HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- APPLICATION U/S 482 No. - 43147 of 2019 Applicant :- [ENTITY] And 2 Others Opposite Party :- [ENTITY] and Another Counsel for Applicant :- [ENTITY],[ENTITY] Counsel for Opposite Party :- G.A. Hon'ble [ENTITY],J.
This Application, under [SECTION] of [ACT], has been filed by the Applicants, [ENTITY], [ENTITY] and [ENTITY], against [ENTITY] and [ENTITY], with a prayer for quashing of summoning order, dated 8.7.2019, passed by Chief Judicial Magistrate, Chandauli, and, thereby, entire criminal proceeding, in [CASE NUMBER] ([ENTITY] Devi vs. [ENTITY] and others), under [SECTION], [SECTION] and [SECTION] of [ACT], Police Station-Chandauli, Distric-Chandauli, pending before the court Chief Judicial Magistrate, Chandauli.
Learned counsel for applicants argued that an application, under [SECTION] of [ACT], was moved by Smt. [ENTITY], Opposite party no.2, herein, wherein, a report from the Police Station, concerned, was called for and in this report, Police Station, concerned, has reported to the court that no such occurrence ever occurred as was complained in this application, rather, for an occurrence of 9.6.2016, on the report of [ENTITY], son of [ENTITY], against [ENTITY], son of [ENTITY], [ENTITY], son of [ENTITY] and [ENTITY], son of [ENTITY], [CASE NUMBER], under [SECTION], [SECTION] [ACT] was got registered. Again on a report, dated 10.6.2016, preventive proceeding, under [SECTION] of [ACT], has been initiated against them and this false occurrence has been complained. Applicants have moved an application before the Medical Board for getting complainant medically examined by the Medical Board, but as per the report of the Medical Board, inspite of repeated summoning order, she restrained herself to appear before the Medical Board, because it was there. Though no occurrence has occurred, but this false accusation for commission of offences, as above, hence, for avoiding abuse of process of law and securing ends of justice, this Application, under [SECTION] of [ACT], has been filed, with above prayer.
Learned AGA, representing [ENTITY], has vehemently opposed this Application.
A report of Police is of no avail, where an enquiry has been made by the Magistrate, under [SECTION] of [ACT] and the Magistrate took a decision for taking cognizance over an application, filed, under [SECTION] of [ACT] and to proceed as a complaint case by itself. Under above enquiry, complainant was got examined, under [SECTION] and her two witness were examined, under [SECTION] of [ACT] The Medico Legal Report and X-ray report of fact of grievous hurt was annexed with the complaint. The same contention was reiterated by the complainant, [ENTITY] that on above date, time and place, in the month of July, while she came back from Hyderabad, accused persons hurled abuses and assaulted her, wherein, she sustained grievous hurt, by way of fracture in her right upper limb. This fact was reiterated by witnesses, examined, under [SECTION] of [ACT], who were named as witnesses, named in the complaint. Hence, at the time of summoning, which was passed, under [SECTION] of [ACT], Magistrate, has to apply its judicial mind and to see as to whether prima facie there is sufficient ground for passing order, by way of summoning, for which elements required were there. Magistrate has not to make analytic analysis of the evidence for passing order of summoning at that juncture and in present case, summoning was passed on the basis of evidence placed before the Magistrate in his enquiry.
Now subsequent development that complainant failed to appear before the Medical Board is to be appreciated by the Magistrate in its further enquiry during trial and present applicants will have opportunity to place those facts, by way of cross-examinatin, at the stage of proceeding, under [SECTION] of [ACT], the Magistrate will decide as to whether there is ground for framing of charge, if any, is there or not, thereby, it may, thus, discharge, under sub-sections (1) and 2) of [SECTION] of [ACT]
At present, this Court, in exercise of inherent power, under [SECTION] of [ACT], is not expected to embark upon factual matrix because the same is a question, to be gone into, during course of trial, by the Trial court. Accordingly, there appears o be no abuse of process of law.
Apex Court, in [PRECEDENT], has propounded that "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 judgment, in the case of [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 yet another judgment, in the case of [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 the case of [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 the case of [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 the case of [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 Application, under [SECTION] of [ACT], merits dismissal and it stands dismissed accordingly. However, applicants will be at liberty to place all these facts before the Magistrate at the time of recording of evidence, under [SECTION] of [ACT], whereupon, learned Magistrate, shall make his decision, without being influenced by any observations made by this Court, hereinabove, in this order.
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.
In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
Order Date :- 9.12.2019 bgs/