[ad_1]
Uttarakhand High Court
Under Section 482 vs State Of Uttarakhand & Another on 15 April, 2025
1
2025:UHC:3048
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
CRIMINAL MISC. APPLICATION NO.04 OF 2018
Under Section 482, Code of Criminal Procedure, 1973
Smt. Nusrat Parveen & others ...Applicants
Versus
State of Uttarakhand & another ...Respondents
Presence:
Mr. M. K. Ray, learned counsel for the Applicant.
Mr. Bhupendra Prasad, learned cousnel for the private respondent.
Mr. Vipul Panuli, learned AGA for the State of Uttarakhand.
H on 'ble Ash ish N a it h a n i, J ( Or a l)
1. This application under Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') has been filed by
the applicants seeking quashing of the summoning order dated
27.03.2017 passed by the learned Judicial Magistrate/Civil Judge
(Junior Division), Udham Singh Nagar in Criminal Complaint Case
No. 2729/2016 (Shabir versus Jahan and others) under Sections 323,
392, 504, 506 of the Indian Penal Code, 1860 (hereinafter referred to as
'IPC').
2. The factual matrix of the case, as gleaned from the application
and documents on record, reveals that applicant No. 1, Smt. Nusrat
Parveen, is the wife of respondent No. 2 (complainant in the criminal
case), having married him on 15.06.2012 at Bareilly, Uttar Pradesh. A
male child named Arhan was born out of the wedlock on 29.05.2014.
The other applicants (Nos. 2 to 6) are the relatives of applicant No. 1.
3. Applicant No. 1 has alleged that due to non-fulfilment of dowry
demands, she was ousted from her matrimonial home. Consequently,
on 12.08.2014, she filed an application under Section 156(3) Cr.P.C.
2
2025:UHC:3048
before the Additional Chief Judicial Magistrate, Bareilly, Uttar Pradesh
against respondent No. 2 and his family members. The learned
A.C.J.M. Bareilly treated the application as a complaint case vide order
dated 23.05.2015 and issued summons to respondent No. 2 and his
family members. This matter is still pending before the court.
4. Applicant No. 1 also filed a maintenance case under Section 125
Cr.P.C. against respondent No. 2 on 07.08.2014 before the Family
Judge, Bareilly, seeking maintenance for herself and her child, which is
still pending.
5. Furthermore, applicant No. 1 has filed a case under the Protection
of Women from Domestic Violence Act against respondent No. 2
before the Judicial Magistrate-I, Bareilly, which is also pending.
6. According to the applicants, as a counter-blast to the
aforementioned proceedings, respondent No. 2 filed a complaint dated
24.05.2016 before the Chief Judicial Magistrate, Udham Singh Nagar,
alleging that on 08.05.2016, the applicants came from Bareilly and
committed "marpeet" (assault) with the complainant and also looted
Rs. 70,000/- from him.
7. The respondent No. 2 in his complaint stated that on 08.05.2016,
he had gone to Sirauli Kalan along with Tayyab and Zakir to buy a
residential plot, carrying an advance of Rs. 70,000/- to be given to the
property dealer. At around 12:30 p.m., near the Government Primary
School, the applicants, along with a few others, surrounded them,
abused the complainant, assaulted him and his companions, and
forcibly took Rs. 70,000/- from his pockets (Rs. 40,000/- from the right
pocket and Rs. 30,000/- from the left pocket).
8. The complainant claimed that he tried to lodge an FIR at
Pulbhatta police station, but the police refused to register his complaint.
He later sent an application to the Senior Superintendent of Police,
3
2025:UHC:3048
Udham Singh Nagar on 19.05.2016, but no action was taken, which led
him to approach the court.
9. In the proceedings before the Judicial Magistrate, the
complainant (respondent No. 2) got himself examined under Section
200 Cr.P.C., and two witnesses, namely Mohammad Tayyab (CW-1)
and Zakir (CW-2), were examined under Section 202 Cr.P.C. Based on
this evidence, the learned Judicial Magistrate/Civil Judge (J.D.),
Udham Singh Nagar issued summons to the applicants on 27.03.2017
for offenses under Sections 323, 392, 504, 506 IPC.
10. Aggrieved by the summoning order, the applicants have
approached this Court under Section 482 Cr.P.C., seeking quashing of
the summoning order and the entire proceedings of the criminal
complaint case.
11. Learned counsel for the applicants, Mr. M. K. Roy submitted that
the impugned complaint is nothing but a counter-blast to the cases filed
by applicant No. 1 against respondent No. 2. It is contended that the
applicants are residents of Bareilly, Uttar Pradesh, while the
complainant resides in Kichha, Udham Singh Nagar, and the applicants
did not have to commit such a crime in a different place/state on the
alleged day of the incident.
