Saleem Khan And Others vs State Of Uttar Pradesh And Another

Ram Krishna Gautam, J

This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants,Saleem Khan, Alim Khan, Rizvan Khan, Kamer Khan and Mazhar Alam, with a prayer for quashing of the complaint and the impugned summoning order, dated 4.9.2019, passed by Civil Judge (Junior Division)/ Judicial Magistrate, Hasanpur, District Amroha, in Complaint Case No. 456 of 2019, under Sections-354A, 323 and 506 of IPC, Police Station-Hasanpur, Distric-Amroha.

Learned counsel for applicants argued that the applicants had given their house for residence, for a limited period to Saira, present complainant, who did not vacate it, rather, a civil suit was filed by her, which is pending. Thenafter, a Non-Cognizable report was got lodged, wherein, proceeding was subsequently stayed by this Court, in a proceeding, under Section 482 of Cr.P.C. Thereafter, this false complaint, with false accusation, has been got filed, wherein, impugned summoning order has been passed, but, no such occurrence ever occurred and it was misuse of process of law. Hence, for avoiding abuse of process of law and for securing ends of justice, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.

Learned AGA, representing State of U.P., has vehemently opposed this Application.

Previous litigation, in between the parties, may be a malice for filing present criminal complaint or may be a cause for occurrence, but all these are questions of fact to be seen by the Trial court, during course of trial, and this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to embark upon such factual aspects.

From very perusal of the complaint, it is apparent that occurrence, dated 3.5.2019, at about 6.00 PM, has been said by the complainant in her statement, recorded, under Section 200 of Cr.P.C., which was in reiteration of contention of complainant. Same has been said by the witnesses, Hasin Khan and Taira, who were examined, under Section 202 of Cr.P.C., in the enquiry made by the Magistrate. It has been said that on 3rd May, 2019, at about 6.00 PM, when the complainant was present at her residence, accused persons, Salim Khan, Alim Khan, Rizwan Khan, Kamar Khan and Mazhar Alam, came in her house and as there was a previous litigation, in between them, they asked to enter into a compromise, which was not conceded by her. Then, they did assault upon her. Hence, impugned summoning order is there, on the basis of evidence, collected by the Magistrate, during his enquiry. Accordingly, this Application lacks merits and is liable to be dismissed.

Apex Court, in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844, has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent judgment, in the case of Hamida v. Rashid, (2008) 1 SCC 474, Hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again yet another judgment, in the case of Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded "Inherent jurisdiction under Section 482 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." While interpreting this jurisdiction of High Court Apex Court, in the case of Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296, has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings".

Regarding prevention of abuse of process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494, has propounded "To prevent abuse of the process of the Court, High Court, in exercise of its inherent powers under section 482, could quash the proceedings, but, there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in the case of State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".

Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.

In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly.

However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

For a period of 30 days from today, no coercive action shall be taken against the applicants.

In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.