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Sarvesh Kumar And Another vs State Of U.P. And Another on 22 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 77

Case :- APPLICATION U/S 482 No. – 41749 of 2019

Applicant :- Sarvesh Kumar And Another

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

Counsel for Applicant :- Yogendra Misra

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

1. Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.

2. This application under Section 482 Cr.P.C. has been filed by applicants Sarvesh Kumar and Satish against State of U.P. and Shakuntala Devi with prayer to quash the summoning order dated 5.2.2019 passed by A.C.J.M., Firozabad, as well as entire proceedings of Complaint Case No. 136 of 2018, Shakuntala Devi Vs. Sarvesh Kumar and another, under Section 354 I.P.C., P.S. Narkhi, district Firozabad, pending in court of A.C.J.M., Firozabad.

3. Learned counsel for the applicants argued that there was no evidence for above summoning u/s 200 and 202 SectionCr.P.C., but learned Magistrate has summoned applicants for offence punishable u/s 354 SectionI.P.C.. There was material contradictions in the statements of complainant as well as his witnesses, hence it is a misuse of process of law. Accordingly, this application may be allowed and entire proceeding aforesaid complaint case be quashed.

4. Learned A.G.A. vehemently opposed the application.

5. From the very perusal of the complaint, it is apparent that occurrence was said by complainant and the same was reiterated by her in her statement recorded u/s 200 SectionCr.P.C. wherein she stated that on 6.10.2017 when she was in a field for easing, accused persons reached there and they tried to commit rape with her. In between rescue call was raised on which Dharmendra and Chhotelal came there. This has been stated by prosecution witnesses Dharmendra and Chhotelal in their statements recorded u/s 202 SectionCr.P.C. and the Magistrate has summoned the accused on the basis of above statements. Accordingly, this application has no merit. This court in exercise of its inherent jurisdiction u/s 482 SectionCr.P.C. is not expected to meticulously analyse the facts and evidence as it is matter of trial to be seen during trial.

6. Saving of inherent power of High Court, as given under Section 482 Cr.P.C, provides that nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Meaning thereby this inherent power is with High Court (I) to make such order as may be necessary to give effect to any other order under this Code (II) to prevent abuse of the process of any Court (III) or otherwise to secure the ends of justice. But Apex Court in SectionState 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 Sectionsection 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 SectionHamida 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 another subsequent SectionMonica 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 SectionPopular 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”.

7. Regarding prevention of abuse of process of Court, Apex Court in 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 Sectionsection 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 SectionState 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”.

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

9. Accordingly, the application lacks merits and is dismissed.

9. However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within four weeks from today and apply for bail, then the bail application of the applicants 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 judgment passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

10. For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants.

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

Order Date :- 22.11.2019

Pcl

 

 

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