In an application under Section 482 Cr.P.C. seeking quashing of proceedings due to alleged material illegality in the summoning order and counterblast allegations, the High Court rejected the prayer, holding that procedural irregularities regarding gender identification did not vitiate the prosecution case.
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Court No. - 69
Case :- APPLICATION U/S 482 No. - 2644 of 2023
Applicant :- Ganga Sahu And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anil Kumar Dubey,Ram Milan Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
List revised.
Heard Sri Ram Milan Dwivedi, learned counsel for the applicants, Sri Sanjay Kumar Singh, learned counsel for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed by the applicants Ganga Sahu and Upendra Sahu with the following prayers :-
"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to allow the instant application of the applicants be pleased to quash the entire proceeding of Case No. 2101/2022 (Pawan Jain Versus Bhupendra Sahu and others), under Sections 452, 504, 506 I.P.C., Police Station Tori Fatehpur, District Jhansi, presently pending in the court of learned Judicial Magistrate, Garautha, Jhansi as well as impugned summoning order dated 20.12.2022 and other process issued against them.
It is, further prayed that this Hon'ble Court may be pleased to stay the further proceeding of Case No. 2101/2022 (Pawan Jain Versus Bhupendra Sahu and others), under Sections 452, 504, 506 I.P.C., Police Station Tori Fatehpur, District Jhansi, presently pending in the court of learned Judicial Magistrate, Garautha, Jhansi as well as impugned summoning order dated 20.12.2022 and other process issued against them. Otherwise it can cause irreparable loss and injury to them.
Or to pass such other and further orders which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case."
The facts of the case are that a complaint dated 08.9.2022 was filed by Pawan Jain/opposite party no. 2 against Bhupendra Sahu, Harendra Sahu and Ganga Sahu, for the offences under Sections 387, 323, 452, 504, 506 I.P.C. and in support of complaint statement of the complainant Pawan Jain was recorded under Section 200 Cr.P.C. whereas that of the witnesses Virendra Kumar Jain and Kamlesh Kumar were recorded under Section 202 Cr.P.C. as CW-1 and CW2 respectively. The trial court then vide its order dated 20.12.2022 summoned the applicants only for the offences under Sections 452, 504, 506 I.P.C. The allegations in the complaint are that on 01.9.2022 at about 08:00 P.M. the
complainant was in his house wherein the accused persons came there and started hurling abuses while stating that you and your wife have given an application to S.S.P., Jhansi which has been inquired by the police of police station Todi Fatehpur in which they have given Rs.50,000/- and the matter has been settled there. They entered into the house and said that they spent Rs.50,000/- and thus have come to realize the same. He should give the said money otherwise he would face consequences. They would enter into the house and murder his wife and children. The complainant then told them that you have already forcibly taken Rs.10,000/- and are again forcing him to pay extra money, if you do wrongful act then the police would initiate action against them, on which they assaulted him. On hearing shouts his brother Kamlesh and his father Virendra and wife Sonan saved him. They also saw the incident. The accused persons have threatened him to give Rs.50,000/- within seven days otherwise they would murder him. He gave an application at the concerned police station and also to S.S.P., Jhansi through registered post but no action has been taken. Thus the present complaint has been filed on which the applicants have been summoned to face trial.
Learned counsel for the applicants argued that the order impugned is bad in the eyes of law inasmuch as the complainant in his statement recorded under Section 200 Cr.P.C. has levelled allegations against three accused namely Bhupendra Sahu, Harendra Sahu and Ganga Sahu but the trial court has only summoned Ganga Sahu and Upendra Sahu who are the present applicants, but has left Harendra Sahu to be summoned even despite the fact that he has also been assigned identical role as that of the two co-accused persons. It is argued that in the order impugned dated 20.12.2022 in the operative portion the trial court has observed that the victim in the present case is the complainant and has referred to as her being a lady and it is stated that she has been examined under Section 200 Cr.P.C. which is totally false and incorrect as the complainant is Pawan Jain who is male person and he has been examined under Section 200 Cr.P.C. It is argued that same would go to show that the trial court has not applied its mind in the matter and has mechanically passed the summoning order and same thus suffers from material illegality and deserves to be quashed. It is further argued that even quashing of the present case is prayed for on the ground that third accused although has been assigned the same role as that of the applicants but he has not been summoned by the trial court. It is argued that the present case is a counterblast. Para-10 of the affidavit in support of present application has been placed before the Court and it is argued that the applicant no. 2 Bhupendra has lodged an F.I.R. against Virendra, Bhajju and Kallu in which Virendra is father of the opposite party no. 2. It is argued that the present case is a case of counterblast as the said accused persons were pressuring to compromise the said case. It is argued that the present case is a case of no injury. Para-14 of the affidavit has been placed before the Court. It is argued that the allegations as levelled are totally baseless and have no legs to stand. Para-17 of the affidavit has been placed before the Court for the same. It is argued that the present proceedings are abuse of process of law.
Per contra, learned A.G.A. opposed the prayer for quashing and argued that the applicants are named in the complainant, in the statement of the complainant
and his witnesses and roles have been assigned to them. The trial court by a speaking order on merits passed on 20.12.2022, has summoned the applicants to face trial. It is argued that the trial court has passed a detailed order even being cognizant of the position of law which has been mentioned therein and has thus summoned the applicants. It is argued that thus the present application under Section 482 Cr.P.C. deserves to be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicants are named in the complaint. The complainant and his witnesses have also named the applicants and have assigned roles to them. In so far as reference of the victim being a lady and is being examined under Section 200 Cr.P.C. is concerned, the Court is of the opinion that the same would not go to knock down the prosecution case as a whole. The trial court has in its order dated 20.12.2022, adverted and mentioned to the entire prosecution case and also inquiry conducted by it. Merely by stating that the complainant has been described as a woman who has been stated to be examined under Section 200 Cr.P.C. would not render the allegations and the entire prosecution case to be false and a case fit for quashing. In so far as the ground of counterblast is concerned, the law is well settled that malafides cannot be a ground for quashing. In the case of State of M.P. vs. Awadh Kishore Gupta and others: (2004) 1 Supreme Court Cases 691 it has been held that malafides of the informant/complainant cannot be a ground for quashing. Looking to the facts and circumstances of the case and the order impugned dated 20.12.2022, prima facie offence is disclosed against the applicants.
In view of the same, the present application under Section 482 Cr.P.C. lacks merit and is hereby dismissed.
(Samit Gopal,J.)
Order Date :- 15.2.2023 Naresh
Digitally signed by :- NARESH KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether the trial court committed material illegality by summoning only two accused when a complaint was filed against three and by misidentifying the gender of the complainant in the reasoning.
Whether the alleged malafides and counterblast nature of the case are sufficient grounds to quash the proceedings under Section 482 Cr.P.C.
Colour shows how this judgement treated each authority
State of M.P. vs. Awadh Kishore Gupta and othersReferred¶16
(2004) 1 Supreme Court Cases 691
1 provisions across 1 enactments
Ganga Sahu
Upendra Sahu
State of U.P.
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
