HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- APPLICATION U/S 482 No. - 41726 of 2019 Applicant :- [ENTITY] And Anr Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- G.A. Hon'ble [ENTITY],J.
This Application, under [SECTION] of [ACT], has been filed by the Applicants, [ENTITY] and [ENTITY], against [ENTITY] and Smt. [ENTITY], with a prayer for setting aside entire proceeding, including summoning order, dated 20.7.2019, passed by the Additional Chief Judicial Magistrate, court no. 2, Rampur, in [CASE NUMBER], Smt. Rukhsana vs. [ENTITY] and others, under [SECTION], [SECTION] and [SECTION] of [ACT], Police Station- Kemari, District Rampur.
Learned counsel for applicants argued that complainant, Smt.[ENTITY], is not the owner of the truck, bearing registrar number, U.P.-22-T-9082, rather, her husband, [ENTITY], is the owner of the truck and there had been an agreement in between [ENTITY] and the applicants, wherein, there had been certain dues remaining against [ENTITY], as per paper no.39, but he has not been examined and this compliant, with malicious intention, has been filed, wherein, summoning order has been passed, hence, above application, with above prayer.
Learned AGA, representing [ENTITY], has vehemently opposed this Application.
Complainant, Smt.[ENTITY], in her application, under [SECTION] of [ACT] , against [ENTITY] and [ENTITY], has categorically stated herself to be owner of truck, bearing registration number, U.P.-22-T-9082, which has been given to [ENTITY] and [ENTITY], under an agreement, but since then, neither truck was returned back nor agreed amount was paid. This was under deceit and this was a criminal breach of trust for which payment was made. Threat of dire consequences was extended against which application, under [SECTION] of [ACT] was moved. This Application was treated as complaint, wherein, complainant was examined under [SECTION] of [ACT], wherein, she has reiterated contention of complaint. Her two witnesses, CW-1, [ENTITY], and CW-2, [ENTITY], were examined, under [SECTION] of [ACT], and they, too, reiterated contention of the complaint. On the basis of it impugned order of summoning for offences, punishable, under [SECTION], [SECTION] and [SECTION] of [ACT] was passed. Now a sale deed has been shown by the accused persons for showing ownership of husband over the truck. It is not a registration certificate of the truck. Complainant is the wife and [ENTITY] is her husband and she is ostensible owner of the truck. Alleged outstanding amount, said to be against [ENTITY] is not to be looked at by this Court, in exercise of inherent power, under [SECTION] of [ACT], because the same being a question of fact, is to be seen during course of trial, by the Magistrate, concerned, and as per law propounded by Apex Court in [PRECEDENT]: 2010 [CASE NUMBER] "While exercising jurisdiction under [SECTION] 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 [PRECEDENT], 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] 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 [PRECEDENT], the Apex Court has propounded "Inherent jurisdiction under [SECTION] 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 [PRECEDENT] 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 [PRECEDENT] has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under [SECTION] 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 [PRECEDENT], Apex Court propounded "In exercising jurisdiction under [SECTION] 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] [ACT] is within the limits, propounded as above.
In view of what has been discussed above, this proceeding, under [SECTION] of [ACT], merits dismissal and stands dismissed accordingly.
However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their 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. [ENTITY] reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. [ENTITY] For a period of 30 days from today, 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 :- 25.11.2019 bgs/