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Jata Shankar Trivedi And Another vs State Of U.P. And Another on 31 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?AFR

Court No. – 74

Case :- APPLICATION U/S 482 No. – 47456 of 2019

Applicant :- Jata Shankar Trivedi And Another

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Subhash Chandra Tiwari

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

This Application, under Section 482 of Code of Criminal Procedure, 1973 (Hereinafter, in short, referred to as ‘Cr.P.C.’), has been filed by the Applicants, Jata Shankar Trivedi and Divya Trivedi, with a prayer for setting aside impugned chargesheet, dated 6.12.2018 and cognizance taking order, dated 2.2.2019, with entire proceeding, in Criminal Case No. 2138 of 2019, State vs. Jata Shankar Trivedi and othrs, arising out of Case Crime No.49 of 2018, under Sections-498A and 376D of Indian Penal Code, Police Station-Collectorganj, District-Kanpur Nagar, pending in the court of Additional Chief Metropolitant Magistrate, IX, Kanpur Nagar.

Learned counsel for applicants argued that Opposite party no. 2 fell in love with the son of Applicant no.1, resulting in love marriage with him. Both of them resided separately at Shuklaganj, Unnao. Applicants are having no concern with them. Subsequently, Opposite party no.2 fell in extramarital relationship with Rinkesh Shukla, who usurped entire belonging of son of Applicant No.1 and ultimately ousted him from his house at Shuklaganj, Unnao. Being father, Applicant no.1, and feeling pity upon his own son, permitted him to reside at his home. Then, threat was being extended by Rinkesh Shukla to applicants. Ultimately, this false case was got manipulated and fabricated against Applicant no.1 and other accused persons, with concocted story, whereas, a missing report of his own son was got reported, prior to this occurrence, by Applicant no.1 and this was mentioned in the first information report, lodged at Police Station, concerned, itself, that this concocted story of offence of rape seems to be suspicious because Applicant no.1 has moved an application, under Section 156 (3) of Cr.P.C., before the Magistrate, concerned, with regard to missing of his son, wherein, apprehension on Opposite party no.2 and Rinkesh Shukla was expressed upon which a first information report was lodged and as a result whereof this false implication of Applicant no.1 and other accused is there, wherein impugned chargesheet has been filed upon which cognizance has been taken by the court, concerned, whereas, no such occurrence ever occurred and applicants are being victimized by Opposite party no.2. This was a proceeding, under abuse of process of law. Hence, for avoiding abuse of process of law in ensuring ends of justice, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.

Learned AGA, representing State of U.P., has vehemently opposed this Application.

From very perusal of the first information report, it is apparent that the previous report of missing of son of Applicant no.1 was lodged and this occurrence of rape was held to be a suspicious one, whereupon, Inspector, Police Station-Shuklaganj, District Kanpur Nagar, was directed for making investigation, under above facts and circumstances, but, it is there that investigation resulted in submission of chargesheet, wherein, cognizance has been taken by the learned Magistrate. The chargesheet has been filed on the basis of evidence, collected and statements recorded, under Section 161 of Cr.P.C. There are statements, under Sections 164 of Cr.P.C., too. Hence, this Court, in exercise of its inherent jurisdiction, conferred upon it by Section 482 of Code of Criminal Procedure, is not expected to embark upon factual matrix because it may prejudice fair trial. However, it cannot be said that there is nothing on record for making an indulgence in exercise of inherent jurisdiction. Hence, prayed relief, for quashing of chargesheet is not liable to be granted, hence, declined. However, the arguments as well as facts and circumstances, raised before this Court, can very well be raised before the Trial court, concerned, at the stage of proceeding, under Section 227 of Cr.P.C., and before the Magistrate, prior to making committal to the court of Sessions, that too, by way of adopting proper procedure, in accordance with law and if applicants raise such a plea the courts, concerned, will consider and decide the same, in accordance with the provisions of law and precedents on the issue.

Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844, has propounded that “While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court”. In another subsequent judgment, in the case of Hamida v. Rashid, (2008) 1 SCC 474, Hon’ble Apex Court propounded that “Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice”. In again yet another judgment, in the case of Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded “Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.” While interpreting this jurisdiction of High Court Apex Court, in the case of Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296, has propounded “High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings”.

Regarding prevention of abuse of process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494, has propounded “To prevent abuse of the process of the Court, High Court, in exercise of its inherent powers under section 482, could quash the proceedings, but, there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive” as well as in the case of State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded “In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not”.

Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.

In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.

Applicants prayed for a protection from being victimized in above case.

In view of the prayer made by the applicants, they are being afforded an opportunity to appear and surrender before the court below within 30 days from today and apply for bail. Their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

For a period of 30 days from today, no coercive action shall be taken against the applicants.

In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

Order Date :- 31.1.2020

bgs/

 

 

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