HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application C-482 No. 809/2005 1.Ram Sumer S/o Sri Ram Kishan, 2.Om Pal, 3.Rajesh, 4.Rakesh, 5.Hemant, 2 to 5 sons of Ram Sumer, All R/o Sanjay Colony, Bazpur, P.S. Bazpur, Distt. U.S. Nagar. …Petitioners. Versus 1.State of Uttarakhand, 2.Prem Pal S/o Sri Roshan Lal, R/o Sanjay Colony, Bazpur, P.S. Bazpur, Distt. U.S. Nagar. …Respondents Shri Mohd. Azim, Advocate for the petitioners. Shri P.S. Bohra, Brief Holder for the State/respondent no.1. Shri Gopal Krishan, Advocate for respondent no.2. Dated: April 4, 2011 Hon’ble V.K. Bist, J. This petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), has been filed by the petitioners seeking quashing of the proceedings of criminal case no. 538 of 2005 ‘Prem Pal vs. Ram Sumer and others’ relating to offences punishable under Section 147, 323, 324, 452, 504 and 506 I.P.C. and the summoning order dated 22.06.2005 passed by Addl. Civil Judge (Jr. Div.)/Judicial Magistrate, Kashipur in said case, pending before him. 2. Brief facts, which emerge out from the record, are that respondent no. 2, Prem Pal, who lives at Mohalla Sanjay Colony, Bazpur, plies three-wheeler for his livelihood. It is alleged that the petitioner no. 1 is the 2 father of other petitioners. Prem Pal filed a complaint before the Trial Court on 10.06.2005 alleging therein that the petitioners, who are his neighbours, take grudge of him. Often they abuse and quarrel with him without any rhyme or reason. On 04.02.2005 also Ram Sumer, Rakesh and Shanti Devi abused and assaulted him, on being asked for fare of the Tempo. On the day of incident i.e. on 26.03.2005 at 1:00 p.m. the petitioners, alongwith, Rangam Singh, son-in-law of petitioner no.1 and Harish Agarwal, a friend of petitioner no.4, in furtherance of their common intention, came to his house and by abusing him they entered in his house and started beating him with their hands and fists and with LATHIES. The accused Rakesh had a knife in his hand and others were armed with LATHIES. Being instigated by Ram Sumer, Rakesh inflicted injuries on Prem Pal with a knife in his hand, which caused injury at the upper side of his left eye. On raising alarm, many people of the neighbour gathered at the place of occurrence and saved him. The accused persons, threatening to kill him, left the place of occurrence. This incident was witnessed by Bhagwan Das, Bhagwati Prasad and Smt. Phoolwati. The complainant got himself medically examined at Govt. Hospital, Bazpur and thereafter tried to lodge an F.I.R. in the police station but to no avail. Being constrained, the complainant had filed a complaint case against the petitioners. The complainant got himself examined under Section 200 Cr.P.C. and in support of his complainant, he examined C.W.1 Bhagwati Prasad and C.W.2 Bhagwan Das under Section 202 Cr.P.C. It appears that the Trial Court, having gone through the evidence on record, after satisfying with the material available on record, vide its order dated 22.06.2005, prima facie, took cognizance in the matter 3 and summoned the petitioners as well as two others, namely, Rangam Singh and Harish Agarwal for the offences punishable under Section 147, 323, 324, 452, 504 and 506 I.P.C. Being aggrieved by the order of Trial Court, the petitioners have filed the present petition. 3. A bare perusal of the record reveals that in respect of the same incident, happened on 26.02.2005 at about 1:00 p.m., Rakesh (petitioner no.4) also filed a complaint before the Trial Court against Prem, Kamal, Jai Prakash, Kailash and Roshan Lal with the allegations that on the day of incident, Prem Pal having iron rod, alongwith, his brothers Kamal having LATHI, Jai Praiash having LATHI, Kailash having iron rod and their father Roshan Lal having the handle of a spade, in furtherance of their common intention, entered in his house and they started abusing and beating him with their respective weapons causing injuries in his head and other parts of his body. On raising alarm, when her sister Kanchan came to rescue him, the accused persons also gave beating to her with their respective weapons. In the meanwhile, Ram Sumer (father of complainant), Hemant Kumar (brother of complainant) also came to rescue him but the accused persons also beaten them. Due to the injuries inflicted by the accused persons, Hemand Kumar got injuries in his head