Court No. - 83
Case :- APPLICATION U/S 482 No. - 7478 of 2021 Applicant :- Hridaynath Dubey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kailash Singh Yadav Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Kailash Singh Yadav, learned counsel for applicant and learned AGA for State.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed challenging charge sheet dated 23.12.2019 submitted in Case Crime No. 661 of 2019 under Sections 420, 406I.P.C., P.S. Rohaniya, District-Varanasi, Cognizance Taking Order /Summoning Order dated 24.08.2020 passed by Special Chief Judicial Magistrate, Varanasi,in Case No. 11209 of 2020 (State Vs. Hridaynath Dubey & Another) arising out of above mentioned case crime number, Orders dated 26.11.2020 and 03.02.2021 passed by Special Chief Judicial Magistrate, Varanasi whereby non-bailable warrant has been issued against applicant as well as entire proceedings of above mentioned case now pending in the court of Special Chief Judicial Magistrate,Varanasi.
4. Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. dated 12.11.2019 are false and concocted. Learned counsel for applicant further contends that neither the applicant is vendor nor the vendee of sale deed in question. He is simply a mediator in the contract. He next contended that a purely private and civil dispute between parties has been dragged into criminal litigation. It is also urged that on the allegations made in F.I.R., prosecution of applicant is not possible. Present criminal proceedings have been engineered by first informant/opposite party-2 on account of an ulterior motive. Consequently, present criminal proceedings are not only malicious but also an abuse of process of Court. As such, same are liable to be quashed by this Court.
5. Per Contra, learned A.G.A has opposed present application. Learned A.G.A. contends that subsequent to F.I.R. dated 12.11.2019, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigation Officer examined first informant and other witnesses under Section 161 Cr.P.C. who have supported the prosecution story as unfolded in F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, which is substantially adverse to applicant, Investigating Officer opined to submit a charge-sheet. Accordingly, charge-sheet dated 23.12.2019 has been submitted, whereby and whereunder, applicant has been charge- sheeted under Sections- 420 and 406 I.P.C. In the aforesaid charge-sheet as many as 4 prosecution witnesses have been nominated. It is thus submitted by learned A.G.A. that at this stage, it cannot be said that prosecution of applicant is false or there is no material to support the prosecution of applicant.
6. It is next contended by learned A.G.A. that at this stage Court is not required to weigh the evidence, but only prima-facie case is to be seen. In support of above, he has placed reliance upon paragraph- 37 of the judgement of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499, wherein following has been observed.
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another, (2012) 11 SCC 465]"
7. Learned A.G.A. further contends that charge sheet is the outcome of investigation. However, no factual foundation has been laid in the entire affidavit filed in support of present application under Section 482 Cr.P.C. pointing out any deficiency, irregularity or illegality in investigation of above mentioned case crime number. Once investigation has not been disputed the resultant charge-sheet cannot be challenged.
8. It is lastly submitted by learned A.G.A. that whether on the evidence on record, charges can be framed against applicant or not under the charging sections can be agitated by applicant before court below at the time of framing of charge. On the aforesaid premise, learned A.G.A. contends that no indulgence be granted by this Court.
9. When confronted with aforesaid, learned counsel for applicant could not overcome the same.
10. Having heard learned counsel for applicant, 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 applicants. All the submissions made at the Bar relate to the disputed defence of applicants, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court cannot appraise or appreciate evidence to record a finding one way or the other. Aforesaid exercise can be undertaken by this Court upon trial of applicant in above mentioned criminal case. 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 and 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.
11. In view of above, present application fails and is liable to be dismissed.
12. Accordingly, present application is dismissed.
Order Date :- 27.9.2021 YK