Court No. - 77
Case :- APPLICATION U/S 482 No. - 33819 of 2016 Applicant :- Rajiv Singh And Another Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Sharique Ahmed Counsel for Opposite Party :- G.A.,Rajkishore Singh
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants, learned counsel for O.P. No. 2 and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicants Rajiv Singh and Ram Kripal against State of U.P. and Malkhan with prayer to quash the summoning order dated 21.9.2016 as well as entire proceedings of Complaint Case No.
221 of 2015, Malkhan Vs. Rajiv Yadav and others, under Sections 323, 504, 506 I.P.C., pending in court of A.C.J.M., Court No. 12, Fatehpur.
Learned counsel for the applicants argued that it is a malicious prosecution for taking revenge from the applicants because previously a case was instituted by Rajiv Singh against Mauji Lal, Malkhan Singh and Mulayam Singh u/s 427, 506 I.P.C. regarding a dispute of a boundary of a field and it was got registered on 28.1.2013, wherein investigation upon an application moved u/s 155 Cr.P.C. was made and charge sheet for above offences was filed. Subsequent to it, this malicious litigation with false case was got launched by way of an application u/s 156(3) Cr.P.C., wherein there was no medico legal examination report given by Medical Officer, as has been held in the statement of Medical Officer. Even an information under Right to Information Act was obtained to that effect. The witnesses did not support the prosecution case u/s 161 Cr.P.C. As a result, final report was submitted. But under protest, this was treated to be a complaint, wherein complainant u/s 200 Cr.P.C. and his two witnesses u/s 202 Cr.P.C. were examined and on the basis of which applicants have been summoned for the offences punishable u/s 323, 504, 506 I.P.C. It was a malicious prosecution in view of the law propounded by Apex Court in State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, subsequently followed in the case of M/s Eicher Tractors Ltd. and others Vs. Harihar Singh and another, vide judgment dated 7.11.2008 passed in Criminal Appeal No. 1755 of 2008 arising out of S.S.P. (Cri.) No. 861 of 2007. It fell in the seventh category of cases mentioned in Bhajan Lal's case (Supra) amounting to malicious prosecution. Hence this application with above prayer.
Learned A.G.A. as well as learned counsel for O.P. No. 2 have vehemently opposed the application.
Having heard learned counsel for both sides and from very perusal of the impugned summoning order passed by learned Magistrate over protest petition, it is apparent that cognizance has not been taken by the Magistrate on the basis of evidence collected by the Investigating Officer. Rather decision was taken for proceeding as a complaint and for recording evidence in an enquiry to be made by Magistrate. Hence, whatever evidence was collected by the Investigating Officer was not made basis for summoning. Hence entire argument regarding it did not relate with present summoning order. Magistrate examined complainant u/s 200 Cr.P.C. and his two witnesses u/s 202 Cr.P.C., wherein it was categorically stated that the accused persons were having their field adjacent to field of complainant and were making boundary of it by encroaching land of complaint on above date of occurrence i.e. 9.6.2013 and when it was protested by complainant, applicants along with three others did assault and there was abuse with extension of threat of dire consequences. It resulted in fracture in upper limb of complainant. Though, injury of fracture was not supported by medical evidence, hence the Magistrate did not summon the applicants for offences punishable u/s 325 I.P.C. Admittedly, there is previous litigation in between regarding same cause of action of limit of agricultural land being adjacent to each other. Having cause of action regarding agricultural land and thus previous instance may be motive for either way. But it is to be seen during course of trial before the Magistrate. Summoning is based on evidence collected by the Magistrate during enquiry made by him.
Accordingly, there seems no justification for any indulgence by this court in exercise of inherent jurisdiction u/s 482 Cr.P.C. because there seems no misuse of process of law. However, before the Magistrate all these facts were not on record and it will be brought by way of recording evidence u/s 244 Cr.P.C. Then after either application for discharge u/s 245 Cr.P.C. may be moved or the Court itself may hear and decide whether proceeding of trial is needed by framing charge and further proceeding u/s 246 Cr.P.C.
Accordingly, this application is disposed off.
However, in the interest of justice, it is provided that if the applicants appear and surrender before the court below within four weeks 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 four weeks 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 applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
Order Date :- 27.11.2019 Pcl