Dismissed

Ramesh Kumar Patel v. State of U.P. and Another

Allahabad HC6 Jan 2020A482/44730/2019

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. seeking to set aside summoning orders and non-bailable warrants in a criminal complaint case involving offences under the IPC. The court held that factual issues require trial court analysis and Section 482 cannot be used to circumvent trial procedures. The applicant was directed to surrender within 30 days for bail consideration, d

What did the court decide?

Application dismissed; applicant directed to surrender within 30 days for bail consideration; no coercive action during this period.

Ramesh Kumar Patel Vs State of U.P. and… — Civil Procedure and Limitation | Allahabad HC (2020)

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Court No. - 77

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Case :- APPLICATION U/S 482 No. - 44730 of 2019

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Applicant :- Ramesh Kumar Patel Opposite Party :- State of U.P. and Another Counsel for Applicant :- Archana Hans Counsel for Opposite Party :- G.A.

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Hon'ble Ram Krishna Gautam,J.

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Supplementary affidavit, filed today, by the learned counsel for applicant, is taken on record.

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This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Ramesh Kumar Patel, with a prayer for setting aside summoning order, dated 4.4.2014, passed by Additional Chief Judicial Magistrate, court no. 6, Varanasi, in Complaint Case No.3497 of 2012, Upendra Nath Shukla vs. Kanhaiya & others, under Sections-323, 363, 364-A, 384, 386, 387 and 388 of IPC, Police Station-Shivpur, District Varanasi, as well as, impugned order of issuing Non-Bailable Warrant, dated 13.3.2019.and, thereby, entire criminal proceeding.

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Learned counsel for applicants argued that the accused-applicant is a witness of a deed for execution of a notarised agreement to sale, with which, applicant has no concern. One of the accused, Anurag Kumar, has, earlier, filed a proceeding, under Section 482 of the Cr.P.C., being Application U/S 482 No.47441 of 2014, Anurag Kumar vs. State of U.P. and another, wherein, this Court has passed the order, dated 19.11.2014, staying further proceeding of above complaint case, with a direction for disposal of discharge application, moved before the Magistrate. While rejecting above discharge application, straightaway, Non-Bailable Warrant was issued and only thereafter, applicant came to know about the impugned summoning order. Hence, it was misuse of process of law and as such this Application with above prayer.

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

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From perusal of the impugned order, it is apparent that a complaint was filed wherein the Magistrate took cognizance, thenafter, he decided to treat it as a complaint case and examined complainant, under Section 200 of Cr.P.C., and statements of his two witnesses, Uday Nath Shukla, as PW-1 and Ram Sharan Upadhyay, as PW-2, under Section 202 of Cr.P.C. Besides this, there were documentary evidences, too, and on the basis of it, impugned summoning order was passed against Kanhaiya Lal Maurya, Mrityunjay Maurya, Ramesh Kumar @ Puddan and Anurag Kumar, for offences, punishable, under Sections 386, 387, 388, 323, read with Section 34 of IPC. Against this order, a proceeding, under Section 482 of Cr.P.C., was initiated, wherein, order, as referred to above, was passed. Thenafter, while disposing of discharge application, the same was rejected.

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Contention of complainant was that a notarial agreement to sale was executed regarding sale of agricultural land, wherein, money was paid. Subsequently, this could not be materialised. Hence, again payment was made back. Thenafter, entire payment of advance paid back, as was written in complaint, even then, a conspiracy was hatched and in connivance of Sub Inspector Anurag Kumar, Incharge Harhua, Police Outpost, complainant was taken to the said Police outpost, where, he was compelled to make payment of Rs.3,95,0000/- to Kanhaiya Lal Maurya, otherwise, be ready either for dying or for false implication in many other criminal cases as well and even to face encounter. All this was done, under assistance and in connivance of Sub Inspector, Anurag Kumar, as a result of which, a cheque in the name of Kanhaiya Lal Maurya for an amount of Rs.3,50,000/- and a cheque of Rs.45,000/-, in the name of Mrityunjaya Maurya was got issued, whereas, no such liability was there. Thereafter, this complaint was filed.

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This contention of complainant was reiterated in the statement, under Section 200 of Cr.P.C., which stood corroborated, by the statement, recorded, under Section 202 of Cr.P.C., hence, there is no ground for setting aside impugned summoning order or proceeding of above criminal case. More

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so, in previously instituted proceeding, under Section 482 of Cr.P.C., above relief was rejected by the Coordinate Bench, hence, above summoning order was not set aside. So far as order, issuing Non-Bailable Warrant, is concerned, it is a process of the court and it has been issued only in the absence of accused applicant, who had been summoned for such heinous offence.

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Hence, under all above facts and circumstances, this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to make a meticulous analysis of factual aspect because the same is a question, to be gone into, during course of trial, by the Trial court.

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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

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"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".

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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".

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

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

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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.

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For a period of 30 days from today, no coercive

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action shall be taken against the applicants.

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

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Order Date :- 6.1.2020/bgs/

Ramesh Kumar Patel v. State of U.P. and Another

Case brief

What is this about?

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Ramesh Kumar Patel v. State of U.P. and Another

Case brief

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