High Court of Uttarakhand

Rajendra Singh Bhandari Vs. State of Uttarakhand and Ors.

MANU/UC/0215/2020

21.09.2020

Criminal

At stage of cognizance and summoning, merits of the case cannot be tested and it is impermissible for the Court to enter into the factual arena to adjudge the correctness of the allegations

Present application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) to quash the Charge Sheet in Case Crime registered with Police Station and cognizance order passed by the learned Chief Judicial Magistrate, under Section 125 of the Representation of the People Act, 1951 (' the Act, 1951') along with entire proceedings, pending in the court of Chief Judicial Magistrate.

Section 482 of the CrPC envisages three circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under the Code, or, to prevent abuse of the process of any Court, or, to secure the ends of justice." This inherent jurisdiction though wide should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice. While exercising jurisdiction under this section, the Court does not function as a Court of Appeal or Revision. Therefore, quashing of charge-sheet or setting aside the cognizance order on the appreciation of evidences is not justified.

In Lee Kun Hee and others vs. State of U.P. and others, the Hon'ble Supreme Court held that, the Court in exercise of its jurisdiction under Section 482 of the CrPC cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record.

In the instant case, cognizance has been taken in the offence punishable under Section 125 of the Act, 1951. It is the fundamental duty of every citizen to promote harmony and the spirit of common brotherhood and fraternity amongst all the people of India transcending religious, linguistic and regional or sectional diversities. For fair and peaceful election, during the election campaign, party or candidate should not indulge in any activity which may create mutual hatred or cause tension between different classes of the citizens of India on ground of religion, race, caste, community or language.

In the present case, the learned Chief Judicial Magistrate took the cognizance after considering the evidences available on the record. It is well settled that at the time of considering of the case for cognizance and summoning, merits of the case cannot be tested and it is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations. This Court would not also examine the genuineness of the allegations since this Court does not function as a Court of Appeal or Revision, while exercising its jurisdiction under Section 482 of the CrPC.

In present matter, it cannot be said that, there are no allegations against the applicant. Learned counsel for the applicant could not able to show at this stage that, allegations 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 applicant. The use of expression "promotes or attempts to promote" in Section 125 of the Act, 1951 shows that, there has to be mens rea on the part of the accused to commit the offence of promoting disharmony amongst different religions under Section 125, whereas, the case of the applicant is that this matter is launched by the political opponents. These allegations are required to be tested only at the time of trial. Present Court cannot hold a parallel trial in an application under Section 482 of the of the CrPC.

Therefore, in the light of the facts and circumstances of the present case, the present case does not fall in any category set out in the judgment of State of Haryana and others Vs. Bhajan Lal and others. Accordingly, the prayers for quashing the charge-sheet and setting aside the cognizance order along with entire proceedings are refused. The application, filed under Section 482 of the CrPC, is dismissed.

Relevant

State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. MANU/SC/0115/1992
, Lee Kun Hee and others vs. State of U.P. and others, MANU/SC/0076/2012

Tags : Cognizance Proceedings Quashing of

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