This application under Section 482 Cr.P.C. has been preferred for quashing of summoning order dated 24.04.2019 passed by learned Judicial Magistrate, Moradabad in Complaint Case No. 2812 of 2018, under Sections 323, 504 and 506 IPC (Islam Haider vs. Javed Ali and others) Police Station Civil Lines, District Moradabad as well as to quash the order dated 09.9.2020 passed by the learned Additional Sessions Judge Court No.10 Moradabad in Criminal Revision No. 81 of 2019, whereby the revision against the said summoning order has been dismissed.
It has been argued by the learned counsel for the applicant that the respondent no.2 has filed the complaint against the applicant and co-accused making false and baseless allegations and that the learned Magistrate has passed the impugned summoning order dated 24.04.2019 without application of judicial mind and without considering the matter in correct perspective. Learned counsel submitted that earlier applicant has lodged a first information report vide Crime No. 350 of 2019, under Sections 420, 406, 323, 504 and 506 IPC and one more first information report vide Crime No. 405 of 2019, under Sections 420, 406, 467, 468, 471, 323, 504, 506 IPC against respondent no.2 and others and the complaint of instant case has been filed as a counterblast of the same. Learned counsel submitted that several other proceedings were also going on between the parties. The allegation of respondent no.2 that the applicant and co-accused have demanded Rs. 16 lakhs as extortion, is highly improbable and bundle of lies. In said incident, no one has sustained any injury. Learned counsel submitted that in view of above stated facts and circumstances, it is apparent that the complaint of instant case was mala fide and it was maliciously instituted with ulterior motive and thus, both the impugned orders are liable to be set aside. In support of his contentions learned counsel has relied upon the case of M/s. Eicher Tractor Ltd. & Ors. vs. Harihar Singh & Anr. 2009(1) JIC 245 (SC).
Learned A.G.A. submitted that the allegations made in complaint and that statement of complainant recorded under Section 200 and of witnesses recorded under Section 202 Cr.P.C., makes out a prima facie case against the applicant. The Court below has considered entire facts and evidence and the impugned summoning order was passed. Further, the said summoning order has already been upheld by the learned Revisional Court by a detailed and reasoned order. It was submitted that there is no illegality or perversity in the impugned order.
It is well settled that while summoning an accused, Court has to see whether a prima facie case is made out or not. In other words Court has to consider whether there is sufficient evidence for summoning the accused and not the evidence sufficient to warrant conviction. The inquiry under Section 202 Cr.P.C. limited on only to ascertain truth and falsehood of allegation made in the complaint and whether on the material placed by the complainant, a prima facie case was made out for summoning the accused or not. It is also settled view that at this stage the defence of accused is not to be considered and that roving an inquiry in respect of merits of accusation is also not required. In fact it is quite well settled view that after examining the complainant and the witnesses, if Magistrate is satisfied that there is sufficient ground to proceed with the complaint, he can process by way of summons under Section 204 Cr.P.C.
In the case of Eicher Tractor relied upon by the learned counsel for the applicant making a reference the case of R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866, and State of Haryana vs. Bhajan Lal Hon'ble, (1990(2) JIC 997 (SC) Hon'ble Apex Court has held as under:
"As noted above, the powers possessed by the High Court underSection 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are ofmagnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers underSection 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is nomaterial to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings."
Keeping in view the above stated position of law, in the instant matter, perusal on record shows that there are clear allegations against the applicant and co-accused that they have made an illicit demand of Rs. 16 lakhs from respondent no.2 by threatening that if the said amount was not paid, they would kill him and that they have also abused and assaulted the respondent no.2. This version has been supported by the witnesses examined under Section 202 Cr.P.C. It is correct that various litigations are pending between the parties but at this stage, it cannot be concluded that the proceedings of the case lodged by the respondent no.2 are manifestly attended with mala fide. The above stated case law does not help in case of applicant.
The perusal of material on record shows that the impugned summoning order has been passed by applying due procedure and no substantial illegality, perversity or any other substantial error could be pointed out. It is well settled that the power under section 482 Cr.P.C has to be exercised by the High Court, interalia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Though the powers possessed by the High Court under Section 482 of Cr.P.C are very wide but the very plenitude of the power requires great caution in its exercise. The inherent power cannot be exercised to stifle a legitimate prosecution. Such powers have to be exercised only to give effect to any order under Cr.P.C. to prevent abuse of the process of any court and to secure the ends of justice. The impugned summoning order has already been upheld by the revisional Court by detailed and reasoned order. No material illegality or perversity could be shown in both the impugned orders. There is nothing to indicate that there has been any abuse of the process of Court or miscarriage of justice, so as to require any interference by this Court in exercise of power under Section 482 Cr.P.C.
Accordingly, the prayer as made above is refused.
However, keeping in view the facts of the matter and impact of Covid-19 Pandemic, it is directed that in case applicant appears and surrenders before the Court below and applies for bail within a period of 45 days from today, his bail application shall be considered and decided expeditiously in accordance with settled law. For a period of 45 days from today or till the applicant surrenders before the court below, whichever is earlier, no coercive action shall be taken against the applicant.
With the aforesaid directions, the application under Section 482 Cr.P.C. is disposed off finally.
Order Date :- 13.1.2021 A. Tripathi