Court No. - 77
Case :- APPLICATION U/S 482 No. - 42471 of 2019
Applicant :- Rakesh Sharma
Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajesh Sharma Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
The applicant Rakesh Sharma, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of the Court with prayer for quashing of summoning order dated 23.01.2019 passed by learned Chief Judicial Magistrate, Mau as well as entire proceeding of Criminal Complaint Case No. 5991 of 2016 (Ramakant Sharma Vs. Rakesh Sharma), under Section 406, 420, 506 of IPC, Police Station- Kotwali, District Mau, pending before the Court of Chief Judicial Magistrate, Mau. Further prayer has been made to stay the further proceedings of the aforesaid case.
Heard learned counsel for the applicant and learned A.G.A. for the State.
Learned counsel for the applicants argued that it was a malicious prosecution under misuse of process of Court. No such above agreement occurred nor above payment was made and there is no documentary evidence of alleged payment of Rs. 10 lacs except oral testimony. The payment in bank account was for meager amount, which was paid in lieu of return of money due against informant. But subsequently, this has been manipulated. Hence, this proceeding with above prayer for ensuring end of justice.
Learned AGA has vehemently opposed the above prayer.
From the very perusal of complaint over which Magistrate has taken congizance, it is apparent that complainant Ramakant Sharma has said that Rakesh Sharma by showing forged and fictitious khatauni, assured himself to be owner of agricultural land Arazi No. 337, Gata No. 486, area 0.939 hectare, for which they entered in agreement for sale for consideration of Rs. 14 lacs and 12 lacs was paid on 26.12.2013 and rest two lacs were paid through deposit in bank account of applicant and his son. Subsequently, it came to notice that above Arazi number was of banjar land and khatauni was forged one. When money was demanded, threat of dire consequences was extended on 7.5.2016. Complainant was examined under section 200 of Cr.P.C. and his two witnesses were examined under Section 202 of Cr.P.C. and full corroboration with reiteration of above contention is there. Hence, factual aspect being argued by learned counsel for the applicant is not to be seen by this Court in exercise of inherent power under Section 482 of Cr.P.C., is not expected to make analytical analysis of evidence and fact of the case, as the same is the question before 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 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. The impugned order was well based on evidence and facts collected by Magistrate in its enquiry. Hence, this proceeding merits its dismissal.
Dismissed, accordingly.
However, in view of the entirety of facts and circumstances of the case, it is directed that in case the applicant appears and surrenders before the court below within 30 days and no more from today and apply for bail, his 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 Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. Till then no coercive measure shall be taken against the applicants.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 28.11.2019 Kamarjahan