Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482 Cr.P.C.) No. 775 of 2005 Afsar Ali & others .….……Applicants. versus State of Uttaranchal & another ………. Opp. Parties Mr. S.K.Mandal, Advocate, for the petitioners. Mr. Prabhakar Joshi, Brief Holder, for the State / respondent. Mr. Vinod Sharma, Advocate, for the complainant/ O.P. no.2. JUDGMENT Per : U.C. Dhyani, J. 1. This petition under Section 482 Cr. P.C. has been filed with the prayer to quash the summoning order dated 22.08.2005 passed by Additional Judicial Magistrate, Rudrapur in criminal case no. 387 of 2005 Mohd. Hanif vs Afsar Ali & others, under Sections 147, 148, 149, 452, 324, 504 & 506 IPC, P.S. Gadarpur, district Udham Singh Nagar. 2. Brief facts giving rise to this case are that the daughter of the applicant no. 1 was married to son of opposite party no. 2 in the month of December, 2004. Respondent no. 2 was not satisfied with the articles given at the time of marriage and he demanded dowry from the applicant no. 1. Due to non-fulfillment of demand of dowry the opposite party no. 2 assaulted the daughter of applicant no. 1 and turned her out from her matrimonial house on 22.12.2004. Thereafter, panchayat was called but the respondent no. 2 and his family members never agreed to keep and maintain the daughter of applicant no. 1. On 31.01.2005 the daughter of the applicant no. 1 filed a complaint case no. 400 of 2005 Smt. Firdos 2 vs. Mohd Ali before the Chief Judicial Magistrate, Rampur. On 22.03.2005 after recording the statement of the complainant and the witnesses the court issued summoning order and directed them to appear on 04.05.2005 to face the trial under Section 498A IPC and Section ¾ Dowry Prohibition Act. The daughter of the applicant no. 1 filed a misc. case no. 356 of 2005 before the Additional C.J.M, Rampur which was registered as Smt. Firdos vs. Mohd. Ali under Section 125 Cr.P.C for maintenance. The said application was allowed on 13.06.2005. The opposite party no. 2 has got malice against the applicants who decided to harass the family members/relatives and lodged a false complaint case before the Additional Chief Judicial Magistrate, Udham Singh Nagar being criminal case no. 387 of 2005 Mohd. Hanif vs. Afsar Ali whereby opposite party no. 2 has falsely implicated the father and brother of Smt. Firdos and their relatives. There is no independent witness to support the prosecution case and only the statements under sections 200 & 202 Cr.P.C. of the interested witnesses have been recorded. The said complaint has been filed only for the purpose of harassing the applicants. The ‘Talak’ has taken place between the husband and wife. Learned Additional Chief Judicial Magistrate, Udham Singh Nagar has passed the summoning order on 22.08.2005 and directed the applicants to appear before the court to face the trial. There is no prima-facie case against the applicants. 3. Learned counsel for the applicants contended that since no prima-facie case is made out against the applicants, this court should interfere under section 482 Cr.P.C. The opposite party no. 2 has lodged the case as counter-blast case no. 356 of 2005 Smt Firdos vs. Mohd. Ali and also against the maintenance case. There is no specific allegation against the applicants and the applicants have no motive to assault the opposite party no. 2. The allegations 3 in the complaint are totally false and frivolous. The same has been filed only with the intention to harass the applicants. No prima- facie case for the said offences is made out against the applicants. Learned magistrate has passed the summoning order without application of mind. The complaint against them have been filed only to save themselves from proceedings initiated under section 498A IPC read with section ¾ Dowry Prohibition Act and to pressurize them to withdraw those cases. 4. Learned counsel for the applicants has relied upon the rulings of Union of India vs. Prakash P. Hinduja and others, 2003 SCC (Crl.) 1314 to show that power can be exercised by the High Court to quash the criminal proceedings. He has also drawn the attention of the court towards Mahendra and Mahendra vs. Rajiv Dua, 2009 (1) SCC 706 which relied upon State of Haryana vs. Bhajan Lal 1992 SCC (Crl.) 426 reiterating that where a criminal proceeding is manifestly attended with malafide or where the proceeding are maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge, such proceedings can be quashed. 5. Learned Brief Holder for the State on the other hand, has strongly objected to the move of the applicants and suggested that aforesaid rulings do not help the applicants in any way. It cannot be said at this stage that there is no chance of conviction of the applicants. The role may be assigned to only one person and the others being relatives, is no ground to interfere under Section 482 Cr.P.C. He has submitted that the enmity or bitter relation is a double edged weapon. Both the contingencies are possible. If any person can be falsely implicated, there is a also possibility that the other party may browbeat, harass, pressurize and use criminal 4 force on the first party. Both the situations are possible which can only be looked into by the learned trial court. 6. Hon’ble Apex Court in the case of M/S Pepsi Food Ltd. Vs. Special Judicial Magistrate J.T. 1997 (8) SC 705 has held as follows : “Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima-facie committed by all or any of the accused.” 7. From perusal of the material on record and looking into the facts of the case, it cannot be said at this stage that no offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P.Kapoor vs. State of Punjab, AIR 1960 SC 866; State of Haryana vs. Bhajan Lal, 1992 SCC (Crl) 426; State of Bihar vs. P.P.Sharma, 1992 SCC 5 (Crl) 192 and Zandu Pharmaceutical Works Ltd. vs. Mohd. Saraful Haqe and another, 2005 SCC (Crl.) 283 (para10). 8. Section 482 Cr.P.C. saves the inherent powers of High Court in three circumstances. Firstly, where the jurisdiction is invoked to give an effect to order of court. Secondly, if there is an abuse of process of the court and thirdly, in order to secure ends of justice. Inherent power can be exercised only for either of the three purposes. It cannot be invoked in respect of any matter covered by the specific provision of the court. It can not be invoked if its exercise would be inconsistent with any specific provision of the Code. New categories of inherent jurisdiction should not be invented. Apart from the above three categories, even where the courts below have committed any error of law or fact that by itself does not furnish any foundation for interference under Section 482. The High Court possesses the inherent power to be exercised ‘ex debito justitiae’ to do the real and substantial justice but such power does not confer any arbitrary jurisdiction on the High Court to act according to its whims or caprice. The power under section 482 is distinct from appellate or revisional jurisdiction. Inherent jurisdiction is to be exercised sparingly and with circumspection. The court should not embark upon the inquiry whether the allegations in the complaint would be established by the evidence or not. This Court (u/s 482 Cr.P.C.) cannot function as a court of trial and it is for the magistrate, seized of the case, to decide whether any prima facie case for summoning the accused is made out. This Court while exercising an inherent jurisdiction should not usurp the jurisdiction of the trial court. In matters where some relief can be given by the subordinate court normally higher authority should not exercise its power to give the same relief. 9. The applicants have got an opportunity to argue over their right of discharge through a proper application for the said purpose and 6 they are free to take all the submissions in the said discharge application before the trial court. The accused/applicants will have further opportunity to place their case during the trial and make their submissions before the learned trial court when the arguments take place. 10. The last submission of the learned counsel for the accused/applicants is that the applicants have been arraigned only to harass in counterblast case and therefore, suitable and appropriate directions may be issued so that the accused/applicants may not be harassed. Considering the nature of offences complained of against the accused/applicants, this prayer appears to be innocuous. 11. The prayer for quashing the proceedings is thus refused. The Criminal Misc. Application is dismissed with a direction that the applicants should surrender before the learned trial court within a month from today and if they seek bail, the same may be considered without unreasonable delay and if possible, on the same day after hearing the prosecution. (U.C. Dhyani, J.) Dt: September 23,2011 KKS 7