C482/1386/2016 of Sanjay Maliah Vs Smt. Sujata Paul Maliah

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL -Crl. Misc. Application (C482) No. 1386 of 2016

Sanjay Maliah

...………….

Applicant

Versus

Smt. Sujata Pal Maliah

...…………. Respondent

Mr. L.K. Tiwari, Advocate for the applicant. Mr. Lokendra Dobhal, Advocate for the complainant / 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.

The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to set aside the impugned order dated 04.08.2015, passed by Judicial Magistrate I, Dehradun, in complaint case no. 1095 of 2014, Sujata Paul Maliah Vs Sanjay Maliah, under Section 354 IPC.

2) Brief facts of the case are that an FIR was lodged by the complainant against the applicant, at P.S. Rajpur, Dehradun, which was registered as FIR no. 77 of 2009, under Section 354 of IPC. After investigation final report was submitted against the applicant. Final report was protested by the complainant and learned Magistrate treating the petition as complaint recorded the statement of complainant as well as her witness Sanjeev Maliah under Section 200 and 202 of Cr.P.C. and summoned the applicant to face trial. Thereafter, evidence of complainant was recorded under Section 244 Cr.P.C.

and the case was listed for argument on charge. Learned Magistrate after hearing the parties vide impugned order dated 04.08.2015 ordered to frame charge under Section 354 IPC against the applicant. Feeling aggrieved, the applicant preferred present application under Section 482 of Cr.P.C.

3) Learned counsel for the applicant would submit that from bare perusal of FIR and complaint no ingredient of offence punishable under Section 354 IPC is made out against the applicant. He would further submit that there is no material available on record which shows ever remotely that modesty of woman was outraged by the applicant. It is contended that property dispute is going on between the parties in which the entire family of the applicant has been roped in.

4) Per contra, learned counsel for the respondent would submit that from bare perusal of the FIR, statements recorded under Section 200 and 202 Cr.P.C. and evidence adduced in support thereof, clearly makes out case of commission of offence punishable under Section 354 IPC against the applicant.

5)Having heard learned counsel for the parties this Court is of the view that it cannot usurp the functions of trial court to delve into and decide upon the respective merits of the case at the stage of framing of charge. It is for the trial court to evaluate the material and documents on record with view to finding out if the facts emerging therefrom, taken at

their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is ground for presuming that the offence has been committed and not ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.

6) 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.

7) Their Lordships of Hon’ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor[1] observed 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.”

8) It is settled law that the factual controversy 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.

9) In view of the above, in exercise of jurisdiction under Section 482 of Cr.P.C., this Court does not find any ground to interfere in quashing the impugned order dated 04.08.2015, passed by Judicial Magistrate I, Dehradun, in criminal complaint case no. 1095 of 2014, Sujata Pal Maliah Vs Sanjay Maliah, pending against the applicant under Section 354 of IPC.

10) The present Criminal Miscellaneous Application under Section 482 of Cr.P.C. is devoid of merit and is accordingly dismissed.

11) Interim order dated 07.10.2016 passed by this Court stands vacated.

12) The criminal complaint case is of the year 2014 in which proceeding are stayed. Court concerned be informed accordingly.

(Lok Pal Singh, J.)