HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- APPLICATION U/S 482 No. - 41381 of 2019 Applicant :- [ENTITY] And 2 Ors Opposite Party :- State of U.P. and Another 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 two others, with a prayer for setting aside entire criminal proceeding, including, summoning order, dated 21.8.2019, passed by the Special Judge (DAA), Etawah, in [CASE NUMBER], under [SECTION] of [ACT].
Learned counsel for applicants argued that the wife of Opposite party no.2 was deserted by him and was living with the applicant no.1, [ENTITY], wherefor, Opposite party no.2, alongwith others, came to the house of [ENTITY] and did assault for which a criminal case was got registered, which is still pending and in counter-blast, under malicious prosecution, this false and concocted case has been got lodged. Hence, for avoiding abuse of process of law and for securing ends of justice, this Application, under [SECTION] of [ACT], has been filed, with above prayer.
Learned AGA, representing State of U.P., has vehemently opposed this Application.
Offence, for which applicants have been summoned, is of robbery, punishable, under [SECTION] of [ACT] and this occurrence was said by the complainant in his complaint with an specific accusation regarding enmity in between, wherein, a case was said to have been pending for enticing wife of complainant by applicant no.1, [ENTITY]. Occurrence, reported, is alleged to be of 17.3.2019, at about 5.00 PM, which was committed by the applicants, while, complainant was on his way and this robbery was said to have been committed by accused persons, applicants, herein, wherein, Rs.1350/-, with Mobile Phone, was snatched. Complainant filed this complainant, wherein, he was examined, under [SECTION] of [ACT], whereas, his witness, [ENTITY], was examined, under [SECTION] of [ACT] and on the basis of those evidences, collected in the enquiry by the Magistrate, impugned summoning order, for offence, punishable, under [SECTION] of [ACT], came to be passed.
At the time of passing of summoning order, under [SECTION] of [ACT], Magistrate has to see as to whether, a prima facie case exists for proceeding further and summoning, i.e., at that stage, meticulous analysis of evidence is not to be made and in present case, order, impugned, was passed, in accordance with the evidences collected in the enquiry on record.
Hence, under all above facts and circumstances, 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.
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, 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 [PRECEDENT] as well as judgement passed by Hon'ble Apex Court reported in [PRECEDENT] 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 :- 18.12.2019 bgs/