Court No. - 69
Case :- APPLICATION U/S 482 No. - 34266 of 2008 Applicant :- Ashfaq Hussain And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Dharmendra Singhal,Azim Ahmad Kazmi Counsel for Opposite Party :- Govt. Advocate,Anil Srivastva
Hon'ble Vivek Kumar Singh,J.
Heard Sri Dharmendra Singhal, learned Senior counsel assisted by Sri Azim Ahmad Kazmi, learned counsel for the applicant and Sri Anil Srivastava, learned counsel for the opposite party no.2 and Sri Sanjay Singh, learned A.G.A.-I for the State-respondent.
This application under Section 482 Cr.P.C. has been preferred by the applicants with a prayer to quash the impugned summoning order dated 12.11.2008 and proceedings of Special Trial No.127 of 2008 (Smt.Habibun Nissa vs. Ashfaq Hussain and others), under sections 392, 447, 448 I.P.C. Police Station Baberu, District Banda, pending in the court of Special Judge (D.A.A.) Banda.
Sri Dharmendra Singhal, learned Senior Advocate appearing on behalf of the applicants assailing the impugned summoning order dated 12.11.2008 submitted that in this case after investigation final report was submitted in favour of the applicants. The said final report was challenged by the opposite party no.2 before this Court by filing an Application u/s 482 No.12440 of 2008, which was disposed of vide order dated 04.06.2008 with the direction that if the applicant (opposite party no.2 in this case ) files fresh application before the concerned magistrate, the same shall be decided by the concerned magistrate in accordance with law. Pursuant to said order dated 04.06.2008, the opposite party no.2 filed a protest simplicitor, which was allowed by the court below and the applicant was summoned to face trial by the summoning order dated 12.11.2008, which is under challenge in this application.
On the said facts, main substratum of submission of the learned counsel for the applicants is that accepting the material evidence on record, no prima-facie offence is made out against the applicants, as the basic ingredients for constituting an offence under sections 392, 447 and 448 I.P.C. are lacking. Further submission is that for the offence under section 448 I.P.C. prior notice under section 441 I.P.C. is mandatory which has not been done in this case.
Learned counsel for the opposite party no.2 as well as learned A.G.A. for the State-respondent that the order impugned has been passed by the learned Special Judge, D.A.A., Banda after considering the entire material available on record, which suffers from no illegality or infirmity in law and calls no interference by this Court.
After hearing the learned counsel for the applicant learned A.G.A., and after perusing the order impugned as well as averments made in the present application, this Court is of the opinion, that the arguments as raised by learned counsel for the applicant has substance.
Accordingly, the summoning order dated 12.11.2008 and proceedings of Special Trial No.127 of 2008 (Smt.Habibun Nissa vs. Ashfaq Hussain and others), under sections 392, 447, 448 I.P.C. Police Station Baberu, District Banda, pending in the court of Special Judge (D.A.A.) Banda is hereby set aside with the liberty to the applicant to file an appropriate application before the concerned Court below and if such an application is filed, the same shall be considered and disposed of as expeditiously, as possible, in accordance with law, preferably within a period of fifteen days thereafter.
With the aforesaid directions, this application is finally disposed off.
Order Date :- 25.9.2019 Dev/-