Court No. - 34
Case :- APPLICATION U/S 482 No. - 1113 of 2001
Applicant :- Diwan Giri And Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Usha Srivastava,Vinod K. Srivastava
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
Re: Criminal Misc. Delay Condonation Application No. 378337 of 2014
1. This is an application seeking condonation of delay in filing recall/restoration application.
2. Heard.
3. Cause shown is sufficient.
4. Delay in filing recall/restoration application is hereby condoned.
5. The application is accordingly allowed.
Re: Criminal Misc. Recall/Restoration Application No. 378339 of 2014
1. This is an application seeking recall of order dated 17.05.2012.
2. Cause shown for non-appearance is sufficient.
3. Order dated 17.05.2012 is hereby recalled.
4. The application is accordingly allowed.
Order Date :- 30.7.2019 Siddhant Sahu
Court No. - 34
Case :- APPLICATION U/S 482 No. - 1113 of 2001
Applicant :- Diwan Giri And Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Usha Srivastava,Vinod K. Srivastava
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Order dated 17.05.2012 having been recalled vide order of date passed on Recall/Restoration Application, application is restored to its original number.
2. As requested and agreed by learned counsel for applicants, I proceed to hear and decide this case at this stage.
3. Heard Sri Vinod Kumar Srivastava, learned counsel for applicants and perused the material available on record.
4. This application under Section 482 Cr.P.C. has been filed with a prayer to quash summoning order dated 27.05.1999 passed by Additional Chief Judicial Magistrate, Farrukhabad, in Case No. 117 of 2001, Sarvendra Kumar @ Indu Awasthi v. Constable Raj Bahadur and Others, under Sections 500, 120-B IPC, Police Station Farrukhabad, District Farrukhabad.
5. After going through the complaint and others documents, I am of the view that at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicants. 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)
6. 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.
7. The application lacks merit and is accordingly dismissed.
Order Date :- 30.7.2019 Siddhant Sahu