Dismissed

Tauhid and Anr. v. Sibtain Khan

Uttarakhand HC22 Oct 2013C482/83/2010

Case brief

AI extract

What is this about?

Applicants challenged the summoning order under Section 482 Cr.P.C. regarding offences of assault and insult. The High Court held that since a prima facie case was established and factual foundation was laid, the application to quash was not maintainable and was dismissed.

What did the court decide?

Application to quash the cognizance order and criminal proceedings dismissed; bail applications to be decided on surrender.

Tauhid and Anr. Vs Sibtain Khan — Civil Procedure and Limitation | Uttarakhand HC (2013)

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HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No.83 of 2010 Tauhid and another … Applicants

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vs. Sibtain Khan … Respondent

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Mr. Aditya Kumar Arya, Advocate holding brief of Mr. T. A. Khan, Senior Advocate for the applicants. Mr. M. K. Ray, Advocate for the respondent.

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Hon’ble U. C. Dhyani, J. (Oral)

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The applicants, by means of present Application under Section 482 Cr.P.C., seek to quash the cognizance order dated 26.10.2009 passed by the Judicial Magistrate, Rudrapur, District Udham Singh Nagar in Complaint Case No.720 of 2009 titled as Sibtain Khan vs. Tauhid & another under Sections 323, 452, 504 & 506 IPC. The applicants also seek to quash the proceedings of the aforementioned criminal case pending before the said court.

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A criminal complaint case was filed by complainant/respondent against 5 accused persons, including the present applicants in the court of Additional Judicial Magistrate, Udham Singh Nagar. After recording of statements under Sections 200 & 202 Cr.P.C., accused-applicants were summoned to face the trial for the offences punishable under Sections 323, 452, 504 & 506 I.P.C., vide order dated 26.10.2009 passed by the Judicial Magistrate, Rudrapur. Aggrieved against the same, present application under Section 482 Cr.P.C. was filed by accused-applicants.

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Complainant/respondent gave his statement under Section 200 Cr.P.C. and supported the contents of the criminal complaint case. He said, among other things, that the incident took place on 09.08.2009 at about 10:00 AM at Jha Colony within the jurisdiction of Police Station Pant Nagar. Accused persons hurled abuses at complainant-respondent, took ornaments and cash from the almirah of complainant and, when the complainant

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raised objection, accused persons assaulted him. Many people of the locality intervened and saved the complainant-respondent. The complainant reported the offence to the police station concerned. He also gave an application to the Senior Superintendent of Police, but no action was taken on the same, therefore, the complainant-respondent was compelled to file the criminal complaint case against the accused-applicants. It is also alleged that the complainant sustained injuries. Complainant-respondent examined himself under Section 200 Cr.P.C. Four witnesses, namely, Saleem CW1, Zahid Khan CW2, Liyakat Khan CW3 and Mohd. Hanif CW4 were examined under Section 202 Cr.P.C. After having found a prima facie case for the offences punishable under Sections 323, 452, 504 & 506 IPC, the applicants were summoned to face the trial. The learned Magistrate gave cogent reasons while passing the impugned order. There appears to be no illegality in the impugned order.

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No interference is called for in the impugned summoning order at this stage, as would be evidenced from the law laid down by the Hon’ble Supreme Court, in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 , wherein it was held:

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“28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution / complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by

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establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution / complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.”

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The Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and

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materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

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When factual foundation of any offence is laid against the accused-applicants, then this Court should not intervene in exercise of it’s inherent jurisdiction. It is a well settled law that the inherent powers of this Court under Section 482 Cr.P.C. should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section. In the instant case, the accused-applicants are unable to pass those tests and it is not a fit case where such jurisdiction should be exercised.

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As a consequence thereof, application under Section 482 Cr.P.C. is liable to be dismissed and is hereby dismissed. It is, however, provided that if the applicants surrender before the Judicial Magistrate, Rudrapur and seek bail, their bail applications in the criminal complaint case No.720/2009 shall be decided by the Magistrate concerned on the same day.

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(U. C. Dhyani, J.)

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Dated 22^nd October, 2013

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Rawat

Tauhid and Anr. v. Sibtain Khan

Case brief

What is this about?

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Tauhid and Anr. v. Sibtain Khan

Case brief

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