Court No. - 91
Case :- APPLICATION U/S 482 No. - 14392 of 2005
Applicant :- Arun Kumar Dubey
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Subodh Kumar
Counsel for Opposite Party :- Govt. Advocate,Arvind Srivastava,K.K. Singh
Hon'ble Brij Raj Singh,J.
Heard Sri Subodh Kumar, learned counsel for the applicant and learned A.G.A. for the State.
Sri Arvind Srivastava, appearing on behalf of opposite party no.1 is not present even in the revised call.
The applicant has challenged the Criminal Complaint No.13281 of 2003 (Ram Narain Ram Vs. Arun Kumar Dubey), under Section 500 I.P.C., Police Station Cantt. Varanasi, District Varanasi, pending in the Court of Chief Judicial Magistrate, Varanasi and also the consequential summoning order dated 23.06.2005 passed by the Chief Judicial Magistrate, Varanasi by which the applicant has been summoned.
The factual matrix of the case is that the applicant was posted in Telegraph Office, B.H.U. Campus, Varanasi. The opposite party no.1 was telegraphist in the said office. Opposite party no.1 was transferred vide order dated 7.4.2003 by the applicant, who is the competent authority. The transfer order dated 7.4.2003 was challenged in Writ Petition No.18174 of 2003 and the same was stayed vide order dated 13.5.2003. The applicant being competent authority filed Special Appeal No.417 of 2003 (Union of India and others Vs. Ram Narayan Ram). The Division Bench passed order and observation was made that the transfer is exigency of service. The transfer was within the city. The Court further observed that the learned Single Judge was not justified in interfering with the transfer order. Accordingly, the stay order granted by Single Judge was interfered and Special Appeal was allowed. The opposite party no.1, Ram Narayan Ram challenged the stay order of Special Appeal dated 13.05.2003 before Hon'ble Supreme Court and the Hon'ble Supreme Court dismissed the S.L.P. vide order dated 15.09.2003.
Opposite party no.1 being unsuccessful in the litigation filed complaint before the competent Court and he has made allegation that Arun Kumar Dubey, the applicant is harassing him and he is transferring him illegally. He has further mentioned that when he reached to the office of the applicant on 7.4.2003, he was abused by him. He also asked him as to why he was transferred. The said complaint was filed on 17.11.2003. The applicant has been summoned vide order dated 23.06.2005 (Annexure No.6).
Learned counsel for the applicant has further drawn attention to complaint dated 10.11.1983 (Annexure No.7) as similar type of complaint filed by opposite party no.1 before the Court making complaint against S.R. Subramanyam, Central Telegraph Master Varanasi. The allegations levelled against him in the complaint. The said complaint filed by opposite party no.1 was dismissed by the Court vide order dated 5.12.1984.
After perusal of the record, it is clear that it is the case of mala fide because opposite party no.1 lost his case before the Divsion Bench in Special Appeal as well as in Supreme Court.
The complaint (Annexure No.3) itself indicates that the same problem of transfer has already been mentioned by the opposite party no.1 in the paragraph nos.2 and 3 that he has been transferred illegally by the applicant.
The record reveals that opposite party no.1 is biased and being unsuccessful in the litigation, filed complaint to harass the applicant. The applicant being a competent authority exercised his power and transfer order was passed by him, due to which the opposite party no.1 had developed enmity. The present case is coming within the purview of mala fide and the complaint has no legs.
The date of occurrence is mentioned as 7.4.2003, whereas he filed the case before the Single Judge against transfer order which was stayed on 13.05.2003. Opposite party no.1 had knowledge of the said incident but he did not file any complaint. He filed complaint on 17.11.2003 which is subject matter of the present case. He was unsuccessful in Special Appeal No.417 of 2003 and his S.L.P. was also dismissed on 15.02.2003 but no complaint was filed. The present complaint is highly belated and afterthought. Being unsuccessful before the High Court as well as before the Apex Court. Opposite party no.1 filed the complaint after long lapse of time.
In the case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp (1) Supreme Court Cases 355, the Supreme Court has issued certain guidelines to interfere in the criminal cases under Section 482 Cr.P.C. Guidelines of paragraph no.102 (7) is worth to be quoted here:
"102 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In the present case, at the initial stage the complaint is quashed for the reason that the complaint is for ulterior motive and malicious, which is evident from the record. The similar view is also expressed in case of Madhavrao Scindia and others Vs. Sambhajirao Chandrojirao Angre and others, reported in 1998 1 SCC 692. Paragraph no.7 of the aforesaid judgment is quoted below:
"7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
The case of the applicant is covered by the aforesaid verdict of Hon'ble the Supreme Court.
I quash the complaint filed by opposite party no.1 and summoning order dated 23.06.2005 passed by the Chief Judicial Magistrate, Varanasi.
Accordingly, the application under Section 482 Cr.P.C. is
allowed.
Order Date :- 25.10.2021 Atul