as well as on other parts on his body. On screams, the neighbours, namely, Jagdish, Rafaquat, Abdul Waheed and others reached there and thereafter the accused persons fled away, threatening to kill him. Rakesh and Hemant were medically examined in the Govt. Hospital, Bazpur on the same day. Due to serious injuries, Rakesh Kumar was referred to higher centre on 28.03.2005. He was taken to Dr. Susheela Tewari 4 Hospital, Haldwani wherefrom he was referred to higher centre. He was taken to Ram Manohar Lohia Hospital, New Delhi where he was admitted. On 26.03.2005, Ram Sumer tried to lodge a complaint at Police Station Bazpur against the accused persons but the police, in collusion with respondent no. 2, took no action in it. Thereafter, a complaint case was filed before the Trial Court against the accused persons, namely, Prem, Kamal, Jai Prakash, Kailash and Roshan Lal, which was registered as criminal case no. 439 of 2005. The Trial Court, having gone through the evidence on record and after being satisfied with the material available on record, took cognizance in the matter and, prima facie, found the offences punishable under Section 147, 323, 324, 325, 326, 452, 504 and 506 I.P.C. made out against the accused persons, namely, Prem, Kamal, Jai Prakash, Kailash, Roshan Lal and, accordingly, summoned them, vide order dated 21.05.2005. 4. I have heard Shri Mohd. Azim, the learned counsel for the petitioners, Shri P.S. Bohra, the learned Brief Holder for the State and Shri Gopal Krishna, the learned counsel for respondent no.2 and perused the entire material available on record. 5. Learned counsel for the petitioners submitted that on the date of incident, the petitioners did not go to the house of respondent no.2. Neither they entered in his house and nor they abused or beaten to respondent no.2. In fact, the respondent no.2, alongwith, his brothers and father, in furtherance with their common intention, have beaten the applicant nos. 4, 5 and their sister, with iron rod, LATHI and iron pipe, by entering in his house, hence 5 there appears no question on the part of petitioners to enter in the house of respondent no.2 and to beat him. Further, the medical report of respondent no.2 show that the injuries are simple and caused by blunt object, which itself illustrates that on seeing serious condition of petitioner no.4, the respondent no.2 got himself medically examined on 26.03.2005 by making self injuries, just to pressurize the petitioners. Thus, the impugned summoning order is against the law and the whole proceedings deserve to be quashed. 6. On the other hand, Shri Gopal Krishna, the learned counsel for the complainant/respondent no.2 has submitted that on the fateful day of the incident, Prem Pal received several injuries for which he was medically examined at Civil Hospital, Bazpur on 26.03.2005. He argued that truthfulness of the averments made by the petitioners require evidence and that can only be possible, if the case is tried by the trial Court. 7. Form the facts, as narrated above, the incident, which is said to have taken place on 26.03.2005 at 1:00 p.m., is admitted to both the parties. Perusal of injury report of Rakesh Kumar shows that he was medically examined at C.H.C., Bazpur on 26.03.2005 at 2:05 p.m. He received one lacerated wound, two contusions and one black mole over the middle of left cheek. Injury no. 1 was kept under observation, which was fresh and caused by blunt object. Rakesh Kumar was referred to higher centre. He got admitted at Dr. Shusheela Tewari Hospital, Haldwani thereafter, he was admitted at Dr. Ram Manohar Lohai Hospital, New Delhi on 30.03.2005. Other injured Hemant Kumar was 6 medically examined at C.H.C., Bazpur on 26.03.2005 at 1:55 p.m. He received one black mole over the lower right lateral side of the abdomen, two lacerated wounds and an abrasion. His injuries nos. 1 & 2 were kept under observation, which were fresh and caused by blunt object. On the other hand, respondent no.2, Prem Pal was also medically examined at C.H.C., Bazpur on 26.03.2005 at 1:45 p.m. and on examination, one black mole was found over the right side of his face. There were four injuries i.e. one abrasion, one lacerated wound, 4 linear abrasion and one contusion found in his body. Injury nos. 1, 2 and 3 were simple, which were fresh and caused by blunt object. The injuries reports annexed