Both these petitions under section 482 Code of Criminal Procedure (for short ''Cr.P.C.') have been filed for quashing the proceedings of Complaint Case No. 858 of 2013 Santosh Pandey Vs. Rajneesh Yadav and others and also the order dated 29.6.2013 passed by A.M.M.-III, Unnao, whereby petitioners Rajneesh Yadav alias Bajrangi , Sonu Yadav, Amar Singh Yadav and Arjun singh alias Natthu Singh Yadav have been summoned to face trial under sections 323, 452, 504,506 IPC Since both these petitions are arising out of same proceedings, they are being disposed of by a common order.
Brief facts for deciding these petitions are that a criminal complaint has been filed by opposite party no. 2, Smt. Santosh Pandey against the petitioners having Case No. 858 of 2013 alleging therein that petitioner Rajneesh Yadav alias Bajrangi in (Criminal Misc. Case No. 5058 of 2013 (U/s 482 Cr.P.C.), the son of petitioner Amar Singh Yadav is Gunda. On 11.4.2013 at about 5.30 p.m., some altercation took place in between Rajneesh Yadav alias Bajrangi and Rishi Pandey, the son of opposite party no. 2. Rajneesh Yadav alias Bajrangi extended threats to life to Rishi Pandey. A complaint of it was made to the police. The police came, but Rajneesh Yadav alias Bajrnagi escaped. On 12.4.2013 at about 6.45 p.m. Rishi Pandey was standing on his door. The petitioners came alongwith sticks on their hands, abused Rishi Pandey. Rajneesh Yadav alias Bajrangi asked what you have achieved by making complaint with the police. Rishi Pandey entered into his house. All the four petitioners also entered into the house and beat Rishi Pandey with sticks. When opposite party no. 2 came to rescue her son, she was also beaten by kicks and fists and also by stick. Rishi Pandey was badly injured and became unconscious. The incident was witnessed by Pradeep Awasthi, Ashok Tiwari and several other persons, who came on spot after hearing cries. Rishi Pandey was medically examined on 15.4.2013. When police did not take action, complaint was filed.
In Criminal Misc. Case No. 4153 of 2013 (U/s 482 Cr.P.C.) relating to Arjun Singh alias Natthu Singh Yadav a Co-ordinate Bench of this Court vide order dated 19.9.2013 called for report from the Circle Officer In-charge of police station Gangaghat, District Unnao with regard to presence of petitioner Arjun Singh @ Natthu Singh Yadav on the date of occurrence. The police submitted report that Arjun Singh @ Natthu Singh Yadav was on official duty at District Mahrajganj on 12.4.2013 though he was not posted there.
In both these cases under section 482 Cr.P.C the ground to challenge the summoning order and continuance of the proceedings is that petitioners Arjun Singh alias Natthu Singh Yadav, Amar Singh Yadav and Shailendra Yadav alias Sonu were at their work places at the time of alleged incident i.e. 12.4.2013.
The second ground of attack is that daughter of opposite party no. 2 was kidnapped by one Deepu Yadav, who was closely related to the petitioners' family and, therefore, the petitioners have been falsely implicated in the complaint case. The case of kidnapping the daughter of opposite party no. 2 is still pending against Deepu Yadav. The petitioners have filed certain documents to demonstrate that they were on their work places at the time of alleged incident. The plea which has been taken for quashing the proceedings with regard to absence of petitioners Arjun Singh alias Natthu Singh Yadav, Amar Singh Yadav and Sonu Yadav is based on plea of alibi, which is plea of defence and ought to have been proved by the accused persons by adducing cogent evidence.
So far as second ground of attack is concerned which relates to kidnapping of daughter of opposite party no. 2 by Deepu Yadav is concerned, it is not in dispute.
Heard learned counsel for the parties and perused the record. It has been contended by the learned counsel for the petitioners that police did not found any material against accused petitioner Amar Singh Yadav and his son Sonu Yadav, who have been falsely implicated in this case and in that regard extract of police report dated 27.9.2005 has been brought on record as Annexure no. 7 to this petition.
After considering the aforesaid facts, it cannot be said that after lapse of more than 8 years, a false case can be cooked up against the petitioners. The facts which are based on some evidence, ought to have been appreciated by the trial court and not by this Court while exercising jurisdiction under section 482 Cr.P.C The Apex Court in Rajiv Thapar Vs. Madan Lal Kapoor (2013) 3 SCC 330 had an occasion to rule what documents on material could be considered while exercising jurisdiction under section 482 Cr.P.C. to quash the proceedings after rejecting and discarding the accusations levelled by the complaint, without the necessity of recording any evidence. The Apex Court in paras 29,30 and 31 observed as follows:
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5.If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
In light of the aforesaid ratio propounded and directions issued this case has to be judged on touch stone of the aforesaid guidelines issued in Rajiv Thapar's case (Supra). So far as the report submitted by the police in this court is concerned, no doubt it mentions that petitioner Arjun Singh alias Natthu Singh Yadav was present on 12.4.2013 at Mahrajganj on his official duty.
As report has been submitted in pursuance of the order passed by the Co-ordinate Bench of this Court, it cannot be ignored by this Court. But at the same time, the report which was submitted by the C.O., Unnao is based on statement and record which ought to have been tested with cross examination during trial.
So far as question of absence of petitioner Amar Singh Yadav and Shailendra Yadav is concerned, though they filed documents in respect of alibi. These documents are not public documents and do not fall within the category of step one as mentioned in Rajiv Thapar's case (Supra). Unless the plea of alibi is established by cogent evidence, no inference could be drawn on the basis of those documents to this effect that present proceedings are abuse of process of court.
So far as petitioner Rajneesh Yadav alias Bajrangi is concerned, he has not pleaded his absence. So far as the evidence of medical examination causing injury to Rishi Pandey is concerned, it is on record coupled with evidence of injured. Therefore, at this stage, it cannot be said that present proceedings are abuse of process of court unless plea of alibi taken by the petitioners is established by cogent evidence.
As Co-ordinate Bench of this Court has asked for report in respect of petitioner Arjun Singh alias Natthu Singh Yadav, this Court is of the view that in these circumstances, if this petition is finally disposed of with following directions, it would serve the ends of justice and the principle of fair trial enshrined under Articles 20 and 21 of the Constitution of India would be advised.
Directions
1.That in case the petitioners appear before trial court within four weeks from today and move application for bail, the same shall be considered and disposed of expeditiously in accordance with law and also keeping in view the directions contained in the judgment delivered by the Apex court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.). If bail application of the petitioners is not disposed of on same day by the court concerned , the petitioners shall be released on interim bail till the final order passed thereon.
For four weeks or till the date of surrender, whichever is earlier, no coercive steps shall be taken against the petitioners.
2.That after appearing in the trial court, the petitioners shall move appropriate application before trial court. The trial court shall proceed to decide the plea of defence in the form of alibi before further proceeding with trial. The petitioners may be allowed to adduce evidence in respect of plea taken by them as plea of alibi and the trial court after giving opportunity to adduce evidence to the prosecution will decide the plea of alibi taken by the petitioners Arjun Singh alias Natthu Singh Yadav, Amar Singh Yadav, Shailendra Yadav and Sonu Yadav. In case the plea of alibi fails then the trial shall proceed against them in accordance with law.
3.That trial court will decide the defence plea of alibi taken by the aforesaid petitioners within four months from the date of communication of this order.
Interim order granted by this court in both these petitions stand vacated.
In view of the above, these two petition are disposed of finally.
Order Date: 7.11.2014 GSY