Star Hospital Thr. Prop. Harun Rashid vs State Of U.P. & Another

A482(A)_6436_2015

Court No. – 50
Case :- APPLICATION U/S 482 No. – 6436 of 2015
Applicant :- Star Hospital Thr. Prop. Harun Rashid
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Rajesh Kumar Singh
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Karuna Nand Bajpayee,J.
This application under Section 482 Cr.P.C. has been filed seeking the
quashing of N.B.W. dated 5.6.2014 as well as entire criminal proceedings of
complaint case No.1096 of 2013, C.M.O. Kushinagar Vs. Star Hospital Fazil
Nagar, u/s 4(3), u/s 29 and Rule 9(4), Rule 10 (1-A), the Pre-conception and
Pre-Natel Diagnostic Techniques (Prohibition and Sex Selection) Act,
Readwith Rule 1996, P.S. Pataherwa, district Kushinagar, pending in the court
of C.J.M., Kushinagar at Padrauna.
Heard applicants’ counsel and learned AGA.
Entire record has been perused.
All the contentions raised by the applicants’ counsel relate to disputed
questions of fact. The court has also been called upon to adjudge the
testimonial worth of prosecution evidence and evaluate the same on the basis
of various intricacies of factual details which have been touched upon by the
learned counsel. The veracity and credibility of material furnished on behalf
of the prosecution has been questioned and false implication has been
pleaded.
The law regarding sufficiency of material which may justify the summoning
of accused and also the court’s decision to proceed against him in a given case
is well settled. The court has to eschew itself from embarking upon a roving
enquiry into the last details of the case. It is also not advisable to adjudge
whether the case shall ultimately end in conviction or not. Only a prima facie
satisfaction of the court about the existence of sufficient ground to proceed in
the matter is required.
Through a catena of decisions given by Hon’ble Apex Court this legal aspect
has been expatiated upon at length and the law that has evolved over a period
of several decades is too well settled. In the case of Chandra Deo Singh Vs.
Prokash Chandra Bose AIR 1963 SC 1430 the Apex Court had observed as
follows:
“The courts have also pointed out in these cases that what the magistrate has
to see is whether there is evidence in support of the allegations of the
complainant and not whether the evidence is sufficient to warrant a
conviction. The learned Judges is some of these cases have been at pains to
observe that an enquiry under Section 202 is not to be likened to a trial which
can only take place after process is issued, and that there can be only one
trial. No doubt, as stated in sub-section (1) of Section 202 itself, the object of
the enquiry is to ascertain the truth or falsehood of the complaint, but the
magistrate making the enquiry has to do this only with reference to the
intrinsic quality of the statements made before him at the enquiry which
would naturally mean the complaint itself, the statement on oath made by the
complainant and the statements made before him by persons examined at the
instance of the complainant.”
In the yet another case of Vadilal Panchal Vs. Dattatraya Dulaji
Ghadigaonker AIR 1960 SC 1113 the Hon’ble Supreme Court had expressed
the views in the following terms:
“Section 202 says that the magistrate may, if he things fit, for reasons to be
recorded in writing, postpone the issue of process for compelling the
attendance of the person complained against and direct an inquiry for the
purpose of ascertaining the truth or falsehood of the complaint; in other
words, the scope of an inquiry under the section is limited to find out the truth
or falsehood of the complaint in order to determine the question of the issue
of process. The inquiry is for the purpose of ascertaining the truth or
falsehood of the complaint; that is, for ascertaining whether there is evidence
in support of the complaint so as to justify the issue of process and
commencement of proceedings against the person concerned. The section
does not say that a regular trial for adjudging the guilt or otherwise of the
person complained against should take place at the stage; for the person
complained against can be legally called upon to answer the accusation made
against him only when a process has issued and he is put on trial.”
In the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3
SCC 736 the Hon’ble Apex Court had held as follows:
“The magistrate has been given an undoubted discretion in the matter and the
discretion has to be judicially exercised by him. Once the magistrate has
exercised his discretion it is not for the High Court, or even this Court, to
substitute its own discretion for that of the magistrate or to examine the case
on merits with a view to find out whether or not the allegations in the
complaint, if proved, would ultimately end in conviction of the accused. These
considerations, in our opinion, are totally foreign to the scope and ambit of
an inquiry under Section 202 of the Code of Criminal Procedure which
culminates into an order under Section 204 of the Code. Thus it may be safely
held that in the following cases an order of the magistrate issuing process
against the accused can be quashed or set aside:
(1) where the allegations made in the complaint or the statements of the
witnesses recorded in support of the same taken at their face value make out
absolutely no case against the accused or the complaint does not disclose the
essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and
inherently improbable so that no prudent person can ever reach a conclusion
that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the magistrate in issuing process is
capricious and arbitrary having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects, such as, want
of sanction, or absence of a complaint by legally competent authority and the
like.
The cases mentioned by us are purely illustrative and provide sufficient
guidelines to indicate contingencies where the High Court can quash
proceedings.”
The Apex Court decisions given in the case of R.P. Kapur Vs. State of
Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan
Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of
illustration which may justify the quashing of a complaint or charge sheet.
Some of them are akin to the illustrative examples given in the above referred
case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC
736. It was observed by the Hon’ble Apex Court in Bhajan Lal’s case as
follows:-
“The following categories can be stated by way of illustration wherein the
extra-ordinary power under Article 226 or the inherent powers under Section
482 of the Code of Criminal Procedure can be exercised by the High Court
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 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.
(4) where the allegations in the FIR 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 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.
(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 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.”
Illumined by the case law referred to herein above, this Court has adverted to
the entire record of the case.
The submissions made by the applicants’ counsel call for adjudication on pure
questions of fact which may be adequately adjudicated upon only by the trial
court and while doing so even the submissions made on points of law can also
be more appropriately gone into by the trial court in this case. This Court does
not deem it proper, and therefore cannot be persuaded to have a pre-trial
before the actual trial begins. A threadbare discussion of various facts and
circumstances, as they emerge from the allegations made against the accused,
is being purposely avoided by the Court for the reason, lest the same might
cause any prejudice to either side during trial. But it shall suffice to observe
that the perusal of the complaint, and also the material available on record
make out a prima facie case against the accused at this stage and there appear
to be sufficient ground for proceeding against the accused. I do not find any
justification to quash the complaint or the summoning order or the
proceedings against the applicant arising out of them as the case does not fall
in any of the categories recognized by the Apex Court which may justify their
quashing.
The prayer for quashing the same is refused as I do not see any abuse of the
Court’s process either.
However, a request has been made by the counsel that as it is being desired by
the accused to obtain bail after surrendering in the court below, a protective
direction may be issued to the lower court to decide the proposed bail
application on the same day in the light of the law laid down in Full Bench
decision of Amarawati and others Vs. State of U.P. 2004(57), ALR 290.
It may be observed that the law regarding the hearing of bail applications on
the same day and all its related aspects have been comprehensively dealt with
in the aforesaid Full Bench decision of Amarawati and others Vs. State of
U.P. 2004(57), ALR 290 relied upon by the counsel which was also approved
by the Hon’ble Supreme Court in the case of Lal Kamlendra Pratap Singh
Vs. State of U.P. 2009(3) ADJ 322(SC). All the courts must endeavour to
decide the bail applications on the same day in suitable cases, if it is possible
for them to do so depending upon the peculiar facts and circumstances of the
case in question. This is a matter of lower court’s discretion which they must
exercise judiciously in appropriate cases.
Above mentioned Full Bench decision of this Court and the decision of
Hon’ble Apex Court are binding on the lower courts. They must be followed
in letter and spirit. There is no need to pass separate orders in this regard.
However, in the peculiar facts and circumstances of the case it may be
observed that if after surrendering in the court below an application for bail is
moved on behalf of the accused within three months from today, the same
shall be decided in accordance with law as has been laid down in
aforementioned cases.
No coercive measures shall be taken or given effect to in the aforesaid period
or till the date of appearance of the accused in the court below, whichever is
earlier.
It is made clear that no application for extension of time shall be entertained if
this order is not availed by the accused in the stipulated period of time.
It is further clarified that for the present this order has been passed only with
regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has
been moved in this Court.
With the aforesaid observations this application is finally disposed off.
Order Date :- 11.3.2015
Rkb

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Author: savedaughters19

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