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Bal Govind Tiwari and Others. Vs State of U.P. and Another.

Bal Govind Tiwari and Others. vs State of U.P. and Another.

Type Court Judgment Court Allahabad Decided Jun 24, 2010
~7 min read
https://sooperkanoon.com/case/911067

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Citation
Court
Allahabad High Court
Judge
Decided On
Case Number
APPLICATION U/S 482 No. - 21451 of 2010.
Subject
Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Prayer: Petition filed seeking for a Writ of Mandamus, directing the 1st and 2nd Respondents herein to Release the goods Viz., 103 Units of old and Used Digital Multifunction Print & Copying Machines with Standard Accessories, imported vide Bill of Entry No.793351, dated 26.02.2011, under Free as Second Hand Capital...

Key legal issue
Criminal
Acts & sections
Indian Penal Code (IPC), 1860 - Sections 323, 504, 506 ; Code of Criminal Procedure(Cr.P.C.), 1973 - Sections 156(3), 202, 155(2), 156 (1), 202 ;

Parties & Advocates

Appellant / Petitioner

Bal Govind Tiwari and Others.

Advocate Sanjay Srivastava, Adv.

Respondent

State of U.P. and Another.

Advocate Govt, Adv.

Legal References

Acts
Indian Penal Code (IPC), 1860 - Sections 323, 504, 506 ; Code of Criminal Procedure(Cr.P.C.), 1973 - Sections 156(3), 202, 155(2), 156 (1), 202 ;

Excerpt

prayer: petition filed seeking for a writ of mandamus, directing the 1st and 2nd respondents herein to release the goods viz., 103 units of old and used digital multifunction print & copying machines with standard accessories, imported vide bill of entry no.793351, dated 26.02.2011, under free as second hand capital goods in terms of para 2.17 read with definitions under 9.12 of the foreign trade policy 2009-2014 without imposing any restriction in the absence of specific restriction in para 2.17 of foreign trade policy and in para 2.33 of hand book of procedures 2009-2014 and any notification by 3rd respondent......applicants that opposite party no. 2 has filed an application under section 156(3) cr.p.c. on 13th april, 2009 before the learned magistrate and the learned magistrate treated that application as complaint case. opposite party no. 2 was examined under section 200 cr.p.c. and ram samujh and smt. rampati were examined by the learned magistrate under section 202 cr.p.c. and thereafter learned magistrate summoned the applicants on 11.02.2010 for the offences under section 323, 504, 506 i.p.c. it is further contended on behalf of the applicants that the opposite party no. 2 stated in complaint as well as in her statement under section 200 cr.p.c. that the applicants beaten her but there could not be found any injury on the person of the opposite party no. 2 as no injury report is produced by the opposite party no. 2. on 11.03.2009 an f.i.r. was lodged by applicant no. 8 for the offence under sections 323, 504, 506 i.p.c. against o.p. no. 2, maya devi nishad and one more person namely dilip chaurasiya, regarding the occurrence alleged to have been occurred on 02.03.2009. thus the o.p. no. 2 filed the complaint in question with malafide intention to make pressure by this counter-blast complaint against the applicants while the complaint does not disclose any offence against the applicants.2. learned counsel for the applicants placed reliance on the law laid down by the hon'ble supreme court in the case of m/s. eicher tractor ltd. and others v. harihar singh and another, reported in 2009(64) acc 296 and in the case of mahindra & mahindra financial services ltd. and others v. rajiv dubey, reported in 2009 (64) acc 669.3. the learned aga submitted that there is no error in the order passed by learned lower court thereby summoning the accused/applicants for the alleged offences which are found, prima facie, made out against them as per complaint, statements of complainant under section 200 cr.p.c. and the statements of witnesses recorded under section 202 cr.p.c. thus.....

Full Judgment

1. I have heard learned counsel for the applicants as well as learned A.G.A. and perused the records. It is contended on behalf of the applicants that opposite party No. 2 has filed an application under Section 156(3) Cr.P.C. on 13th April, 2009 before the learned Magistrate and the learned Magistrate treated that application as complaint case. Opposite party no. 2 was examined under Section 200 Cr.P.C. and Ram Samujh and Smt. Rampati were examined by the learned Magistrate under Section 202 Cr.P.C. and thereafter learned Magistrate summoned the applicants on 11.02.2010 for the offences under Section 323, 504, 506 I.P.C. It is further contended on behalf of the applicants that the opposite party No. 2 stated in complaint as well as in her statement under section 200 Cr.P.C. that the applicants beaten her but there could not be found any injury on the person of the opposite party No. 2 as no injury report is produced by the opposite party no. 2. On 11.03.2009 an F.I.R. was lodged by applicant No. 8 for the offence under Sections 323, 504, 506 I.P.C. against O.P. No. 2, Maya Devi Nishad and one more person namely Dilip Chaurasiya, regarding the occurrence alleged to have been occurred on 02.03.2009. Thus the O.P. No. 2 filed the complaint in question with malafide intention to make pressure by this counter-blast complaint against the applicants while the complaint does not disclose any offence against the applicants.

2. Learned counsel for the applicants placed reliance on the law laid down by the Hon'ble Supreme Court in the case of M/s. Eicher Tractor Ltd. And others v. Harihar Singh and another, reported in 2009(64) ACC 296 and in the case of Mahindra & Mahindra Financial Services Ltd. and others v. Rajiv Dubey, reported in 2009 (64) ACC 669.

3. The learned AGA submitted that there is no error in the order passed by learned lower Court thereby summoning the accused/applicants for the alleged offences which are found, prima facie, made out against them as per complaint, statements of complainant under Section 200 Cr.P.C. and the statements of witnesses recorded under Section 202 Cr.P.C. Thus there is no substance in this application which is liable to be rejected. In the light of the contentions of both the parties, I have gone through the entire facts and circumstances on record and the law as is referred above on behalf of the applicants.

4. As is the law laid down by the Hon'ble Supreme Court, no doubt, no one should be summoned if the following conditions as is laid down by the Hon'ble Supreme Court in the case of State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604, in which held as follows: "............ 108. In the back drop of the interpretation of the various relevant provisions of the Code under Chapter XIV and the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. 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.

2. Where the allegations in the first information report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable 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.

3. Where the uncontroverted allegations made in the F.I.R. 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.

4. 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.

5. Where the allegations made in the F.I.R. 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.

6. 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.

7. Where a criminal proceeding is manifestly attended with malafide 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."

5. The perusal of the facts of the cases mentioned above citations remained under the scrutiny of the Hon'ble Supreme Court are entirely of different nature in comparision of this case in hand. In those cases the facts were found almost relative to the bounce of cheque and the counter-blast complaint or F.I.R. were found directly related to the occurrence of bounce of the cheques while in this case in hand, there is no such situation arised. Smt. Sharmila, the applicant no. 8, no doubt, had lodged an F.I.R. against Maya Devi Nishad and the Dilip Chaurasya for an occurrence of 02.03.2009 for the offence under Section 323, 504, 506 I.P.C., but the complaint case no. 7283 of 2009 under Section 323, 504, 506 I.P.C. instituted by Smt. Maya Devi Nishad relates to the occurrence dated 29.03.2009, in which all the accused persons/applicants have been stated committing the offence under Section 323, 504, 506 I.P.C. thereby beating the complainant and threatening to dire consequences if any complaint is made by the complainant to the police. Such facts not only narrated in the complaint rather deposed on oath too by Smt. Maya as per provisions under Section 200 Cr.P.C. and two other witnesses under Section 202 Cr.P.C. disclosing the prima facie case for the offence under section 323, 504, 506 I.P.C. making out on the face value of the evidence on record. So far as the question of not filing any injury report is concerned, that is the matter of evidence which may be looked into at the time of trial. The law as is aforesaid cited by the learned counsel for the applicant itself shows that where the allegations made in the F.I.R. 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, summons should not be issued while here in this case in hand the allegations made out in the complaint as well as the evidence adduced by the complaint, are of such nature that if they are taken at their face value and accepted in their entirety, it very well prima facie constitutes the offence under Section 323, 504, 506 I.P.C. , for which the learned Magistrate has rightly summoned the accused persons/applicants and there is no substance in this application to quash the complainant case under inherent power of this Court under Section 482 Cr.P.C. Therefore this application deserves to be dismissed and is hereby dismissed accordingly.

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