Court No. - 83
Case :- APPLICATION U/S 482 No. - 13759 of 2021 Applicant :- Ghanshyam Prasad Srivastava And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Deepak Kumar Tripathi,Gyanendra Kumar Tripathi,Keshari Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Gyanendra Kumar Tripathi, 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 charge-sheet dated 1.6.2020 in Case Crime No. 881 of 2019, Police Station Bhelupur, District Varanasi now pending in the Court of Additional Chief Judicial Magistrate-III, Varanasi.
Learned counsel for applicant contends that applicants are innocent. Applicants have been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are concocted. No occurrence as alleged in F.I.R. has occurred Present criminal proceedings have been engineered on account of an ulterior motive. As such, same are not only malicious but also an abuse of process of Court. Consequently, they are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed opposed this application. He contends that subsequent to F.I.R. dated 25.11.2019, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer recorded statements of first informant and other witnesses under sections 161 Cr.P.C. who have supported the prosecution story as unfolded in F.I.R. On the basis of material collected during course of Investigation, which is substantially adverse to applicants, charge sheet dated 1.6.2021 has been submitted by Investigating Officer, whereby applicants who are named accused in above noted F.I.R. have been charge sheeted. In the charge sheet so submitted as many as four prosecution witnesses have been nominated. On the basis of above, it is urged that it cannot be said at this stage that prosecution of applicants is false or there is no material to support prosecution of applicants.
Placing reliance upon judgement of Apex Court in Nupur Talwar Vs. Central Bureau of Investigation and Another, (2012) 11 SCC 465 it is then urged at this stage that only this much is to be seen whether sufficient evidence exists on record to summon the accused and not evidence sufficient to convict the accused. Charge sheet is the outcome of investigation. As no deficiency, irregularity or illegality has been pointed out in investigation, consequential charge sheet cannot be challenged. Hence, there is no irregularity or illegality in passing the order impugned.
When confronted with above, learned counsel for applicant could not over come the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court. 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, 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, application fails and is liable to be dismissed. It is accordingly dismissed.
Order Date :- 12.8.2021 Arshad