C482/249/2014 of Sanjay Maliah Vs Smt. Sujata Pal Maliah

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

-Crl. Misc. Application (C482) No. 249 of 2014

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. (2015) 3 SCC 424, Sonu Gupta vs. Deepak Gupta and others 2. (2013) 3 SCC 330, Rajiv Thapar vs Madan Lal Kapoor3. (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 quash the order dated 05.02.2014, as also the entire proceedings of criminal complaint case no. 4487 of 2011, Sujata Pal vs. Ballabh Das & others, under Sections 323, 354, 379, 405, 504, 506 of IPC, pending in the court of Judicial Magistrate I, Dehradun.

2) Brief facts of the case are that an FIR was lodged by the complainant against the accused persons, including the applicant, at P.S. Rajpur, Dehradun under Sections 323, 354, 379, 405, 504, 506 of IPC. The report was registered after the intervention of Court. 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 vide impugned order dated 27.04.2013 to face the trial in respect of selfsame offences. Feeling aggrieved, the applicant preferred criminal revision before the Sessions Judge, Dehradun. Learned Sessions Judge having heard learned counsel for the accused / applicant, learned D.G.C. (Crl) for the State and on perusal of the record held that the trial court did not commit any error of fact and law in exercise of its jurisdiction and dismissed the criminal revision vide judgment and order dated 05.02.2014. Hence, present criminal misc. application.

3) Learned counsel for the petitioner would submit that the on the same incident, FIR based on different cause of action, has been lodged earlier by the complainant. He would also submit that the applicant cannot be summoned or punished twice for the same offence. It is contended that the Magistrate committed grave error of law by summoning the petitioner in the case without there being any evidence against him. It is also contended that summoning the applicant is nothing but an abuse of process of law on the part of the court concerned.

4) Per contra, learned counsel for the respondent would submit that there are two incidents where the applicant committed the offence punishable under Section 354 IPC against the complainant. He would also submit that from bare perusal of the statements recorded under Section 200 and 202

Cr.P.C. it is clearly evident that there is sufficient material to summon the accused / applicant.

5) Perusal of the documents brought on record would reveal that though the summoning order dated 27.04.2013 passed by the trial court was challenged before the revisional court, the revisional court dismissed the criminal revision and directed the applicant to appear before the trial court for recording his evidence as the matter can only be decided after recording evidence of both the parties during trial. Neither the applicant has challenged the impugned summoning order dated 27.04.2013 nor has annexed the copy of the same.

6) Counter affidavit has been filed by the respondent. The averments made in the counter affidavit remained unrebutted as no rejoinder affidavit was filed by the applicant.

7) Hon’ble Apex Court in the case of Sonu Gupta vs. Deepak Gupta and others[1], has held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs are quoted hereunder:-

“7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accused persons before the courts below or in this Court lest it prejudices one or the other party in future.

8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance

which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not.”

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

Ramesh Chander and another[3]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.

9) The Hon’ble Apex Court in the case of Rajiv Thapar and others vs. Madan Lal Kapoor[2] 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.”

10) 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., this Court does not find any ground to interfere in quashing the proceedings of criminal complaint case no. 4487 of 2011, pending against the applicant under Sections 323, 354, 379, 405, 504, 506 of IPC,

as also order dated 05.02.2014 passed by the revisional court.

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

12) Interim order dated 24.03.2014 passed by this Court stands vacated.

13) The criminal complaint case is of the year 2011 in which proceeding are stayed. Court concerned be informed accordingly.

(Lok Pal Singh, J.)

Dt. August 02, 2019. Negi