Court No. - 83
Case :- APPLICATION U/S 482 No. - 6612 of 2021 Applicant :- Ashish And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Mishra Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Sanjay Mishra, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging order dated 19.03.2020 passed by Chief Judicial Magistrate, Aligarh in Case No.369/12 of 2019, (Rajesh Vs. Raunak and Others), whereby Chief Judicial Magistrate, Aligarh in exercise of jurisdiction under Section- 190(1)(b) Cr.P.C. has rejected the police report (final report) dated 16.08.2019 submitted in Case Crime No.0071 of 2019, under Sections- 498A, 304B, 504, 506 I.P.C. and Sections- 3/4 D.P. Act, Police Station- Chharra, District- Aligarh. Chief Judicial Magistrate, Aligarh had further directed that the case shall proceed as a state case. He accordingly, took cognizance of offence under Sections- 498A, 304B, 504, 506 I.P.C. and Sections- 3/4 D.P. Act and consequently, summoned the accused including the applicants herein.
Learned counsel for applicants contends that order impugned in present application is manifestly illegal and without jurisdiction. He contends that after filing of protest petition against police report (final report) submitted by police, court below ought to have treated the protest petition filed by first informant/opposite party-2 as a complaint and accordingly court below ought to have proceeded with the matter as a complaint case. However, court below has given a complete go by to aforesaid procedure and has erroneously taken cognizance upon police report (final report) by placing reliance upon Section- 190(1)(b) Cr.P.C. It is thus urged that impugned order passed by court below cannot be sustained in law and fact and, therefore, liable to be quashed by this Court. It is also contended that applicants are jeth and jethani of the deceased and, therefore, charges under Sections- 498A, 304B, 504, 506 I.P.C. and Sections- 3/4 D.P. Act cannot be levelled against them. On the aforesaid premise, it is thus urged that impugned order passed by court below being manifestly illegal and without jurisdiction is liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that what should be the procedure to be followed by Courts upon submission of police report in terms of Section 173(2) Cr.P.C. now stands crystalized by the Supreme Court in Vishnu Kumar Tiwari Vs. State of U.P., (2019) 8 SCC 27. It is thus submitted that submission of police report (final report) is not exclusive proof of innocence of accused. In case the Court upon perusal of police report and the papers accompanying police report comes to the conclusion that evidence against accused does exist on record, then in that eventuality Court can take cognizance under Section 190(1)(b) Cr.P.C. From perusal of impugned order, it is clear that court below upon examination of police report and documents accompanying police report has recorded a categorical finding that evidence does exists against accused regarding the alleged crime. As such, no illegality has been committed by court below. In view of above, learned A.G.A. vehemently submits that present application be dismissed.
When confronted with above, learned counsel for applicants could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for State, upon perusal of material on record and looking into the facts of the case, at this stage, it cannot be said that no offence under Sections- 498A, 304B, 504, 506 I.P.C. and Sections- 3/4 D.P. Act is made out against applicants. Court below has proceeded to pass impugned order on the basis of material on record. Learned counsel for applicants has failed to establish that court below has committed a jurisdictional error or has exercised its jurisdiction with material irregularity. Submissions urged by learned counsel for applicants in challenge to the impugned order already stand settled in the case of Vishnu Kumar Tiwari (supra). Further, submission urged at the Bar that no offence under Sections- 498A, 304B, 504, 506 I.P.C. and Sections- 3/4 D.P. Act is made out against applicants as they are jeth and jethani of deceased, is the disputed defence of applicants, which cannot be adjudicated upon by this Court in exercise of it's jurisdiction under section 482 Cr.P.C. This Court cannot appraise and appreciate evidence to record a finding one way or other. Same can be done by trial court only upon trial of applicants in above noted criminal case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
In view of above, present application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 21.9.2021 Saif