Dismissed

Diwakar Arya and 2 Others v. State of U.P. and Another

Allahabad HC10 May 2023A482/17246/2023

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., the High Court of Allahabad dismissed the applicant's plea to quash a summoning order dated 03.10.2022. The Court held that allegations were matters of fact for the trial court to decide and did not disclose any legal bar warranting interference with the proceedings under Section 392 IPC.

What did the court decide?

Prayer to quash the summoning order dated 03.10.2022 and the entire proceedings under Complaint Case No. 105 of 2021 is refused and the application is rejected.

Diwakar Arya and 2 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:101341

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 17246 of 2023 Applicant :- Diwakar Arya And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chandra Bhan Kushwaha Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Sri Chandra Bhan Kushwaha, learned counsel for the applicants, Mr. Amit Singh Chauhan, learned A.G.A. for the State, and perused the record.

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This application under Section 482 Cr.P.C. has been filed by the applicants to quash a summoning order dated 03.10.2022 passed by Additional Sessions Judge-III/ Special Judge (Dacoity Affected Area), Budaun in Complaint Case No. 105 of 2021, 'Maheshchandra v. Diwakar and others), under Section 392 IPC, Police Station – Islamnagar, District Budaun.

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The complainant – opposite party no. 2 filed a complaint against the accused – applicants with the allegation that on 15.11.2020 at about 05:00 P.M. when the opposite party no. 2 was returning after selling Maintha (peppermint), the accused persons were present near Musiya Nagla. After abusing the opposite party no. 2 with cast indicative words, snatched Rs. 45200/-. He was also beaten by the accused persons, then an application was given to senior officials, however, finding no response, the present complaint was lodged. After recording statements under Section 200 and 202 Cr.P.C. the applicants have been summoned, hence the present application under Section 482 Cr.P.C. has been filed.

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Learned counsel for the applicants submits that the applicant has been falsely implicated in the present case for the purpose

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of harassment. He further submits that several cases have been lodged from applicant's side in respect to matrimonial dispute as well as regarding maintenance under Section 125 Cr.P.C., therefore, as a counterblast the opposite party no. 2, who was mediator in the marriage between daughter of applicant no. 1 and Saurabh, present case has been lodged. Said fact has been averred in paragraph-12 of the affidavit filed in support of the application. Several other submissions have been made on behalf of the applicants to demonstrate falsity of allegations made against them, therefore, summoning as well as continuance of the proceedings are nothing but abuse of process of law, thus, liable to be quashed.

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Learned A.G.A. for the State, on the other hand, has opposed the submissions made by the learned counsel for the applicants by submitting that there is nothing on record to show that the opposite party no. 2 was a mediator in the marriage of applicant no. 1's daughter and Saurabh. The summoning order has been passed relying on the statements recorded under Sections 200 and 202 Cr.P.C. as prima facie offence under Section 392 IPC is made out. He further submits that there is no illegality in order impugned and all contentions raised by the applicants' counsel relate to disputed questions of fact. From perusal of the records, prima facie, it can not be said at this stage that no offence has been committed by the applicants.

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I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.

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All the contentions raised by the learned counsel for the applicants relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of

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various intricacies of factual details, which have been touched upon by learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.

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In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence. The Court can not look into the fact as to whether the allegations in the complaint are true or untrue and the same has to be decided by the trial court, thus no interference is required in such cases as the present one. Even though, the inherent power of the High Court under Section 482 Cr.P.C., to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the Cr.P.C. is not to be exercised for the asking.

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The aforesaid has been held by the Apex Court in the case of State of Haryana and Ors. vs. Bhajan Lal and Ors. reported in 1992 Suppl.(1) SCC 335 . The relevant paragraph of the aforesaid judgment reads as under:-

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"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

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The following observations has also been made by the Apex Court in the latest judgment of Ramveer Upadhyay & another vs. State of U.P. & another reported in 2022 Livelaw (SC) 396 . Paragraph no.39 of the aforesaid judgment reads as under:-

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"39. In our considered opinion criminal proceedings cannot be nipped in

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the bud by exercise of jurisdiction under Section 482 of the Cr.P.C. only because the complaint has been lodged by a political rival. It is possible that a false complaint may have been lodged at the behest of a political opponent. However, such possibility would not justify interference under Section 482 of the Cr.P.C. to quash the criminal proceedings. As observed above, the possibility of retaliation on the part of the petitioners by the acts alleged, after closure of the earlier criminal case cannot be ruled out. The allegations in the complaint constitute offence under the Attrocities Act. Whether the allegations are true or untrue, would have to be decided in the trial. In exercise of power under Section 482 of the Cr.P.C., the Court does not examine the correctness of the allegations in a complaint except in exceptionally rare cases where it is patently clear that the allegations are frivolous or do not disclose any offence............."

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In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.

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Considering the facts and circumstances of the case, this Court finds that the present matter does not fall in any of the categories recognized by the Apex Court, which might justify interference by this Court in order to quash the summoning order and the proceedings. Therefore, the prayer for quashing the summoning order dated 03.10.2022 as well as the entire proceedings of aforesaid complaint case is refused as I do not see any abuse of the court's process either.

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The present application lacks merit and is, accordingly, rejected.

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Order Date :- 10.5.2023 DS

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Digitally signed by :- DIGAMBER SINGH High Court of Judicature at Allahabad

Diwakar Arya and 2 Others v. State of U.P. and Another

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Diwakar Arya and 2 Others v. State of U.P. and Another

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