12. It is further submitted that the applicant No. 4 is an old and ailing
woman of about 65 years, a cardiac patient, and therefore, facing
difficulties due to the false complaint instituted by respondent No. 2.
13. Learned counsel for the applicants vehemently argued that the
learned Magistrate, while issuing the summoning order, ignored that
the complaint was only a counterblast to the earlier cases filed by
applicant No. 1, and hence, the issuance of the summoning order
constitutes a gross abuse of the process of law.
4
2025:UHC:3048
14. Additionally, in their supplementary affidavit, the applicants have
raised the ground that the learned Magistrate failed to follow the
mandatory provision of Section 202 Cr.P.C., which requires an inquiry
or investigation before summoning the accused residing outside the
territorial jurisdiction of the court. It is alleged that though the
complaint was filed on 24.05.2016, and the statements of CW-1 Mohd.
Tayyab and CW-2 Zakir were recorded, the Magistrate did not conduct
any inquiry or investigation as required under Section 202 Cr.P.C.
before issuing the summoning order.
15. In support of their arguments, the applicants have relied upon the
decisions of the Supreme Court in National Bank of Oman (2013) 2
SCC 488 and Abhijit Pawar (2017) 1 Supreme 684, both of which
emphasize the mandatory nature of the inquiry under Section 202
Cr.P.C. where the accused resides outside the jurisdiction of the
Magistrate.
16. Learned counsel for respondent No. 2 vehemently opposed the
application and submitted that the complaint lodged by respondent No.
2 is based on an actual incident that took place on 08.05.2016, and it is
not a retaliatory action to any litigation as alleged by the applicants.
17. It was submitted that respondent No. 2 is a labour-class person
who sells fish in a small temporary kiosk and earns only Rs. 200-300
per day. Due to his poor economic condition, applicant No. 1 left his
house and took away their child to her maternal home. There was no
question of demand for dowry as alleged by applicant No. 1.
18. Learned counsel further submitted that respondent No. 2 is still
ready to take applicant No. 1 back to his home, and in compliance with
the court's order, he went for mediation, but applicant No. 1 and her
family members are unwilling to reconcile and are trying to implicate
him in different criminal cases by taking advantage of her being a
woman.
5
2025:UHC:3048
19. It was contended that Kichha (Udham Singh Nagar) is not far
from Bareilly, so the applicants could very well commit the alleged
crime there. Respondent No. 2 produced evidence before the learned
Judicial Magistrate, and based on his complaint and evidence, the court
rightly issued the summoning order.
20. Learned counsel for respondent No. 2 also argued that there is no
abuse of the process of law, and the applicants are not entitled to invoke
the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. It
was submitted that if the applicants have faith in the judicial system,
they can appear before the trial court, file their response, and plead
their innocence.
21. Learned AGA representing the State opposed the application,
supporting the arguments of respondent No. 2.
22. This court has heard learned counsel for the parties and perused
the material on record.
23. The primary issue for consideration in this application is whether
the summoning order dated 27.03.2017 issued by the learned Judicial
Magistrate/Civil Judge (J.D.), Udham Singh Nagar warrants
interference by this Court under Section 482 Cr.P.C.
24. Section 482 Cr.P.C. reads as follows:"Nothing in this Code shall
be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under
this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice."
25. The scope of Section 482 Cr.P.C. has been enunciated by the
Supreme Court in numerous decisions. In State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335, the Supreme Court laid down the
following categories of cases where the extraordinary power under
6
2025:UHC:3048
Section 482 Cr.P.C. or Article 226 of the Constitution can be exercised
to quash proceedings:
(i) Where the allegations made in the First Information Report or the
complaint, even if they are taken at their face value and accepted
in their entirety, do not prima facie constitute any offence or
make out a case against the accused.
(ii) Where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not disclose a
cognisable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any offence and make out a case
against the accused.
(iv) Where the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an order
of a Magistrate as contemplated under Section 155(2) of the
Code.
(v)Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party;and
7
2025:UHC:3048
(vii) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal grudge.
26. In Indian Oil Corporation v. NEPC India Ltd., (2006) 6 SCC 736,
the Supreme Court cautioned that the power under Section 482 Cr.P.C.
is not to be exercised mechanically. The inherent power under Section
482 Cr.P.C. is intended to prevent the abuse of the process of the court
and to secure the ends of justice.
