Court No. - 27 Case :- APPLICATION U/S 482 No. - 1201 of 2010 Petitioner :- Deepak Singh And Another Respondent :- State Of U.P. & Another Petitioner Counsel :- Shashi Shankar Tripathi,Manoj Kr. Singh Gautam Respondent Counsel :- Govt. Advocate Hon'ble Rajesh Chandra,J.
This petition under Section 482 Cr.P.C. has been filed with the prayer that the
proceedings of complaint case no.1500 of 09 ,Devesh Tiwari Vs. Deepak
Singh & another, under Sections 323,504 IPC, PS Kotwali Dehat, District
Mirzapur, pending in the court of Addl.CJM, Court no.1, Mirzapur as well as
summoning order dated 13.8.2009 passed in the aforesaid case may be
quashed.
As an interim measure, it has been prayed that the proceedings of the said
case may be stayed til the disposal of the present application.
The contention of the learned counsel for the applicants is that Deepak Singh
had lodged the FIR against the opposite party no.2 Devesh Tiwari and one
Kuldeep Misra, which was registered as a non cognizabe offence under
Sections 323,504, 506IPC. In that case investigation took place and the charge
sheet was filed against Kuldeep Misra and Devesh Tewari on 27.1.09.
His further contention is that after the filing of the charge sheet, Devesh
Tewari filed a complaint case against the applicants and in that complaint, it
was mentioned that on 17.7.08, Devesh Tewari, his cousin Ashish Tewari and
Kuldeep Misra were abused by the accused Deepak Singh and Manoj and the
complainant Devesh Tewari was also beaten. In that complaint case after
recording the statements under Sections 200 and 202 Cr.P.C., the Magistrate
summoned the applicants for the offence under Sections 323,504 IPC. His
contention is that after filing of the charge sheet against the complainant
Devesh Tewari, he filed his complaint as a counter blast.
He further pointed out that the present complaint was filed about one year
after the incident, hence the proceedings of the complaint case may be
quashed.
I considered over the argument and I feel that it does not contain any water.
The incident in both the cases has been shown as that of 17.7.08 – in one case
the charge sheet has been filed and in other case the accused applicants have
been summoned on the complaint. The cases may be decided by the court
simultaneously as these are the cross cases. At present it cannot be said that
there is no evidence against the applicants.The applicants have been
summoned after recording the evidence under Sections 200 and 202 Cr.P.C.
and as such prima facie there is no illegality or impropriety in the order of the
trial court.
In the case of S.W. Palanitkar and others, Vs. State of Bihar and another, 2002
(44) ACC 168 (S.C.) the Hon’ble Apex Court has held that at the stage of
passing order under Section 203 Cr.PC. searching sufficient ground to convict
is not necessary.
The Hon’ble Apex Court has considered the matter of exercising inherent
power for quashing the F.I.R. or complaint in State of A.P. Vs. Bajjoori
Kanthaiah and another AIR 2009 S.C. 671. The following observations made
in para 7 of the report at page 673 are worth mentioning:-
” When exercising jurisdiction under Section 482 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 appreciation of it
accusation would not be sustained. That is the function of the Trial Judge.
Judicial process no doubt should not be an instrument or oppression, or,
needless harassment. Court should be circumspect and judicious in exercising
discretion and should take all relevant facts and circumstances into
considering before issuing process, lest it would be an instrument in the hand
of a private complainant to unleash vendetta to harass any person needlessly.
At the same time the section is not an instrument handed over to an accused to
short-circuit a prosecution and bring about its sudden death.”
The following observations made by the Hon’ble Apex Court in State of
A.P.V Bajjoori Kanthaiah( supra) in para 8 are also worth mentioning:-
” It would not be proper for the High Court to analyse the case of the
complainant in the light of all probabilities in order to determine whether a
conviction would be sustained and on such premises, arrive at a conclusion
that the proceedings are to be quashed. It would be erroneous to assess the
material before it and conclude that the complaint cannot be proceeded with.
In proceedings instituted on complaint, exercise of the inherent power to
quash the proceedings is called for only in a case where the complaint does
not disclose any offence or is frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not constitute the offence of which
cognizance has been taken by the Magistrate, it is open to the High Court to
quash the same in exercise of the inherent power under Section 482 of the
Code. It is not, however, necessary that there should be meticulous analysis of
the case before the trial to find out whether the case would end in conviction
or acquittal. The complaint/FIR has to be read as a whole, if it appears that on
consideration of the the allegations in the light of statement made on oath of
the complainant are disclosed in the FIR that ingredients of offence or
offences are disclosed and there is no material to show that the complaint/FIR
is mala fides, frivolous or vexatious, in that event there would be no
justification for interference by the High Court. When an information is
lodged at the police station and an offence is registered, then the mala fides of
the informant would be of secondary importance. It is the material collected
during the investigation and evidence led in Court which decides the fate of
the accused persons. The allegation of mala fides against the informant are of
no consequence and cannot by itself be the basis of quashing the proceeding.”
In view of the above, no ground is made out for the quashment of the
proceedings of the complaint case.
The application is therefore rejected.
Order Date :- 1.2.2010
SM