(Ranjan Gogoi and L. Nageswara Rao, JJ.)
Alka Bapu Gund __________________________________ Appellant
v.
Prakash Kanhaiyalal Kankaria and Ors. _____________ Respondent(s)
Criminal Appeal No. 10 of 2017 [Arising out of Special Leave Petition (Criminal) No. 8221/2015], decided on January 3, 2017
The Order of the court was delivered by
Order
1. Leave granted.
2. We have heard the learned counsel for the appellant. None has appeared on behalf of the respondents despite due service of notice.
3. The challenge in this appeal is against the order of the High Court dated 24th December, 2014 by which the process issued against the accused respondents on the private complaint filed by the wife of the deceased Bapu Nivrutti Gund has been interfered with by the High Court.
4. We have taken note of the facts including the final report submitted by the Investigating Agency to the effect that there was insufficient evidence/material to implicate the accused respondents. The complaint in question was filed by the wife of the deceased after submission of the aforesaid final report by the Investigating Agency. Seven witnesses were examined in the complaint proceedings and only thereafter cognizance was taken and process was issued against the accused respondents.
5. The High Court in the impugned judgment seems to have embarked on a virtual trial of the case though it was entertaining an application under Section 482 Cr.P.C./Article 227 of the Constitution of India for quashing of the order taking congnizance and the complaint as a whole. The probity of the evidence tendered by the complainant’s witnesses prior to issuance of process was even gone into by the High Court.
6. Having regard to the settled principles of law, we do not consider the approach of the High Court to be correct in law. At the stage at which the case was poised for consideration, it was beyond the jurisdiction of the High Court to have embarked upon the exercise that was undertaken. As the same appears to be in clear excess of jurisdiction, we set aside the order of the High Court and direct that the complaint proceedings against the accused respondents be continued from the stage where the same was interdicted.
7. Consequently and for the reasons aforesaid we allow the appeal and set aside the order of the High Court.
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