27. With these principles in mind, this court shall now proceed to
analyse the contentions advanced by the parties.
28. The applicants' primary contention is that the complaint filed by
respondent No. 2 is a retaliatory action to the cases filed by applicant
No. 1. However, the mere fact that there are other litigations between
the parties does not automatically render the complaint false or
frivolous. Each case must be judged on its own merits. In the present
case, respondent No. 2 has not only filed a detailed complaint but has
also got himself examined under Section 200 Cr.P.C., and two
witnesses have been examined under Section 202 Cr.P.C., all of whom
have narrated a consistent account of the incident.
29. The applicants also contend that they are residents of Bareilly,
Uttar Pradesh, and there was no occasion for them to visit Kichha,
Udham Singh Nagar, to commit the alleged offence. However, this is a
matter of evidence that can be best appreciated during the trial. The
distance between Bareilly and Kichha is not so vast as to make it
impossible for the applicants to travel there, especially considering the
familial relationship between the parties.
30. The most significant contention of the applicants is that the
learned Magistrate failed to follow the mandatory provision of Section
202 Cr.P.C. before issuing the summoning order. Section 202(1)
Cr.P.C., as amended by Act 25 of 2005 (w.e.f. 23.06.2006), makes it
8
2025:UHC:3048
mandatory for the Magistrate to postpone the issue of process where the
accused resides beyond the area in which he exercises jurisdiction, and
either inquire into the case himself or direct an investigation to be made
by a police officer or by such other person as he thinks fit.
31. The Supreme Court in Vijay Dhanuka& Ors. v. NajimaMamtaj&
Ors., (2014) 14 SCC 638, held that the amended provision under
Section 202(1) Cr.P.C. is mandatory in nature and is intended to protect
innocent persons from being harassed by false complaints. However, in
the present case, the Magistrate has recorded the statements of the
complainant under Section 200 Cr.P.C. and of two witnesses under
Section 202 Cr.P.C., which amounts to a preliminary inquiry as
contemplated under Section 202 Cr.P.C.
32. In National Bank of Oman v. Barakara Abdul Aziz, (2013) 2 SCC
488, relied upon by the applicants, the Supreme Court held that:
"The purpose of the amendment was to protect innocent persons
from harassment of being forced to appear before a court at a far-
off place from where they resided. The objective of the
amendment is to save the accused from harassment of a
complaint filed at a faraway place and to obviate misuse of
criminal process to harass the accused."
33. However, in the present case, though the applicants reside in
Bareilly, Uttar Pradesh, the alleged offence took place in Kichha,
Udham Singh Nagar, which falls within the jurisdiction of the learned
Magistrate.
34. The complainant has alleged that on 08.05.2016, the applicants
came to Kichha and committed the alleged offences there. In such a
situation, the Magistrate's territorial jurisdiction to try the offence
cannot be disputed, and the Magistrate has conducted an inquiry as
required under Section 202 Cr.P.C. by recording the statements of the
complainant and two witnesses.
9
2025:UHC:3048
35. Furthermore, the summoning order dated 27.03.2017 indicates
that the learned Magistrate considered the complaint, the statement of
the complainant under Section 200 Cr.P.C., and the statements of the
two witnesses under Section 202 Cr.P.C. before issuing the summons.
This satisfies the requirements of Section 202 Cr.P.C.
36. In Abhijit Pawar v. Hemant & Anr. (2017) 3 SCC 528, the
Supreme Court reiterated the importance of the mandatory inquiry
under Section 202 Cr.P.C. However, that was a case where no inquiry
or investigation was conducted before issuing the process. In the
present case, the Magistrate has conducted an inquiry by recording the
statements of the complainant and two witnesses.
ORDER
Upon consideration of the material on record and the legal
position, this Court is of the view that no case for interference is made out
under Section 482 Cr.P.C. The inherent power to quash proceedings must be
exercised sparingly and with circumspection, only to prevent abuse of the
process of the Court or to secure the ends of justice. The present case does
not fall within any of the seven categories enumerated by the Hon’ble
Supreme Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335,
that justify such intervention at the threshold. The summoning order does not
reflect any legal infirmity or procedural impropriety warranting interference.
Accordingly, the application under Section 482 Cr.P.C. is
dismissed.
However, it is made clear that the observations made herein are
confined to the adjudication of the present application and shall not influence
the merits of the trial. The learned trial court shall proceed independently and
uninfluenced by any of the views recorded in this order.
(Ashish Naithani J.)
Dated:15.04.2025
10
2025:UHC:3048
NR/
[ad_2]
Source link