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Sh. H.P. Singh vs State Of Uttarakhand & Another on 1 October, 2019

IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Miscellaneous Application No. 358 of 2016
(Under Section 482 CrPC)

Sh. H.P. Singh …… Applicant

Versus

State of Uttarakhand Another …….Respondents

Mr. Aditya Singh, Advocate, for the applicant.
Mr. S.K. Chaudhary, Deputy Advocate General, for the State.
Mr. Bhupesh Kandpal, Advocate, for the
complainant/respondent no. 2.

Judgment reserved on : 04.9.2019
Judgment delivered on: 1.10.2019

Hon’ble N.S. Dhanik, J.

This Criminal Miscellaneous Application,
under Section 482 CrPC, is preferred to quash the
Complaint Case No. 905/2015 and the summoning
order dated 7.12.2015 passed therein by the Additional
Chief Judicial Magistrate, Khatima, District Udham
Singh Nagar.

2. Background facts of the case, necessary to be
noted for deciding the present criminal miscellaneous
application are:-

2.1 The applicant is the Managing Director of a
non-banking financial company ‘Satin
Creditcare Network Ltd.’, engaged in
microfinance business, having its registered
office in Delhi and which has one of its
branches situated and functioning at
Sitarganj in District Udham Singh Nagar,
Uttarakhand. Complainant and her colleagues
availed the facility of group finance from the
said branch of this company.

2

2.2 Respondent no. 2 instituted the impugned
complaint case before the Court of Additional
Judicial Magistrate, Khatima, District Udham
Singh Nagar. Respondent no. 2 averred in the
complaint that she herself availed loan and
helped other poor women in availing the loan
in group from the said company and thus she
came in contact with the accused persons,
who assured her to give employment in the
said branch of the company. On 17.5.2015,
the complainant received the message of
Branch Manager (Subhash Babu) that boss is
coming from Delhi and he asked her to come
to Sitarganj as the issue of her employment
would be finalized. At about 3 PM on that day,
the complainant along with her three years
old son reached in the office of the said
company in Sitarganj and all the three
accused persons were present there at that
time. While extending the hospitality to the
complainant, the accused persons gave her
some spiked stuff to eat and on the pretext of
having lunch, the accused persons along with
the complainant left for the hotel in a car.
While travelling, the accused persons tried to
outrage the modesty of the complainant and
asked her to compromise and make the
applicant happy and they would give her
permanent job. Suspecting their intentions,
the complainant deboarded the car on the
pretext of getting some water for her son and
thereafter she ran towards the crowd. On
seeing this, the accused persons escaped in
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the car and thus the complainant rescued
herself. The complainant also averred in her
complaint that she reported the incident to
the Police Station Nanakmatta and also sent
letter to the Superintendent of Police, but no
action was taken in the matter. Ultimately,
she filed the complaint before the Court
below.

2.3 After recording the statements of the
complainant and her witnesses under Section
200 and 202 CrPC respectively and also
considering the documentary evidence, the
Court below vide the impugned order dated
7.12.2015 summoned all the three accused
persons including the present applicant to
face trial for the offence punishable under
Section 354 IPC.

2.4 Aggrieved, the applicant has challenged the
proceedings of the said complaint case and
the summoning order passed therein.

3. The accused applicant before this Court has
taken the plea of alibi. It is the contention of the
applicant that on the alleged date of incident, he was
not in India as he had left India on 9th May, 2015 for
Frankfurt and arrived back to India on 25th May, 2015,
which proves that the allegations against the applicant
are false and frivolous. Learned Counsel for the
applicant, during the course of hearing, produced the
applicant’s original passport containing the entries of
immigration check at the time of arrival and departure
of travelling abroad on the aforementioned dates. Copy
of the said document is available on the record.

4

4. It is the contention of learned Counsel for
the applicant that the document (passport) produced by
the applicant, in support of his plea of alibi, is
unimpeachable evidence and hence the impugned
proceeding against the applicant is the gross abuse of
the process of law. Learned Counsel for the applicant
attracted attention of this Court towards Section 56
and sub-sections (6), (8) and (13) of Section 57 of the
Evidence Act, 1872, which are set out as under:

“56. Fact judicially noticeable need not
be proved.–No fact of which the Court will
take judicial notice need be proved.

57. Facts of which Court must take
judicial notice.–The Court shall take
judicial notice of the following facts:–
(1) ….

(2) ….

(3) …..

(4) …..

(5) …..

(6) All seals of which English Courts take
judicial notice: the seals of all the Courts in
India, and all Courts out of India
established by the authority of the Central
Government or the Crown Representative:
the seals of Courts of Admiralty and
Maritime Jurisdiction and of Notaries
Public, and all seals which any person is
authorized to use by the Constitution or an
Act of Parliament of the United Kingdom or
an Act or Regulation having the force of law
in India;

(7) …..

(8) The existence, title and national flag of
every State or Sovereign recognized by the
Government of India;

(9) ……

(10) ……

(11) ……

(12) ……

(13) The rule of the road, on land or at sea.

5

In all these cases, and also on all
matters of public history, literature, science
or art, the Court may resort for its aid to
appropriate books or documents of
reference.

If the Court is called upon by any
person to take judicial notice of any fact, it
may refuse to do so, unless and until such
person produces any such book or
document as it may consider necessary to
enable it to do so.”

