Court No. - 49
Case :- APPLICATION U/S 482 No. - 15587 of 2020 Applicant :- Jitendra Yadav And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manish Kumar,A Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri A Kumar Srivastava, learned counsel for applicants and Sri Janardan Prakash, learned AGA for the State.
2. This application under Section 482 Cr.P.C. has been filed seeking quashing of the summoning order dated 08.01.2020, passed by the learned Additional Sessions Judge, Court No. 8, Jhansi in S.T. No. 142 of 2019 under Section 272 IPC and Sections 60/63 of the Excise Act, Police Station-Raksha, District-Jhansi, arising out of Case Crime No. 0002 of 2016 wherein in pursuance of an application under Section 319 Cr.P.C., filed by the prosecution, summons have been issued summoning the present applicants.
3. Learned counsel for applicants submits that prosecution story is fake and malicious, inasmuch as, as per the version of the FIR lodged on 01.01.2016, police party had received intimation in regard to manufacture of illicit liquor through their informant. It is submitted that the police party raided a place where three persons were manufacturing illicit liquor over 'bhatti' and when they intercepted them, then all the three persons ran away. It is submitted that police registered a case against members of that party, who had ran away and against whom FIR was lodged by their name namely, Ashok S/o Hakim Kushwaha, Harbhajan S/o Mannu Kushwaha and Santosh S/o Brij Kishor Kushwaha.
4. It is further submitted that though recovery of two drums of liquor measuring about 500 liters have been shown from their possession. But according to the version of police, after making necessary seizure of sample and other materials used for manufacture of illicit liquor, contained in the drums, was destroyed. Thereafter, another raid was carried out on the same day, which included the present applicants and their name too have been mentioned in the FIR. It is submitted that it is impossible for police party to know each and every person by name and in fact, they have been falsely implicated due to political rivalry of the opposite party. It is submitted that use of a private loader without giving its details etc. for transportation of confiscated material, creates doubt about the authentication of the story, put-forth by the police party and therefore, it is a good case for quashing of the proceedings and the summoning order.
5. Learned AGA submits that at the time of summoning, Magistrate has to only ascertain that there is prima facie case and sufficient ground for proceeding. Defence open to the accused is not relevant at the time of summoning and therefore, in the light of the law laid down in case of Anil Saran vs. State of Bihar and Another; (1995) 6 SCC 142, it has been held that at the time of issuing the process, what the court is required to find out is as to whether there is a prima facie case. It need not and should not determine the adequacy of the evidence or the probability of the accused being guilty.
6. After hearing learned counsel for the parties and going through the record, it is evident that as per the law laid down in case of Anil Saran vs. State of Bihar (supra), at the time of issuance of summons, only requirements is to see the existence of allegations and presence of a prima facie case rather than looking into the defence evidence, therefore, when tested on this touchstone, there is no illegality in the impugned order, thus, petition fails and is dismissed.
Order Date :- 30.7.2021 Vikram/-A