C482/1870/2018 of SANJIV MALIAH Vs STATE OF UTTARAKHAND THROUGH SECRETARY HOME DEHRADUN

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

-Crl. Misc. Application (C482) No. 1870 of 2018

Sanjiv Maliah & another

...…………. Applicants

Versus

State of Uttarakhand & another ...…………. Respondents

Mr. Ramji Srivastava, Advocate for the applicants.

Mr. Sandeep Tandon, Deputy Advocate General and Ms. Shivangi Gangwar, Brief Holder for the State. Mr. L.K. Tiwari, Advocate for the private respondent.

List of cases referred:

1. (2013) 3 SCC 330, Rajiv Thapar vs Madan Lal Kapoor2. (2013) 1 SCC (Cri) 986, Amit Kapoor vs Ramesh Chander.

Hon’ble Lok Pal Singh, J.

By means of instant criminal Misc. application filed under Section 482 Cr.P.C., the applicants seek to quash the judgment and order dated 22.09.2018, passed by I Addl. Sessions Judge, Dehradun in Criminal revision no. 153 of 2017, Sanjeev Maliah and another Vs State of Uttarakhand and another, as well as the order dated 12.09.2014 and order dated 28.06.2017, passed by Judicial Magistrate I, Dehradun in criminal complaint case no. 1062 of 2013, Sidheshwar Prasad Vs Sanjiv Maliah, rejecting the discharge application of the applicants and directing the applicants to present on 24.07.2017 for framing charge under Section 323, 352, 506 IPC.

2) Facts, leading to filing of present C-482 petition, is that property bearing no. 175/2/279, situated at Rajpur Road, Dehradun is the joint property purchased jointly by Pushpendra Nath

Maliah, Ballabh Das Maliah and late Premendra Nath Maliah. Late Premendra Nath Maliah was father of applicant no. 1 and Pushpendra Nath Maliah and Ballabh Das Maliah are uncles of applicant no. 1. Late Premendra Nath during his life time executed perpetual lease deed of his 1/3 share in the said property in favour of applicant no. 1. The paternal uncles of applicant no. 1 and their family members had an evil eye on the said 1/3 share leased out to applicant no. 1 and they made every attempt to grab the said share and tried to evict the applicants, who are living in the said property and were in possession of five rooms, kitchen, common drawing room, common open land etc. Uncles of applicant no. 1 and their family members started creating nuisance / mischief, criminally intimidating, insulting and annoying the applicants. Not only this the uncles of applicant no. 1 and their family members through Jitender Prasad, Sidheshwar Prasad (respondent no. 2 herein) and Mohan Prasad started making mischief and causing unnecessary harassment to the applicants. In such circumstances, applicant no. 1 was constrained to file civil suit bearing O.S. no. 265 of 2010, Sanjiv Mahiah Vs Jitender Prasad and others, and succeeded in obtaining permanent injunction against the defendants restraining them permanently from interfering in peaceful possession of the applicants’ in the property aforesaid from the court of Civil Judge (J.D.), Dehradun. Despite this, the uncles, their family members and associates have not stopped harassing the applicants and even filed false and frivolous cases against the applicants, concealing the true and correct facts of the case.Similarly, on 11.08.2010, Pushpendra Nath Maliah filed an application u/s 156(3) Cr.P.C. being Misc. Case no. 337 of 2010, Pushpendra Nath Maliah Vs Sanjiv Maliah & another, against the applicants regarding the same date and time of incident as is mentioned in the present case, in the court of CJM, Dehradun, which was dismissed on 28.08.2010. Having failed in his attempt, Pushpendra Nath Maliah again got filed the present complaint against the applicants through O.P. no. 2 in respect of same incident. The aforesaid application under Section 156(3) filed by O.P. no. 2 was treated as complaint case which was registered as criminal case no. 921 of 2012, Siddheshwar Prasad Vs Sanjeev Maliah and another (later re-numbered as 1062 of 2013). After recording the statement of the complainant, who examined himself as witness, learned Magistrate summoned the accused / applicants to face the trial in respect of offences punishable under Sections 323, 352 and 506 of IPC.

3) Feeling aggrieved, applicants filed an application seeking discharge under Section 245(2) Cr.P.C. Having heard learned counsel for the parties and after perusal of material brought on record, learned trial court vide order dated 12.09.2014 rejected the application of the applicants and fixed the matter for evidence. Thereafter, on 09.01.2017, respondent no. 2 was examined as PW1 under Section 244 Cr.P.C. On 28.06.2017 when the matter was fixed for framing of charge, the court below rejected the prayer of discharge and directed the applicants to remain present on 24.07.2017 for framing of charges

against them under Section 323, 352, 506 IPC. Against the order dated 28.06.2017 passed by learned Magistrate, applicants preferred criminal revision no. 153 of 2017, Sanjeev Maliah and another Vs State and another, before the I Addl. Sessions Judge, Dehradun. Revisional Court dismissed the criminal revision vide judgment and order dated 22.09.2018 holding that prima facie case is made out against the applicants from the averments of the complaint and the evidence adduced by the complainant and there is sufficient reason to frame charges against the applicants. Hence, present criminal misc. application.

4) Having heard learned counsel for the parties and after perusal of the material available on record, this Court is convinced that from the averments made in the complaint and the evidence adduced by the complainant, prima facie, case is made out against the applicants. The order dated 28.06.2017 passed by the learned trial court is an interlocutory order and no prejudice has been caused to the applicants as the trial court only has to frame charges in the matter. It is not case to discharge the applicants at this stage.

5) Hon’ble Apex Court in Amit Kapoor vs.

Ramesh Chander and another[2]has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations, as made from the record of the case and the documents submitted therewith, prima facie establish the offence or not. If the

allegations are so patently absurd and inherently improbable that no prudent person can ever reach such conclusion and where the basic ingredients of criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.

6) The Hon’ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor[1] has held as under:-

“28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make just and rightful choice. This is not stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/ complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/ complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in position to succeed, by establishing his defences by

producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.”

7) It is settled law that the factual pleas need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself.

8) In view of the ratio laid down by the Hon’ble Supreme Court in the judgments (supra), in exercise of jurisdiction under Section 482 of Cr.P.C., I do not find any ground to interfere in quashing the orders impugned.

9) The present Criminal Miscellaneous Application under Section 482 of Cr.P.C. is devoid of merit and is accordingly dismissed. Interim order, if any, stands vacated.

(Lok Pal Singh, J.)

Dt. August 02, 2019. Negi