Dismissed

Sunil Kumar @ Bhanwara and Anr. v. State of U.P. and Anr.

Allahabad HC14 Jan 2020A482/658/2020

Case brief

AI extract

What is this about?

The High Court dismissed an application under Section 482 Cr.P.C. seeking quashing of a summons in a rape case. The court held that a prima facie case existed and inherent powers cannot be exercised to embark on a factual matrix at the summons stage. Applicants were given 30 days to surrender for bail consideration.

What did the court decide?

Application dismissed; applicants granted 30 days to surrender for bail consideration; no coercive action during this period.

Sunil Kumar @ Bhanwara and Anr. Vs… — Constitutional and Fundamental Rights | Allahabad HC (2020)

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Court No. - 77

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Case :- APPLICATION U/S 482 No. - 658 of 2020

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Applicant :- Sunil Kumar @ Bhanwara And Anr Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Anand Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Ram Krishna Gautam,J.

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This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicants, Sunil Kumar @ Bhanwara and Dharamveer @ Amit Kumar, with a prayer for setting aside summoning order, dated 27.11.2018, passed by the Chief Judicial Magistrate, Kanpur Dehat, and, thereby, entire criminal proceeding of Complaint Case No. 1148 of 2017, (Misc. Case No.56/2017), Laxmi vs. Dharamveer and others, under Sections-376-D and 506 of IPC, Police Station-Devarahat, DistrictKanpur Dehat, pending in the court of Chief Judicial Magistrate, Kanpur Dehat.

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Learned counsel for applicants argued that proceedings, challenged herein, are outcome of false accusation, lodged in counter-blast to a case, wherein, husband of the complainant was summoned for offences, punishable, under Sections 323, 504 and 354 of IPC and as a result of the same, this false accusation was got lodged. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.

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

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Perusal of the complaint reveals that it was filed by Smt. Laxmi against applicants, Sunil Kumar @ Bhanwara and Dharamveer @ Amit Kumar, and one unknown accused person, with this contention that on 12.3.2017, at 6.00 AM, while complainant, alongwith her monther in law, Ram Kali, had gone to the side of forest, for open door defecation, accused persons rushed thereat, they caught her and committed rape with her. Upon hue and cry, her mother-in-law rushed there. A threat of dire consequences was extended. Accused persons

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ran away from the spot.

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This complaint was taken notice of by the Magistrate and statement of complainant was recorded, under Section 200 of Cr.P.C., wherein, there is complete reiteration of the contention of the complaint. This has further been reiterated by statements of Ram Kali and Jagdamba, recorded, under Section 202 of Cr.P.C..

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Meticulous analysis of evidence or lack of medical report etc. are not to be made at the juncture of passing of order for summoning, under Section 204 of Cr.P.C., rather, existence of a prima facie case is to be seen as to whether it exists or not and this should be by application of judicial mind. In present case, summoning order itself reveals that previous litigation, in between the parties as well as the case, which was got lodged against Veer Singh, has been mentioned in it, i.e., all those facts were taken into consideration and by application of judicial mind, impugned summoning order was passed. Hence, under all above facts and circumstances, as this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to embark upon factual matrix, no case for any indulgence is made out out.

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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,

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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".

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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 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 :- 14.1.2020/bgs/

Sunil Kumar @ Bhanwara and Anr. v. State of U.P. and Anr.

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Sunil Kumar @ Bhanwara and Anr. v. State of U.P. and Anr.

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