Court No. - 77
Case :- APPLICATION U/S 482 No. - 43215 of 2019 Applicant :- Ghanshyam Mishra @ Awadhesh Kumar Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vikash Bhatnagar Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicant Ghanshyam Mishra @ Awadhesh Kumar Mishra against State of U.P. and Radha Devi, with prayer to quash summoning order dated 4.4.2017 passed by A.C.J.M., Court No. 11, Fatehpur, as well as entire proceedings of Complaint Case No. 1131 of 2015 and also order dated 23.10.2019 passed by Additional Sessions Judge (F.T.C.) II, Fatehpur, in Criminal Revision No. 89 of 2017.
Learned counsel for the applicant argued that there had been an N.C.R. No. 115 of 2014, u/s 323, 504, 506, 352 I.P.C. against O.P. No. 2 Radha Devi, Rajol and Rajendra, wherein after investigation charge sheet for offence punishable u/s 308 I.P.C. has been filed. With a view to pressurize applicant to enter into a compromise in the aforementioned case, this complaint case with false accusation was got lodged. Whereas the police, in its report has said that no such occurrence ever occurred on 4.8.2015. Even then the Magistrate passed impugned summoning order, whereas name of PW2 has been written to be Om Prakash but signature is in some other name 'Surya Prakash'. Hence this application with above prayer.
Learned A.G.A. has vehemently opposed above arguments.
From the very perusal of police report dated 14.5.2015 it is apparent that there remains persistent dispute regarding taking of water from public hand-pump, which is lying in front of house of applicant Ghanshyam Mishra and the present occurrence was said to be of 4.5.2015, whereas previously instituted case by applicant was in respect of occurrence of 17.4.2014 having no concern with above occurrence. This may be a motive of second occurrence or it may be a motive for coercing applicant. But this factual aspect is to be seen by trial court during trial. The statements of complainant and her two witnesses recorded u/s 200 and 202 Cr.P.C. are fully intact and in corroboration with occurrence written in application moved u/s 156(3) Cr.P.C., which was treated as a complaint by Magistrate. The occurrence was said to be of 4.5.2015 at about 9.00 A.M. when complainant's daughter went to above hand pump for taking water, where applicant Ghanshyam Misshra did obscene act with her. She came back and complained the above occurrence. Informant rushed at above spot. She too was badly beaten and her modesty was outraged by Ghanshyam Mishra. This was witnessed by Kastoori Devi and others and threat of dire consequences was extended. This fact was stated in the statements recorded u/s 200 and 202 Cr.P.C.
Regarding change of name of witness is concerned, the name of accused itself is Ghanshyam Mishra alias Awadhesh Kumar Mishra. The name and signature of PW2 is with alias.
This court in exercise of inherent power u/s 482 Cr.P.C. is not expected to analytically analyze the factual aspect because the same is to be seen by trial court during trial. In view of law propounded by Hon'ble Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844, Hamida v. Rashid, (2008) 1 SCC 474, Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296, Dhanlakshmi v. R.Prasana Kumar, (1990) Cr.L.J. 320 (DB): AIR 1990 SC 494, State of Bihar V. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, there is no ground for interference under Section 482 Cr.P.C.
The prayer for quashing summoning as well as proceeding of the aforesaid criminal case is refused.
Accordingly, the application u/s 482 Cr.P.C. is hereby dismissed.
However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within four weeks from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant.
However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
Order Date :- 28.11.2019 Pcl