Shagufta Begum and Others vs State of U.P. and Another

Surendra Singh, J.—The applicants by filing present application u/s 482, Cr. P.C., have sought to quash impugned orders dated 5.5.2009 and 8.8.2009, passed by Additional Chief Judicial Magistrate, Court No. 1, Moradabad in Case No. 1715/IX of 2007, Smt. Zaibun Nisha v. Smt. Shagufta Begum and Ors., under Sections 147, 148, 392, 504, 506 and 436, I.P.C., pending in the court of learned Additional Chief Judicial Magistrate, Court No. 1, Moradabad.

The background facts of the case in a nutshell are as follows:

The case was registered at Police Station Kanth, district Moradabad under Sections 147, 148, 392, 504, 506 and 436, I.P.C. vide Case Crime No. 460 of 2007 on 5.7.2007 in respect of the incident alleged to have taken place on 23.5.2007 by the opposite party No. 2 through an application u/s 156(3), Cr. P.C. In consequence thereof, the investigation culminated into filing of final report on 9.7.2007. The opposite party No. 2 filed her protest petition alongwith her affidavit on 20.8.2007. Learned Magistrate after taking into consideration of the said protest petition and affidavit filed by the opposite party No. 2 directed the same to be treated as complaint and thus proceeded as complaint case. Respondent No. 2 got herself examined u/s 200, Cr. P.C. while Jamaluddin, Raseed, Mohd. Sajid and Smt. Mahmooda Begum were examined u/s 202, Cr. P.C. in support of the allegations made in the complaint. Resultantly, the applicants were summoned vide order dated 8.8.2008 in exercise of the power conferred u/s 204, Cr. P.C. in the aforesaid sections.

Being aggrieved, the applicants have preferred criminal misc. application u/s 482, Cr. P.C. which was numbered as 2427 of 2008, Smt. Shagufta Begum and Ors. v. State of U.P. and Anr. before this Court. The matter came up before another Bench of this Court and vide order dated 5.2.2009 the application was disposed of finally with the following observations:

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submissions made at the bar relate to the disputed question of fact, which cannot be adjudicated upon by this Court u/s 482, Cr. P.C. Resultantly, the prayer for quashing the proceeding of complaint case and summoning order was refused. It was further directed that the applicants have got right of discharge u/s 245, Cr. P.C. through a proper application for the said purpose and they were free to take all the submissions in the said discharge application before the trial court.

In the event such an application was filed within one month from the date of that order, the trial court was directed to consider and dispose it of within a period of two months from the date of its filing.

It was further provided that if the applicants appeared and surrendered before the court below within 30 days from the date of order and applied for bail, then their prayer for bail should be considered in view of the settled law laid by this Court in the case of Amrawati and Anr. v. State of U.P. 2004 (57) ALR 290, after hearing Public Prosecutor. For a period of 30 days from said date or till the disposal of the application for grant of ball whichever was earlier, no coercive action should be taken against the applicants. However in case the applicants did not appear before the court below within the aforesaid period, coercive action should be taken against them.

The applicants in view of the observations made by this Court moved an application dated 4.3.2009 for discharge through their pleader before the learned Magistrate who after hearing counsels for both the parties and having considered the material facts and circumstances of the case dismissed the same by order dated 5.5.2009, hence aggrieved by the said order the applicants have preferred for second journey to this Court.

Heard learned Counsel for the applicants and learned A.G.A. and perused the material placed on record.

The applicants have sought to quash impugned order dated 5.5.2009 as well as summoning order dated 8.8.2008 by way of moving the present application u/s 482, Cr. P.C. solely on the ground that present criminal proceeding against the applicants has been maliciously instituted with ulterior motive for wreaking vengeance from the applicants and continuance of such proceedings is nothing but abuse of process of law.

Learned Counsel for the applicants have next urged that the dispute involved between the parties is of civil nature but the applicants have maliciously been dragged in criminal case. He has further submitted that from perusal of the entire material on record, no offence under Sections 147, 148, 392, 504, 506 and 436, I.P.C. is disclosed against the applicants. Learned Magistrate was not justified in rejecting the discharge application solely on the ground that present case/offence is triable exclusively by the court of sessions, therefore, he had no power to discharge the applicants.

On the other hand, learned A.G.A. has contended that impugned order does not suffer from any illegality, impropriety or flagrant miscarriage of justice. Relying upon the decision of the Hon''ble Apex Court in the case of Sanjay Gandhi Vs. Union of India (UOI) and Others, , he has pointed out that under the new Code in the case where the offences are triable exclusively by the Court of Session, the Magistrate has no power to discharge the accused, therefore, learned Magistrate while rejecting the discharge application moved on behalf of the applicants has committed no mistake, moreso, when this Court vide order dated 5.2.2009 made observation that the perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said that no offence is made out against the applicants. He has further contended that apart from this it is significant to note that by the same order this Court has directed the applicants to appear/surrender before the court below within 30 days from the date of order and apply for bail but they did not appear before the court below, rather avoided the process of law and lost all the sympathy of the Court. This application, therefore, deserves to be dismissed with heavy costs.

I have given anxious consideration to the submissions made by the counsel for the parties and have gone through the view expressed by Hon''ble Apex Court in the above mentioned case, the sum and substance of the dictum of the Hon''ble Apex Court does not permit me to take a different view except the view taken by the Hon''ble Apex Court.

In the present case Section 436, I.P.C is exclusively triable by the Court of Sessions and by virtue of this, committing Magistrate had no power to discharge the accused-applicants. Hon''ble Apex Court in the abovenoted decision in para 2 has held as follows:

We have heard counsel on both sides and proceed to elucidate certain clear propositions under the new Code bearing upon the committal of cases where the offence is triable exclusively by the Court of Session. The Committing Magistrate in such cases has no power to .discharge the accused. Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins. From this it follows that the argument that the accused has to cross-examine is out of bounds for the Magistrate, save in the case of approvers. No examination-in-chief, no cross-examination.

Undisputedly, the applicants did not appear/surrender before the Court within the stipulated period despite the fact that this Court had directed them to surrender/appear before the court below and apply for bail, but they did not show their anxiety to comply with the order of this Court. It will be misuse of the power of the Court, if any kind of sympathy is shown in favour of persons who have got no respect for the orders of the Court.

Under these circumstances, this application moved by the applicants u/s 482, Cr. P.C., being bereft of any merit, does not warrant any interference by this Court and it is hereby dismissed.