to the petition, although are still to be proved by examining the Doctor concerned, show that in the incident, occurred on 26.03.2005 at 1:00 p.m., persons from both the side received injuries either simple or grievous. The complainant cases, filed before the Court below, apparently show that so far happening of the incident on said date, time and place, is admitted to both the parties. Now a simple question arises to be determined as to which of the party got illegally entered in others’ house in furtherance with common intention to commit the crime as narrated above. This factual and disputed question cannot be resolved or appreciated in the jurisdiction vested under Section 482 of Cr.P.C. but it is the Trial Court to see, after recording evidence of the witnesses of the incident and by cross-examining the witnesses, as to which of the complaint has been filed in the counter blast of the other. The oral and documentary evidence produced by the complainant cannot be discarded at the threshold but the same requires to be proved, therefore issuing summons to the petitioners, for their trial, cannot be said to be an unlawful order. The 7 petitioners have ample opportunity before the Trial Court to defend themselves, by cross-examining the witnesses of the complainant as well as by producing their own defence. The incident is said to have been taken place in the year 2005, therefore, taking into account the admission of the parties in relation to happening of the incident, it will not be in the interest of justice to keep the proceedings pending or lingering on for such a considerable period. 8. The Hon’ble Supreme Court has repeatedly observed that inherent power conferred on the High Courts under Section 482 Cr.P.C. has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. Paragraphs 7, 8 and 13 of the judgment, reported in (2008) 1 SCC 474- Hamida vs. Rashid, in which scope of 482 petitions is discussed, are reproduced below:- “7. It is well-established principle that inherent power conferred on the High Courts under Section 482 CrPC has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 CrPC were examined in considerable detail in Madhu Limaye v. State of Maharashtra and it was held as under: (SCC p. 555, para 8) the following principles may be stated in relation to the exercise of the inherent power of the High Court: (1)that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2)that it should be exercised very sparingly to prevent abuse of process of any 8 court or otherwise to secure the ends of justice; (3)that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 8. In State v. Navjot Sandhu after a review of large number of earlier decisions, it was held as under: (SCC p. 657, para 29) “29…. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.” 13. Before parting with the case, we feel constrained to observe that in spite of repeated pronouncements of this Court that inherent power under Section 482 CrPC should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under Section 482 CrPC, the ultimate result whereof was that the order of bail granted in favour of the accused for an offence under Sections 324, 352 and 506 IPC enured to their benefit even after the offence had been converted into one under Section 304 IPC and also subsequently when charge had been framed against them under Section 302 read with section 34 IPC. 9 The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail under Section 304 or 302 IPC, yet they got the privilege of bail under the aforesaid offences by virtue of the order passed by the High Court. The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. 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 482 CrPC at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice.” 9. For the reasons as discussed above, this Court is not inclined to interfere with the trial of the case. Accordingly, the petition under Section 482 Cr.P.C. is dismissed with the observation that in case the petitioners surrender before the Court concerned, their bail applications shall be heard and disposed of expeditiously. Stay order dated 21.11.2005 stands vacated. It is observed that the Trial Court may not be influenced, in any manner, with the observations made by this Court in this judgment. Registry is directed to send copy of the judgment to the Court concerned. (V.K. Bist, J.) 04.04.2011 NCM: