Vikash Kr. Dubey @ Vikash Kumar Dubey v. 1.The State of Jharkhand. 2.Shrawan Ram
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 4809 of 2022 Vikash Kr. Dubey @ Vikash Kumar Dubey.... .. ... Petitioner(s) Versus 1.The State of Jharkhand. 2.Shrawan Ram ........... .. ... ...Opp. Party(s)
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ......... For the Petitioner(s) : For the State : : For the O.P. No.2 …... Mr. Sheo Kr. Singh, Advocate Mr. Shiv Shankar Kumar, APP Mr. Rajesh Kumar, Advocate 05/ 10.10.2023. Heard, learned counsel for the parties. 1. The instant Cr. M. P. has been filed for quashing the summoning order dated 11.11.2022 passed by learned ACJM, Nagar Untari, Garhwa in Complaint Case No.299 of 2022 whereby and whereunder learned Court below took cognizance of the offence under Sections 420, 452, 323, 384, 385, 386, 504, 506, 120B IPC against the petitioner. 2. The complaint has been filed against three named and one unknown accused persons. Accused no.1 is father in law, accused no.2 is mother in law and accused no.3 is the wife of the complainant. 3. The main allegation of the complainant is that under a criminal conspiracy, landed property with constructed house was forced to be purchased by the complainant in the name of accused no.3, with a view to mentally and physically harass the complainant and also committing robbery of valuable documents pertaining to land, educational certificates and bank deposits. 4. The statement of the complainant and his father has been recorded during enquiry and based on which, the impugned order has been passed and process has been issued against the petitioner. 5. It is submitted by learned counsel for the petitioner that the instant complaint is glaring example of misuse of process of the court. The complainant had earlier filed a divorce suit bearing Original Suit No.22 of 2021 against accused no.3 (Priti Devi) and one Akram Alam on the ground of adultery. In the said suit, this petitioner was appointed as an Advocate representing said Priti Devi (A-3) in because of which, he has been falsely implicated in the present case. 6. It is further submitted that in the entire complaint petition though there is no allegation against the petitioner and even he has not been named and further by after-thought, his name has been included in the statement under SA that he had also come with the accused no.4 in the house of the complainant and were waiting outside the house when the incidence took place. 7. Petitioner was acquainted with the complainant because he had filed attendance of the complainant and his wife (Priti Devi) before the Family Court, Palamau 2 in O.S. NO.22 of 2021 on 10.03.2021 and 25.03.2022. Despite being fully familiar with the petitioner, he had not been named and has been implicated with a view to wreak vengeance against him for his discharging his legal duty representing the accused no.3 in the divorce case. 8. It is submitted that there is no independent eyewitness to the incidence who has been examined in the enquiry. The mother of the complainant who is alleged to have been assaulted, has also not been examined during enquiry. 9. Learned APP for the State assisted by learned counsel for the O.P No.2 has defended the summoning order. It is submitted that the complainant was not acquainted with the petitioner and his role has been referred in Para-7 of the complaint petition wherein he has stated that unidentified person was instigating accused no.3 (Priti Devi) in the said incidence. The photograph of the 4th accused had been annexed with the complaint petition (with the signature of the advocate) which was part of the record. It is not disputed that the attendance had been filed before the learned Principal Judge, Family Court by the petitioner, but he had not been made as accused/ petitioner at the relevant time. 10. In the present case the petitioner who is an Advocate by profession and had represented the wife of complainant in a divorce suit appears to have been caught in the cross fire of litigation between the husband-and-wife little. Petitioner is not named in the FIR and in para-4 of the statement of the complainant it has been stated that he was sitting in a vehicle outside. Complainant is not a layperson, he is officer in the government and had previous round of litigation with his wife. Against this backdrop it appears highly inconceivable that he was completely unaware about the identity of the petitioner which prevented him to include his name in the complaint petition. Enquiry of complaint case has an object wherein the materials brought on record is subjected to judicial scrutiny. The decree of scrutiny differs and is not like that when the trial is concluded. Despite this there should be some cogent and plausible grounds to issue process and it cannot be mechanically issued only on bald averments in the complaint or on the statements made by the complainant .It has been held in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749. 26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the 3 subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution. Under the aforesaid facts and circumstance and for the reasons discussed above this court is of the view that it will be a gross abuse of process of court to permit the continuation of the instant criminal proceedings against the petitioner. The impugned order as well as the entire criminal proceeding against the petitioner is quashed. Criminal miscellaneous petition is allowed. (Gautam Kumar Choudhary, J.) Sandeep/ Uploaded.