Court No. - 77
Case :- APPLICATION U/S 482 No. - 37684 of 2019 Applicant :- Rinku Gupta And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rama Pati Tripathi 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, Rinku Gupta and and Bal Mukund Gupta, against State of U.P. and Shubham Shukla, with a prayer for setting aside impugned summoning order, dated 21.4.2019 and, thereby, entire proceeding, in Complaint Case No. 3314 of 2019, Shubham Shukla vs. Bal Mukkund Gupt and another, under Sections 323, 504, 506, 452 of IPC, Police Station- Collectorganj, Distric Kanpur Nagar, pending before Additional Chief Metropolitan Magistrate, Court No.9, Kanpur Nagar.
Learned counsel for applicants argued that the complainant is a tenant in a rented portion of the accused persons and for it this accusation has been lodged with a view just to harass them. For remaining in possession of the premises, this complaint was filed and there is no legal medico legal report, supporting contention made in the complaint, but the Magistrate failed to appreciate facts and law placed before it, thereby, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, 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 occurrence has been said to be of 8.00 PM of 21.4.2019, when accused persons did criminal trespass in the portion of the complainant, which was witnessed by PW-1 and PW-2, who have been examined, under Section 202 of Cr.P.C., have supported contention of the complaint. Similar fact has been narrated, in the statement of the complainant, recorded, under Section 200 of Cr.P.C. This summoning order was based on the enquiry made by the Magistrate for which there is no illegality or irregularity. This Court, under Section 482 of Cr.P.C., may not embark upon factual aspect, which is to be seen during course of trial by the 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 judgment, in 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 yet another subsequent judgmen in 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 applicants do not appear before the Court below, within the aforesaid period, coercive action shall be taken against them.
Order Date :- 26.11.2019 bgs/