Court No. - 34
Case :- APPLICATION U/S 482 No. - 2126 of 2004 Applicant :- Amarjeet Prasad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Dileep Kumar Srivastava Counsel for Opposite Party :- Govt. Advocate,Jitendra Pratap Singh,R.K. Ojha,Santosh Kumar Dwivedi,V.K. Gupta
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Dileep Kumar Srivastava, learned counsel for applicant and learned A.G.A. for State of U.P.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash charge sheet No. 27.10.2003 in Case No. - C.6 of 2003, under Sections 418, 419, 420, 468, 469, 471, 474 IPC, Police Station Ahirauli Bazar, District Kushi Nagar, pending in Court of Judicial Magistrate,Kasya, District Kushi Nagar.
3. Applicant has been charged vide charge sheet dated 27.10.2003. It is contended that under Section 28 of Society Registration Act, 1860 (hereinafter referred to as "Act, 1860"), no Magistrate inferior to class-I shall take a cognizance. Section 28 of Act, 1860 reads as under:
"28. Procedure:- No Court inferior to that of a Magistrate of the first class shall try an offence punishable under this Act nor shall cognizance of any such offence be taken except on a complaint made by the Registrar or any other person authorized in writing by him by general or special order in that behalf."
4. We find that Section 28 of Act, 1860 is applicable to a case where an offence under Act, 1860 is to be seen, but in this case applicant has been charged of various offences punishable under IPC. Section 28 of Act 1860 is not applicable to the case in hand.
5. Further, at the stage of charge sheet, Court concerned has to examine only investigation and documents collected by Police, who submitted charge sheet and defence will be examined during trial when defence is adduced by both the parties.
6. Similarly, while considering a prayer for quashing of charge sheet in application under Section 482 Cr.P.C., this Court also cannot examine any defence of accused, which has yet to be placed before Court below. Stage of placing defence of accused does not arise at the stage of charge sheet and, therefore, this Court also will not examine such defence at this stage.
7. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.” (Emphasis added)
8. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
9. In view thereof, I do not find any illegality or infirmity in impugned charge sheet. This application lacks merit and is accordingly dismissed.
10. Interim order, if any, stands vacated.
Order Date :- 30.9.2019 Ravi Prakash