C482/1268/2013 of Neeraj Verma Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL

C-482 Petition No. 222 of 2015

Anees Ahmad

......Petitioner

Versus

Mohd. Usman Ansari

….Respondent

Mr. Parikshit Saini, Advocate for the petitioner. Mr. Pradeep Kumar Chauhan, Advocate for the respondent.

JUDGMENT

Hon’ble Ravindra Maithani, J.(Oral)

In the instant case, challenge is the entire proceedings of Criminal Complaint Case No. 264 of 2014, Mohd. Usman Ansari vs. Nawab Ahmad and others, under Section 323, 504, 506 and 419 IPC, pending in the Court of 1[st] Additional Civil Judge (Junior Division)/ Judicial Magistrate, Haridwar, District Haridwar (for short “the case”).

2. Heard learned counsel for the petitioner through video conferencing.

3. Facts necessary to be disclosed for disposal of the petition briefly stated are as hereunder:

The petitioner filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 (“the Code”) against the petitioner and others for investigation. According to it, property of the respondent was wrongly sold by Nawab Ahmad to Rashida, on 3[rd] August, 2013. In that sale-deed, the petitioner was witness. On 15[th] August, 2013, when the respondent came to know about it, he questioned the petitioner and others, whereupon the respondent was abused and inside the house of the respondent, he was beaten. The application unde Section 156(3) of the Code was treated as complaint. The respondent himself was examined under Section 200

of the Code and two witnesses, namely, Anwar and Subham were examined in the inquiry under Section 202 of the Code. Thereafter, by an order dated 15[th] March, 2015, passed in the case, the petitioner and others have been summoned to face the trial under Sections 323, 504, 506 and 419 IPC.

4. Learned counsel for the petitioner would submit that prima facie no case is made out against the petitioner because Nawab Ahmad had valid power of attorney in his favour, by virtue of which, he sold the property to Rashida and the petitioner was simply witness in it. He did not impersonate anyone. Apart from it, it is argued that there is no injury report.

5. On behalf of the respondent, first objection was raised with regard to maintainability of the petition. It is argued that in view of judgment of this Court, passed in the year 2013, the petition under Section 482 of the Code is not maintainable. The order summoning may be challenged in Revision. On behalf of the respondent, learned counsel would also submit that the respondent has been examined under Section 200 of the Code. He confirmed the averments made in the application under Section 156(3) of the Code, which was treated as complaint and the statement of the respondent has been corroborated by the witnesses examined in inquiry under Section 202 of the Code. It is argued that the order summoning the petitioner and others is based on material, which needs no interference.

6. With regard to maintainability, the Court invited the attention of learned counsel for the respondent to the judgment in the case of Prabhu Chawla vs. State of Rajasthan and another, (2016) 16 SCC 30, in which, in paragraph 6, the Hon’ble Supreme Court, inter alia, held that there can be no total ban on the exercise of the jurisdiction under Section 482 of the Code. The Hon’ble Court held as hereunder:-

“In our considered view any attempt to explain the law further as regards the issue relating to inherent power of the High Court under Section 482 Cr.PC is unwarranted. We would simply reiterate that Section 482 begins with non obstante clause to state:

“482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J.

“abuse of the process of the court or other extraordinary situation excites the Court’s jurisdiction. The limitation is self-restraint, nothing more”. (Raj Kapoor case, SCC p.48, para10)”.

We venture to add further reason in support. Since Section 397 CrPC is attracted against all orders other than interlocutory, contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders. situation wholly unwarranted and undesirable.”

7. Learned counsel for the respondent submits that it is true

that in the case of Prabhu Chawla (supra) it has been held that such petition is maintainable, but, learned counsel would submit that since non-maintainability was held by this High Court, hence he referred it. If the law is settled by the Hon’ble Supreme Court, the authority of any High Court cannot supersede it.

8. The petition is maintainable.

9. Who was owner of the property, this court need not examine this issue in this petition. The question is summoning of the petitioner. Summoning is not routine exercise to be done by the Magistrate concerned. After all, it invites person to face the trial, which takes lot of resources in terms of time and human resource etc. In the case of Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, (1998) 5 SCC 749, the Hon’ble Supreme Court laid down the importance of summoning. In para 28 of it, the Hon’ble Supreme Court held as hereunder:-

“28. Summoning of an accused in criminal case is serious matter. Criminal law cannot be set into motion as matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He was to examine the nature of allegations made in the complaint and the

evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

10. To reiterate, it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. This is what is the crux of the law laid down by the Hon’ble Supreme Court in the case of Pepsi Food (supra). The Magistrate has to apply his mind; he has to examine the nature of evidence. He should not be silent spectator.

11. The genesis of the case, it is alleged that it is property dispute. The petitioner has been summoned under Section 419 of the Code. Section 419 IPC, prescribes punishment for cheating by personation. Whom has the petitioner personated; there is not single averment, either in the complaint or in the statement of the complainant. There is no averment about personation against the petitioner.

12. According to the respondent, on 15[th] August, 2013, when he came to know that his property was sold by Nawab Ahmad in favour of Rashida, he questioned them, and, thereafter he was beaten in his house. The question is- where did the respondent questioned the petitioner and others. Did he visit them? If so, the person Nawab Ahmad, according to the respondent, resides in the same locality i.e., Mohan Lal Mandi, Jwalapur, Police Station Kotwali Jwalapur, District Haridwar, where the respondent resides, but, the petitioner is resident of Mohalla Maidanian, Jwalapur. It is different Mohalla. The question is did the respondent visit the house of petitioner or any other person? Or what made the petitioner or any other person to enter in the house of the respondent. Although, at the stage of summoning, meticulous examination of evidence is not required, it should be

always avoided. But then, the Magistrate should not be silent spectator either.

13. This Court, during the course of arguments, also put certain questions to learned counsel for the respondent. Particularly, as to how, the petitioner and others visited the house of the respondent? Did he invite them? What was the occasion to visit the house of the respondent because according to the respondent, he had questioned the petitioner and others? Where did it happen? It is all much in doubt. There is not even single averment about personation. Therefore, this Court is of the view that no prima facie case is made out against the petitioner and the proceedings of the case qua the petitioner, deserves to be quashed. The petition should be allowed.

14. The petition is allowed. The proceeding of the case qua the petitioner is hereby quashed.

(Ravindra Maithani, J.) 22.09.2020

Kaushal