HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- APPLICATION U/S 482 No. - 36488 of 2019 Applicant :- [ENTITY] Opposite Party :- [ENTITY] and Another Counsel for Applicant :- [ENTITY] Counsel for Opposite Party :- G.A. Hon'ble [ENTITY],J.
Heard learned counsel for the applicant over this Application, moved under [SECTION] of Code of Criminal Procedure, 1973, by the applicant, against [ENTITY] and [ENTITY], challenging summoning order, dated 29th August, 2019, passed by the Additional Chief Judicial Magistrate, Varanasi, in Complaint Case No. 2278 of 2018, under [SECTION] of [ACT], pending in the court of Additional Chief Judicial Magistrate, Varanasi.
Learned counsel for the applicant argued that the impugned summoning order has been passed without any evidence on record. Very contention of the complainant was not substantiated by the witnesses as there were many contradictions in the statements. More so, alleged payment, being said to have been made in 6th and 7th instalments when there was period of Notebandi and it was not possible for any one to withdraw such huge amount. This itself shows falsity of the complainant. Witnesses of the complainant are his relatives and their statements are full of inconsistency. Complainant himself was a Principal Peon of the Bank, concerned, and as such he was fully aware of the functioning of the Bank, even then, this accusation is there. Hence, this Application, under [SECTION] of [ACT], before this Court for exercise of inherent power, with a prayer for setting aside impugned summoning order.
Learned AGA, representing [ENTITY], has vehemently opposed this Application.
From very perusal of the impugned summoning order, it is apparent that the same has been passed by the Magistrate on the basis of the statements recorded, under [SECTION] and [SECTION] of [ACT], in enquiry made by the Magistrate and in all those statements, there is corroboration of contention of complaint. There is nothing against those statements before the Magistrate and on the basis of those statements above impugned summoning order was passed. Factual correctness or incorrectness or appreciation of same cannot be made, under [SECTION], in exercise of inherent power by this Court because the 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 [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, there is no ground of any indulgence to be granted by this Court. Accordingly, this Application, under [SECTION] of [ACT] deserves dismissal, being devoid of merits, and it stands dismissed accordingly.
However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies 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. [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 applicant. However, in case, the applicant does not appear before the Court below, within the aforesaid period, coercive action shall be taken against them.
Order Date :- 18.11.2019 bgs/