Court No. - 87
Case :- APPLICATION U/S 482 No. - 46721 of 2019
Applicant :- Aakash
Opposite Party :- State Of Up And Anr Counsel for Applicant :- Zafeer Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the order dated 25.04.2019 passed by Session Judge, Moradabad in Criminal revision No. 78 of 2019 (Aakash Kumar Vs. U.P. State and Another) as well as oder dated 16.03.2019 and 12.05.2015, passed by Additional Chief Judicial Magistrate, Moradabad in Complaint Case NO. 3955 of 2014 (Smt. Radh Vs. Aakash) under Sections 354, 354Kha, 504, 506 and 452 of IPC Police Station Civil Lines, District- Moradabad.
Learned counsel for the applicants submits that the applicant is innocent and has been falsely implicated in the present case; applicant was not present at the time and place of occurrence and plea of alibi raised by the applicant, at the stage of considering the discharge application, has not been accepted by the trial court. Learned counsel further submits that the impugned order is illegal and liable to be quashed.
Learned A.G.A. has vehemently opposed and submits that the applicant has not appeared before the trial court despite the summoning order passed by the trial court. Learned A.G.A. further submits that at the stage of considering the discharge application, the defence of the accused/applicant cannot be considered and it is settled principle of law that at the time of framing charge or considering the discharge application the observation of the prosecution evidence as well as merit and demerit of the case cannot be adjusted.
Hon'ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana & Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843, Sav. Kamal Shivaji Pokemaker Vs. State of Maharashtra AIR (2019) SC 847 after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
It is settled principle of law as laid down by the Hon'ble Supreme Court in State of Bihar Vs. Ramesh CRLJ 1977 SC 1607 and in Superintendent & Remembrancer Of Legal Affairs West Bengal Vs. Anil Kumar Bhunja & Others AIR 1980 SC 52 that at this stage of framing of charge or considering the discharge application, defence of plea of alibi cannot be considered. At this stage the truthfulness, veracity and effect of the prosecution evidence are not required to be meticulously adjudged and no weight to be attached to the probable defence of the accused.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicant. All the submissions made by the learned counsel for the applicant relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings is refused.
However, as prayed at this stage, if applicants appear or surrender before the Court concerned within 30 days from today and apply for bail in the aforesaid case, the prayer shall be considered as expeditiously as possible preferably same day by the Court below in accordance with law.
With the aforesaid direction/observation, the instant application is disposed off.
Order Date :- 17.12.2019 S.K.