Court No. - 29
Case :- APPLICATION U/S 482 No. - 26543 of 2010 Applicant :- Ashwani Parashar And Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- R.P.Shukla,M.K.Upadhyay Counsel for Opposite Party :- Govt. Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. By way of this petition, the petitioners have challenged summoning order dated 16.6.2010.
2. The main thrust of submission of Sri M.K. Upadhyay is that the complainant has filed a complaint case no.761 of 2009 registered against one of the petitioners. Summoning order can be said to be bad.
3. The factual scenario as it emerges is that the petitioners have been arrayed as accused in complaint case no.761 of 2009 as having committed offence under Sections 452/504/506/323 IPC in P.S. Atmadadaula, District Agra. The Chief Judicial Magistrate issued summoning order dated 16.6.2010 under Sections 452/ 504/506/323/120-B IPC.
4. It is this order which is mainly under challenge and the quashment of entire proceeding in complaint case no.761 of 2009.
5. The First Information Report discloses a cognizance offence. Opposite party no.2 filed a complaint case no.761 of 2009 against the applicants on 30.7.2009 regarding the incident dated 20.7.2009 at about 9.00 p.m. on wholly illegal, arbitrary and mala fide grounds.
6. It is submitted by learned counsel that in the deposition it was not disclosed regarding tearing of clothes of wife of the complainant. Rinku, son of Paras Nath, gave his deposition under Section 200 Cr.P.C. He also did not disclose about tearing of clothes. It is submitted that no F.I.R. was sent of the incident which took place on 20.7.2009. It is only with a view to harass the petitioner that a complaint has been lodged. The parties are enter related with each others and there is a dispute about some property and, therefore, as a counterblast this complaint has been lodged. Sri Vivek Kumar was even arrested by the police on the basis of F.I.R. in case crime no.499 of 2009 and the petitioners are innocent people.
7. The investigation having been completed, the crime having been registered way back in 2009, equity does not appear to be in favour of the petitioners. The jurisdiction of this Court under Section 482 of Cr.P.C. can be invoked as earlier outlined by Division Bench at Lucknow of this Court in Misc. Bench No.3808 of 2017 (Anil Kumar Singh and another Vs. State of U.P. and others), decided on 17.2.2017. Now, it would be better to reproduce relevant portion of paragraph no.6 of the said judgement:-
"6. We have considered the contention of learned counsel for the petitioner(s), in context of the material/pleadings relied on by the petitioner(s), in context of judgment rendered by Hon'ble Supreme Court of India in Rajiv Thappar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. In Rajiv Thappar's case (supra), the following (relevant portion) has been held:-
29. ...........................................
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:
30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant?
30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
(Emphasised by us)
30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.?”
8. This Court is of the considered opinion that the material/pleadings on which learned counsel for the petitioner(s) has relied, is not such as would rule out and displace the assertions contained in the charges/ allegations levelled against the accused; and the material produced is not of sterling and impeccable quality as would persuade reasonable person to dismiss and condemn the actual basis of the accusation as false.
9. It has given cogent reason for summoning the accused after giving its well reasoned order. In view of the judgment in the case of Avadhutanand Giri @ Swami Avadhutanand Giri @ Mahant Swami Avadhutanand Giri Vs. State of U.P. and another, 2018 (10) ADJ 231, it cannot be said that the order suffers from any finding of non-
application of mind.
10. The interest of justice in this matter would be served if the petitioners, who are before this Court since 2010, if has not been enlarged on bail and if they pray for bail, the learned Judge may consider the same as expeditiously as possible. However, they shall apply for same not later than 31.12.2018.
11. Under the circumstances, I do not find any ground to interfere in the extra ordinary jurisdiction of this Court.
12. They may appear on or before 28th December, 2018. Till they appear, no coercive action shall be taken as there was stay of proceedings till date.
13. The petition is dismissed. Stay, if any, is vacated.
Order Date :- 30.11.2018 Irshad