5. Learned Counsel for the applicant argued
that in view of the said provisions, the evidence
produced before this Court needs to be appreciated and
accepted. Learned Counsel placed reliance on the
decisions of the Hon’ble Apex Court in Adalat Prasad v.
Rooplal Jindal Others, (2004) 7 SCC 338; Suresh
Kumar Tekriwal v. State of Jharkhand Another,
(2005) 12 SCC 278; State of Orissa v. Debendra Nath
Padhi, (2005) 1 SCC 568, and Anita Malhotra v.
Apparel Export Promotion Council, (2012) 1 SCC 520.

6. Learned Counsel for the complainant
refuted the contentions of learned Counsel for the
applicant and argued that this Court in jurisdiction
under Section 482 CrPC cannot appreciate the
evidence. He contended that mere entry in the passport
cannot be taken as a basis for proving alibi and the
passport entry is not an impeccable entry. He further
argued that specific allegation has been made against
the accused persons including the present applicant
and after recording the statements under Section 200
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and 202 of the Code, the process has been issued
against the applicant and the claim of alibi at this stage
is not maintainable.

7. Having considered the materials on record and
the rival contentions advanced by learned Counsel for
the parties, I am unable to agree with the contentions
urged by learned Counsel for the applicant. Section 56
is the celebrated provision of Evidence Act which
provides that “no fact which the Court will take judicial
notice need be proved” i.e. no evidence is required of
that fact of which the judicial notice has been taken by
the Court and the same shall be recognized as true
without proof thereof. However, the condition precedent
for the same is that such a fact should be very
authentic and well known to the public. In my
considered opinion, the entries of the passport, as relied
by the applicant in support of his plea of alibi, are not
the facts which are covered under sub-sections (6), (8)
and (13) of Section 57 of the Evidence Act.

8. Judgments relied upon by learned Counsel for
the applicant are not attracted in the facts of the present
case. The issue involved in the Adalat Prasad case was
whether the trial court, which issued the summons, was
empowered to recall its order. Subramanium
Sethuraman case pertained to the offence punishable
under Section 138 of the Negotiable Instruments Act
against a company and its Directors where after issue of
summons, the accused company filed application for
discharge which was allowed by the trial court. It was
held by the Supreme Court that the only remedy
available to an aggrieved accused to challenge an order
in an interlocutary stage is the extraordinary remedy
7

under Section 482 of the Code and not by way of an
application to recall the summons or to seek discharge
which is not contemplated in the trial of a summons
case. In Suresh Kumar Tekriwal case, the ratio laid
down in the Adalat Prasad case has been followed.
In State of Orissa vs. Debendra Nath Padi, the issue
involved was regarding right of the accused to file any
material or document at the stage of framing of charge.
The dispute in Anita Malhotra case pertained to
Negotiable Instruments Act.

9. Learned Counsel for the complainant placed
reliance on a judicial authority of the Hon’ble Apex
Court in Rajendra Singh v. State of U.P. Another,
(2007) 7 SCC 387, in support of his contention that the
plea of alibi cannot be considered at this stage and it is
for the accused to establish such plea of alibi at the time
of trial and the burden to prove the same also lies on the
accused. In the said decision, the Hon’ble Apex Court
has observed that “Section 103 of the Evidence Act says
that the burden of proof as to any particular fact lies on
the person who wishes the court to believe in its
existence, unless it is proved by any law that the proof of
that fact lie on any particular person.” The Hon’ble Apex
Court further observed as under:

“This provision makes it obvious that the
burden of establishing the plea of alibi set up
by the respondent No. 2 in the petition filed
by him under Section 482 Cr.P.C. before the
High Court lay squarely upon him. There is
hardly any doubt regarding this legal
proposition. This could be done by leading
evidence in the trial and not by filing some
8

affidavits before the High Court. In such a
case the prosecution would have got an
opportunity to cross-examine those
witnesses and demonstrate that their
testimony was not correct. ……”

10. Further, on the basis of the materials on
record, I am also of the opinion that on the basis of the
allegations made in the complaint, if taken at their face
value and accepted in their entirety, a prima facie case is
made out against the accused applicant. It is settled law
that the summoning order and the proceedings of a
complaint case can be quashed if the complaint on the
very face of it does not disclose any offence against
the accused. In the present case, specific allegations
have been made against the accused persons including
the present applicant. Alleged incident has been
narrated in detail with specific date and time. The
background scenario and the motive behind the alleged
incident have also been stated in the complaint. Process
has been issued against the accused applicant after
taking cognizance of the complaint and examining the
complainant and the witnesses.

11. It is also settled law that power under
Section 482 CrPC requires great caution in its exercise.
A Constitution Bench of the Hon’ble Apex Court has
elaborately discussed such scope in the case of Inder
Mohan Goswami Another v. State of Uttaranchal
others, (2008) 1 SCC (Cri) 259, and has held that
inherent power under Section 482 CrPC can be
exercised: (i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of court, and (iii) to
9

otherwise secure the ends of justice. If any abuse of the
process leading to injustice is brought to the notice of
the court, then the court would be justified in
preventing injustice by invoking inherent powers.
However, the inherent power should not be exercised to
stifle a legitimate prosecution.

12. In view of what has been set forth above, I
do not find any force in this criminal miscellaneous
application. Consequently, the present C482 petition is
dismissed. Interim order, if any, stands vacated. Inform
the Court concerned accordingly.

(N.S. Dhanik, J.)

Prabodh

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