Court No. - 38
Case :- APPLICATION U/S 482 No. - 15094 of 2019 Applicant :- Kamla Devi And 4 Ors Opposite Party :- State Of Up And Another Counsel for Applicant :- Mool Chandra Maurya Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
The instant application has been filed u/s 482 with a prayer to quash the entire proceeding as well as the order dated 28.3.2019 passed by the Addl. Session Judge, Court no. 4, Etah in Cri. Revision no. 107 of 2018 (Kamla Devi and others Vs. State of U.P.) and the summoning order dated 2.4.2018 passed by the A.C.J.M., Court no. 17, Etah in Complaint Case no. 1468 of 2017 (Than Singh Vs. Kamla Devi and others) u/s 323, 452, IPC, P.S. Sakeet Distt. Etah.
Heard Sri Mool Chandra Maurya, learned counsel for the applicants and the learned A.G.A. for the State.
It is submitted by the learned counsel that the applicants are innocent and have been falsely implicated in the present case. This case is counter blast of criminal case lodged by the applicant no. 1 wherein the O.P. no. 2 and other persons belonging to his family have been summoned u/s 323, 504, 506, 452 IPC. There is a contradiction between the complaint and the statement of complainant. Injured Vimala Devi has not been examined by the Magistrate. Learned Magistrate has summoned the applicants without applying judicial mind. Hence the entire proceeding as well as the summoning order deserve to be quashed.
Learned A.G.A. has vehemently opposed the prayer but could not dispute the aforesaid facts as argued by the learned counsel for the applicant. He has submitted that at this stage, the truthfulness or falsehood of the case cannot be adjudged.
Hon'ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana & Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843, after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicant. All the submissions made by the learned counsel for the applicant relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the order dated 28.3.2019 and the summoning order dated 2.4.2018 is refused.
However, it is provided that if the applicants appear or surrender before the Court concerned within thirty days from today and apply for bail in the aforesaid case, their prayer for bail shall be considered as expeditiously as possible by the court below in accordance with law.
It is further provided that applicant nos. 1 and 2 shall be released on interim bail till the final disposal of the regular bail application.
With aforesaid direction /observation, the instant application finally stands disposed of.
Order Date :- 25.4.2019 Vandana