed. The
power cannot be invoked to stifle or scuttle a legitimate
prosecution. The factual foundation and ingredients of an
offence being satisfied, the court will not either dismiss a
complaint or quash such proceedings in exercise of its
original jurisdiction.

x. Where the allegations made and as they appeared from the
record and documents annexed therewith to predominantly
give rise and constitute a ‘civil wrong’ with no ‘element of
criminality’ and does not satisfy the basic ingredients of a
criminal offence, the Court may be justified in quashing the
charge. Even in such cases, the Court would not embark upon
the critical analysis of the evidence.

xi. 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.

xii. It is neither necessary nor is the court called upon to hold a
full- fledged enquiry or to appreciate evidence collected by
the investigating agencies to find out whether it is a case of
acquittal or conviction.

xiii. In exercise of its jurisdiction under Section 228 and/or under
Section 482, the Court cannot take into consideration external
materials given by an accused for reaching the conclusion that
no offence was disclosed or that there was possibility of his
acquittal. The Court has to consider the record and documents
annexed with by the prosecution.

xiv. Quashing of a charge is an exception to the rule of continuous
prosecution. Where the offence is even broadly satisfied, the
Court should be more inclined to permit continuation of
prosecution rather than its quashing at that initial stage. The
Court is not expected to marshal the records with a view to
decide admissibility and reliability of the documents or
records but is an opinion formed prima facie.

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xv. Where the charge-sheet, report under Section 173(2) of the
Code, suffers from fundamental legal defects, the Court may
be well within its jurisdiction to frame a charge.

xvi. Coupled with any or all of the above, where the Court finds
that it would amount to abuse of process of the Code or that
interest of justice favours otherwise, it may quash the charge.
The power is to be exercised ex debito justitiae, i.e. to do real
and substantial justice for administration of which alone, the
courts exist.

xvii. These are the principles which individually and preferably
cumulatively (one or more) be taken into consideration.

5. There appears to be no illegality in the cognizance and
summoning order (order under challenge). No interference
is called for in the same at this stage, as would also be
evident from the law laid down by Hon’ble Supreme
Court in Rajiv Thapar and others vs. Madan Lal Kapoor
(2013) 3 SCC 330. Para 28 of the said ruling is reproduced
herein below for convenience:

“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 defence 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,
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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.”

6. It is settled law that the factual controversy need not be
gone into by the Court while exercising jurisdiction under
Section 482 Cr.P.C. and hence this Court need not deal
with factual aspects of the case in detail. Whether such
offences were, in fact, committed by the applicant, or not,
has to be examined by the Trial Court. Apparently, there
is nothing on record to say that the applicant, prima facie,
did not commit such offence. Foundation of criminal
offence is, therefore, laid against the accused-applicant on
a bare reading of the allegations levelled against him in
criminal complaint case supported by the statements under
Sections 200 and 202 Cr.P.C.

7. Criminal proceeding pending against him therefore,
should not be quashed. The jurisdiction under Section 482
Cr.P.C. should not be exercised to stifle or scuttle the
legitimate prosecution.

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8. It is also the settled law that inherent jurisdiction under
Section 482 of Cr. P.C. has to be exercised sparingly,
carefully and with caution and only when such exercise is
justified by the tests specifically laid in the Section itself.
The applicant, in the instant case, is unable to pass those
tests.

9. This Court, therefore, is of the view that no interference is
called for in the proceedings of the Court below in
exercise of its inherent jurisdiction. Application under
Section 482 Cr.P.C. filed on behalf of the applicant is
therefore, dismissed.

10. As prayed, liberty is granted to the applicant to take all the
factual pleas before the Court below for securing his
discharge/acquittal at an appropriate stage.

(U.C. Dhyani, J.)
27.04.2017
Kaushal
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