Court No. - 49
Case :- APPLICATION U/S 482 No. - 42498 of 2018 Applicant :- Smt. Kusma Devi Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shashi Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Ved Prakash Vaish,J.
1. Heard Sri S.K. Mishra, learned counsel for the applicant and Sri Sanjay Sharma, learned A.G.A. for the State.
2. This is an application under Section 482 of Cr.P.C. has been filed for quashing the criminal proceedings of Case No.8911 of 2017, CNR No.UPETO40215422017 (State Vs. Smt. Kusma Devi & others), arising out of Crime No.129 of 2017, under Section 3/7 E.C. Act, P.S. Bagwala, District Etah, pending in the court of learned CJM, Etah.
3. Learned counsel for the applicant submits that the applicant is running a fair price shop since August, 2016, no offence against the applicant is made out, on 19.2.2017 on the basis of information, 2 bags of wheat and 2 bags of rice were recovered from the house of neighbour of the applicant, namely, Anurag Giri (co-accused). He also submits that distribution was made by People Patra Holder (PPH) on 15.2.2017 but no statement of any card holder was recorded. The applicant has been falsely implicated in the case at the instance of Village Pradhan. The statement of Sri Bharat Singh Verma (Village Pradhan) was recorded at a later stage.
4. Learned counsel for the applicant further submits that the applicant had challenged the FIR by filing Criminal Misc. Writ Petition No.3757 of 2017 which was disposed by by this Court on 9.3.2017 with direction that the petitioner shall not be arrested till the submission of the police report under Section 173(2) Cr.P.C.
5. Learned A.G.A. for the State has opposed the application on the ground that on 19.2.2017 on receiving information that the applicant, who is running a fair price shop has kept the food grains items, which were made for public distribution. On inspection, 16 bags of food grains (12 bags of wheat and 4 bags of rice) were found in the house of the co- accused Anurag Giri son of Ramesh Giri (neighbour of the applicant) and statement of Bharat Singh Verma was recorded on 20.2.2017, who has stated that the applicant alongwith co-accused Anurag Giri were selling the food grains. He also submits that the applicant was not giving food grains to the card holders and the applicant in collusion with the co- accused Anurag Giri, misusing the food grains items. He further submits that the statement of Vijay Kumar Prasad was also recorded. The cognizance has been taken on 21.12.2017.
6. I have carefully considered the submissions made by learned counsel for both the parties.
7. It is settled law that under Section 190(1)(b) of Cr.P.C., cognizance is taken on only on the basis of papers forwarded by the police under Section 173(2) Cr.P.C. The expression 'congnizance' connotes 'to take notice of judicially'. The word 'congnizance' indicates the point when a Magistrate takes a judicial notice of an offence. It is also settled law that 'taking of congnizance' means cognizance of an offence and not of an offender.
8. The law regarding sufficiency of material which may justify the summoning of an accused has been considered in a catena of decisions. The Hon'ble Supreme Court in the case of "R.P. Kapoor Vs. State of Punjab", AIR 1960 SC 866 has summarized the categories of case where inherent power can be exercised to quash the proceedings and it was held that (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the FIR or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced on the evidence adduced clearly or manifestly fails to prove the charge.
9. The scope of powers under Section 482 of Cr.P.C. and the categories of cases where the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out by Hon'ble Supreme Court in "State of Haryana Vs. Bhajan Lal", 1992 Supp.(1) SCC 335. The Hon'ble Supreme Court, however, put a note of caution and added that the power should be exercised sparingly and that too in the rarest of rare cases.
10. In another case of "Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another", 2005 SCC (Cr.) 283 and in the case of "Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi", (1976) 3 SCC 736 it has been observed that at the stage of cognizance only prima facie case has to be seen.
11. In the present case, having considered the charge-sheet, statements of witness recorded under Section 161 Cr.P.C. and trial court found that a prima facie case to summon the applicant. In my view, there is no illegality in the impugned order.
12. Accordingly, prayer for quashing of the charge-sheet and criminal proceedings of Case No.8911 of 2017, CNR No.UPETO40215422017 (State Vs. Smt. Kusma Devi & others), arising out of Crime No.129 of 2017, under Section 3/7 E.C. Act, P.S. Bagwala, District Etah, is declined.
13. However, keeping in view of the facts and circumstances of the case and submissions made by learned counsel for the applicant, the applicant is directed to appear before the learned court concerned within 15 days from today in the aforementioned case and move an appropriate application for bail. The learned trial court will decide the said application, in accordance with law, as expeditiously as possible. No coercive steps shall be taken against the applicant in the aforesaid case for a period of 15 days or till the application filed by the applicant is decided, whichever is earlier. In case, the applicant fails to appear before the court concerned within the aforesaid period, the interim order shall stand vacated.
14. With the aforesaid observations, the application under section 482 Cr.P.C. stands disposed of.
(V.P. Vaish, J.)
Order Date :- 29.11.2018 Vivek Kr.