Shiv Poojan Tripathi and Others vs State of U.P. and Another

Sunil Hali, J.—By means of this application u/s 482, Cr.P.C. applicants have prayed for quashing of the entire proceedings of Complaint Case No. 461 of 2012, Dhirendra v. Shiv Poojan, under Sections 323, 504, 506(2), 427 and 379, I.P.C. pending in the Court of A.C.J.M., Allahabad. Allegations in the complaint are that opposite party No. 2, who is posted as Review Officer, in this Court was intercepted by the applicants on 7.12.2010 near the road that leads to the bungalow of the Chief Justice. Two of the accused namely Shiv Poojan Tripathi and Prabhat took out their country made pistol and put it on the head of the opposite party No. 2 and started abusing him and on being opposed the opposite party No. 2 was hit with the butt of the country made pistol and was also physically assaulted by these applicants. In the process they snatched away Rs. 5,000 from the pocket of opposite party No. 2. Complainant was saved in the process by the passerby and by some officials of the Court. This report was not entertained as the brother of the applicant No. 1 is working in the police department.

It is also revealed that a false and frivolous complaint has been filed by the applicant No. 1 against the complainant on account of the matrimonial discord. It is also stated that the complainant suffered fracture in his wrist. On the basis of the complaint applicants have been summoned to face the trial vide order dated 30.11.2011. It is this order which has been questioned before this Court on the ground that present complaint has been filed by way of counter blast.

It is contended by learned counsel for the applicants that present case is a counter blast to the case filed by the applicant against the opposite party No. 2.

Heard learned counsel for the parties and learned A.G.A. and perused the material on record.

The powers possessed by the High Court u/s 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court''s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

Hon''ble Apex Court in catena of decisions had occasion to examine the legal position in a large number of cases. In R.P. Kapur Vs. The State of Punjab, , Hon''ble Apex Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings; they are as under:

(i) where it manifestly appears that there is a legal bar against the. Institution or continuance of the proceedings;

(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

Applying the aforesaid principles in the present case, prima facie the facts constitute commission of cognizable offence against the applicants.

Allegations contained are that the complainant was intercepted by the applicants and country made pistol was put on his head and he was threatened by the applicants and was also hit with the butt of the country made pistol. He was also beaten as a result of which he suffered injuries. Correctness and otherwise of these facts by itself cannot be adjudicated at this stage. Factual aspect of the case are of such a magnitude that they cannot be seen in their true perspective without sufficient material. Only plausible explanation submitted by the applicants is that the present complaint has been filed to harass the applicants in view of the fact that applicant No. 1 had already filed a complaint u/s 498A, I.P.C. and other sections and also a complaint under the Protection of women from Domestic Violence Act against the opposite party No. 2. It cannot be assumed at this stage as to whether the present complaint has been filed with an intention to harass the applicants as the facts revealed in the Complaint prima facie constitute an offence.

It may be true that in matrimonial discord an effort is made by either of the spouse to harass the others but it cannot be said that every complaint filed by other party has to be discarded at the threshold merely on the ground of being a counter blast. Something more has to be shown to the court which would indicate that the present complaint has been filed to harass the applicants. Merely because complaint has been filed by the applicant No. 1 u/s 498A, I.P.C. and other allied offences against the opposite party No. 2 by itself would not obviate the possibility that the acts as alleged in the complaint could not have taken place. In the matrimonial cases, it is not always the wife who alone suffers and is harassed even the husband also faces harassment from the other side. Looking to the limitation of the Court while exercising power u/s 482, Cr.P.C. the complaint filed by the husband against her wife cannot be terminated at this stage. For the aforesaid discussion, I am of the opinion that the application does not satisfy the requirements as set forth by the Hon''ble Apex Court in R. P. Kapur (supra) for the purpose of seeking quashment of proceedings. As such the application sans merits and is hereby rejected.