C482/1120/2011 of KHAIM SINGH ADHIKARI Vs NANHE KHAN and ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

-Criminal Misc. Application (C482) No. 1120 of 2011

……. Khaim Singh Adhikari Applicant

versus

Nanhe Khan and another ……. Respondents

Mr. Siddhartha Sah, Advocate for the applicant. Mr. Mohd. Umar, Advocate for respondent no. 1. Mr. P.S. Saun, AGA with Mr. S.S. Adhikari, Brief Holder for the State / respondent no. 2.

U.C. Dhyani, J. (oral)

By way of present application / petition, moved under Section 482 of Cr.P.C., the applicant seeks to quash the summoning order dated 29.11.2010, passed by Judicial Magistrate, Kashipur, District Udham Singh Nagar, in criminal case no. 3322 of 2010, Nanhe Khan vs Khaim Singh Adhikari, under Sections 452, 323, 504, 506 of IPC, as also the revisional order dated 03.08.2011, passed by Sessions Judge, Udham Singh Nagar, in criminal revision no. 97 of 2011, Khaim Singh Adhikari vs Nanhe Khan and another.

2) Complainant-respondent no. 1 filed criminal complaint case against the accused-applicant in the court of Judicial Magistrate, Kashipur. After recording statement of the complainant Nanhe Khan under Section 200 Cr.P.C. and statements of Noor Mohd. and Tohid Ali under Section 202 of Cr.P.C., accused-applicant Khaim Singh Adhikari was summoned to face the trial for the offences punishable under Sections 452, 323, 504, 506 of IPC, by learned

Judicial Magistrate, Kashipur, vide impugned order dated 29.11.2010, after having found prima facie case against the applicant on the basis of such statements. Aggrieved against the same, present application under Section 482 of Cr.P.C. was moved by the accused-applicant.

3) As per complaint filed by respondent no. 1, his son was murdered by some people of Rajpur, ten years ago, in respect of which he lodged report at police station Jaspur on 05.06.2007. The names of Nazim and Aftab, as accused, came to the fore. Nazim and Aftab presented certain papers before the Juvenile Justice Board, Udham Singh Nagar. They were granted bail. Nanhe Khan (respondent no. 1 herein) preferred an appeal, which was allowed. The Juvenile Justice Board, after hearing both the sides, declared Nazim and Aftab to be adult. The accused persons preferred appeal in the court of Sessions Judge, Udham Singh Nagar against the said order. Learned Addl. Sessions Judge dismissed the appeal. Respondent no. 1 moved an application for cancellation of bail of the accused persons. The bail of both the accused was cancelled. Non-bailable warrants were issued against Nazim and Aftab. Respondent no. 1 went to the police station, Nadehi for doing the pairvi for execution of warrants against Nazim and Aftab.

4) On 18.10.2010, at 12:00 P.M., respondent no. 1 Nanhe Khan met Khaim Singh Adhikari (applicant herein), Station Officer of police station, Nadehi, who told respondent no. 1 to apprise him whenever he received any

information regarding the whereabouts of the accused persons, namely, Nazim and Aftab. The Station Officer also gave his mobile number to Nanhe Khan.

5) Nanhe Khan apprised the Station Officer on 18.10.2010, at 07:00 P.M., that accused Nazim was present at his house. Nanhe Khan requested the Station Officer to come immediately and arrest Nazim. Station Officer came to the village of respondent no. 1, at 10:00 P.M., alongwith two constables. In spite of arresting Nazim, he came to the house of Nanhe Khan and knocked his door. Before that, Station Officer met Nazim’s father Rafique Ahmad. When Station Officer knocked the door of Nanhe Khan, he came out. Station Officer hurled abuses at Nanhe Khan, trespassed into his house, assaulted him and threatened him to kill, if he again bothered him.

6) Whereas learned counsel for the applicant submitted that no offence against the accused-applicant is made out, learned counsel for respondent no. 1 contended that, prima facie, offences under Sections 452, 323, 504, 506 of IPC are made out against the accused-applicant.

7) It is an undisputed fact, according to the contents of the complaint itself, that Station Officer-applicant came to the village of respondent no. 1 at his instance and invitation. It was respondent no. 1, who invited the applicant to his village to arrest Nazim. The applicant went to the house of Nazim and met his father. After meeting Nazim’s father, applicant came to the house

of respondent no. 1, knocked his door and entered into his house (for conversation). In such circumstances, how can it be said that the applicant trespassed into the house of respondent no. 1? The applicant did not enter into the house of respondent no. 1 as trespasser, for he entered into the house of respondent no. 1 in connection with the interrogation of the case, which was registered against Nazim. The ingredient of the offence punishable under Section 452 of IPC was, therefore, not made out against the applicant. It could not be said that the Station Officer committed house trespass. In other words, even if the contents of complaint be taken to be true, no offence punishable under Section 452 of IPC was made out against the applicant.

8) It was also alleged by respondent no. 1 that the applicant hurled abuses at him. The details of such abuses were not disclosed. Further, criminal intimidation cannot be presumed by merely alleging that the Station Officer threatened respondent no. 1 with dire consequences. The ingredients of Section 503 of IPC were not made out. In this way the ingredients of Sections 503 of IPC, as also, Section 504 of IPC were not made out, even if the complaint is taken to be true on its face value.

9) Although there was sentence in the complaint that Station Officer assaulted respondent no. 1 with kicks and fists, but, admittedly no injury was sustained by respondent no. 1. He was not medically examined either. Normally, this Court would not have interfered in

summoning of the accused-applicant in respect of offence punishable under Section 323 of IPC, but, the situation in the instant case is different, for the reason that the complaint itself smacks of vindictiveness, in as much as accused Nazim was not arrested by the Station Officer on the request of respondent no. 1. Obliquely, the grievance of respondent no. 1 was as to why Nazim was not arrested? Had Nazim been arrested by the applicant-Station Officer, respondent no. 1 would have no grudge against him, even if he would have been beaten by the Station Officer, but having not arrested Nazim, present complaint was filed by respondent no. 1 against the Station Officer. The same appears to be abuse of process of the Court.

10) Inherent jurisdiction under Section 482 of Cr.P.C. 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. The case of the present applicant is one such case in which such inherent jurisdiction should be exercised.

11) Learned counsel for the applicant also contended that prior sanction of the Government was required to prosecute the Station Officer (applicant) in the instant case. Learned counsel for the applicant submitted various rulings in this behalf, including the rulings of Sankaran Moitra vs Sadhna Das and another, (2006) 2 SCC (Cri) 358 and State of Orissa vs Ganesh Chandra Jew, (2004) 8 SCC 40.

12) Extracts of copies of the General Diary were also filed to indicate that the applicant did the same in discharge of his official duty.

13) Since this Court has come to the conclusion that, prima facie, no offences were made out against the accused-applicant, therefore, the discussion on the applicability or otherwise of Section 197 of Cr.P.C. is not found necessary and is, therefore, not being considered.

14) As consequence thereof, application under Section 482 of Cr.P.C. is allowed. Summoning order dated 29.11.2010, passed by Judicial Magistrate, Kashipur, District Udham Singh Nagar, in criminal case no. 3322 of 2010, Nanhe Khan vs Khaim Singh Adhikari, under Sections 452, 323, 504, 506 of IPC, as also the Revisional Courts’ order dated 03.08.2011, passed by Sessions Judge, Udham Singh Nagar, in criminal revision no. 97 of 2011, Khaim Singh Adhikari vs Nanhe Khan and another are hereby quashed.

(U.C. Dhyani, J.)

Dt. October 31, 2013. Negi