Court No. - 77
Case :- APPLICATION U/S 482 No. - 41553 of 2019 Applicant :- Anand Pal And 14 Ors Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shyam Shanker Pandey Counsel for Opposite Party :- G.A.,Manoj Kumar Rajvanshi
Hon'ble Ram Krishna Gautam,J.
This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Anand Pal and fourteen and others, with a prayer for setting aside summoning order, including, entire criminal proceeding, of Criminal Complaint Case No.162/9/2019, Smt. Kamlesh vs. Anand Pal and others, under Sections 500 and 509 of Indian Penal Code.
Learned counsel for applicants argued that the complainant had filed a criminal case against two innocent persons regarding offence of outraging of her modesty, wherein, these 15 persons, applicants, herein, have submitted their affidavits, before the Senior Superintendent of Police, mentioning therein correct fact that no such occurrence ever occurred and it was submitted in good faith, but this complaint has been filed for offence of defamation, punishable, under Section 500 of IPC, for the same submission of affidavits, whereas, under Exception 9, attached with Section 499 of IPC, once an affidavit is under good faith for protecting interest of maker of such affidavit or some-one else, then, it will not amount to defamation and in present case, affidavits, filed, were of this category, even then, Trial court, passed impugned summoning order, under misuse of process of law. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.
Learned counsel, appearing on behalf of Opposite party no.2 and Learned AGA, representing State of U.P., have vehemently opposed this Application.
Learned counsel, appearing for Opposite party no.2, submitted that at the time of passing of summoning order, under Section 204 of Cr.P.C., only existence of a prima facie case is to be seen.
In present case, affidavits are being admitted to have been filed, wherein, complainant has been mentioned to be a characterless lady. It was a clearcut case for offence,, punishable, under Section 500 of IPC. Hence, court below was justified in passing impugned summoning order and as such this proceeding be dismissed.
Heard learned counsel for both sides and gone through materials, placed on record.
Section 499 of IPC, and its exception given at 9, is to be seen by the Magistrate at the time of proceeding of levelling of charge or at the stage of judicial making. At this stage, Magistrate was to see existence of a prima facie case, if any, and admittedly those affidavits have been filed by the applicants, wherein, those contentions were made and they were contemptuous as well as of defamatory nature. Now, the question, was it in good faith or deliberate, is a question of fact to be looked at by the Trial court.
Hence, under all above facts and circumstances, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to embark upon factual matrix because the same is a question, to be gone into, during course of trial, by the Trial court.
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.
However, it is directed that if the applicants 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 :- 18.12.2019/bgs/