Court No. - 77
Case :- APPLICATION U/S 482 No. - 39970 of 2019 Applicant :- Kusum Yadav And Anr Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Rakesh Prasad,Devendra Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Kusum Yadav and Amit Yadav, against State of U.P. and Jiley Singh, with a prayer for setting aside impugned summoning order, dated 14.11.2014, passed by the Judicial Magistrate-I, Bulandshahr, in Complaint Case No.1218 of 2016, Jiley Singh vs. Amit Yadav and another, under Section 323, 452, 504 and 506 of IPC against applicant no.1 and under Section 379 of IPC against Applicant no.2 and order, dated 8.3.2019, passed by the Additional Sessions Judge, Court No.1, Bulandshahr, in Criminal Revision No. 347 of 2017.
Learned counsel for applicants argued that it is a family dispute, but a criminality has been assigned to it. There is contradiction in the statements recorded, under Section 200 of Cr.P.C. as well as complainant's versions, which is not supported by statement of PW-1 and even then impugned summoning order was passed, which is highly improbable and as per law laid down by the Apex Court, in the case of Pepsi Food Ltd. and Another vs. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749, the court has to consider the evidence, at the time of summoning. It can never be a summoning in routine on the basis of statement, under Sections 200 and 202 of Cr.P.C., rather, ingredients of offences are to be seen. In present case, the principles laid down by Apex Court in the case of State of Haryana vs. Bhajan Lal, reported in 1992 Supp(1) SCC 335, have also not been followed. Hence, this Application, with above prayer.
Learned AGA, representing State of U.P., has vehemently opposed this Application.
Having heard learned counsel for both sides and gone through materials on record, it is apparent that the complaint was filed by Jiley Singh with contention that Amit Yadav is son of Kusum Yadav and he, alongwith assistance of others, used to misbehave with village people very often. On 27.6.2013, at about 10.00 AM, while complainant was sitting at his home, both accused persons, Amit Yadav and Kusum yadav, did criminal trespass, being armed with 'Gadala' (an iron Bar), damaged door. On being protested, they abused, did assault and, meanwhile, Amit Yadav snatched golden chain, weighing about 10 Gram, from neck of the complainant. They also extended threat of dire consequences and upon hue and cry made by the complaint, fired gun shot upon complainant, with an intention to kill him. Many persons rushed to the spot, then, they ran away from there. A report was submitted at the Police Station, Sikandarabad, on 28.6.2013, which was registered as NCR, under Sections 427, 504, 506 of IPC. Thenafter, this complaint was filed. Learned Magistrate examined comlainant, under Section 200 and his two witnesses, under Section 202 of Cr.P.C., wherein contention of complaint is fully intact. Magistrate applied its judicial mind and passed impugned order of summoning as above. It was substantiated by facts on record. A criminal revision was filed, assailing impugned summoning order, wherein, revisional court dismissed revision, vide order, dated 8.3.2019. This Court, under Section 482 of Cr.P.C., in exercise of inherent jurisdiction, is not expected to make meticulous analysis of facts because the same are questions, to be gone into during course of trial by Trial court, as has been propounded by 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 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 another subsequent 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 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 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 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 proceeding, under Section 482 of Cr.P.C., merits dismissal and stands dismissed accordingly.
However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within thirty (30) days from today and apply for bail, then the bail application of the applicants 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 judgment 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 thirty (30) days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicants.
However, in case, the applicant does not appear before the Court below, within the aforesaid period, coercive action shall be taken against them.
Order Date :- 26.11.2019 bgs/