Court No. - 44
Case :- APPLICATION U/S 482 No. - 18096 of 2018 Applicant :- Ashutosh Kumar Srivastava And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Om Prakash Gupta Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Om Prakash Gupta, learned counsel for the applicants, the learned A.G.A. for the State and Mr. R.B. Yadav, Advocate, who has appeared on behalf of opposite party no.2.
This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 30.6.2011, passed by the Chief Judicial Magistrate, Gorakhpur in Complaint Case No. 3731 of 2011 (Deva Datta Kumar Vs Surendra Kumar Srivastava and others) under Sections 384, 323, 504, 506 IPC, P.S. Kotwali, District Gorakhpur as well as the entire proceedings of above mentioned complaint case.
Normally, this court would not have interfered in this application as it has been filed after an expiry of period of more than six years from the date of passing of the summoning order dated 30.6.2011. As the laches in filing the present application has been sufficiently explained in paragraphs 23 and 29 of the affidavit, the laches in filing the present application are ignored.
Mr. R.B. Yadav, Advocate, who has appeared on behalf of opposite party no.2, invited the attention of the court to the order dated 27.3.2018. A perusal of the same will go to show that in criminal misc. application No. 12270 of 2012 (Surendra Kumar Srivastava and another Vs. State of U.P. and another), filed by the other co-accused persons, this court has passed the following order:-
"Heard Sri Om Prakash Gupta, learned counsel for the applicants, Sri R.B.Yadav, learned counsel for the o.p. no. 2, learned Additional Government Advocate for the State and perused the record of the case.
This application under section 482 Cr.P.C. has been filed for quashing the summoning order dated 30.6.2011 as well as proceedings of the complaint case no. 3731 of 2011 (Deva Datta Vs. Surendra Kumar Srivastava and others) under Section 384, 323, 504, 506 I.P.C. P.S.- Kotwali District- Gorakhpur pending in the court of learned A.C.J.M. Court No. 16, Gorakhpur.
From the perusal, it cannot be said no case is made out against the applicants. Most of the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this court under Section 482 Cr.P.C. Only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process of miscarriage of justice.
Accordingly, prayer of the applicants is refused.
However, in view of the submissions made by the learned counsel for the applicants, it is provided that if the applicants move an application for discharge through counsel within two weeks from today, the same shall be disposed of by the trial court by speaking order in accordance with law within two weeks thereafter. For the period of four weeks from today or till the disposal of the application, whichever is earlier, no coercive action shall be taken against them.
With the aforesaid direction, this application is disposed of."
Accordingly, the present application is also disposed of in terms of the order passed on 27.3.2018 in criminal misc. application No. 12270 of 2012 (Surendra Kumar Srivastava and another Vs. State of U.P. and another).
Order Date :- 29.5.2018 Arshad