Court No. - 70
Case :- APPLICATION U/S 482 No. - 3815 of 2019 Applicant :- Mahendra And 03 Others Opposite Party :- State Of Up And Another Counsel for Applicant :- Braj Mohan Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of leaned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the impugned order dated 31.3.2016 passed by Chief Judicial Magistrate in Complaint Case No. 4387 of 2015 (Babi Devi Vs. Mahendra & others), whereby applicants have been summoned to face trial and impugned order dated 31.08.2018 passed by Additional Session Judge in Revision No. 82 of 2016, whereby revision preffered by the applicants against the order dated 31.3.2016 has been dismissed under Sections 452, 323, 504, 506 IPC, Police Station Kotwali Dehat, District - Etah.
Learned counsel for the applicants submitted that:-
(i) The opposite party no.2 moved an application under Section 156(3) Cr.P.C. dated 20.10.2014 against the applicants, which is counterblast to the civil suit dated 14.8.2013 filed by the mother of applicant no.1 against the husband of opposite party no.2.
(ii) The applicants have been falsely implicated on account of the aforesaid reason and learned Magistrate by the impugned order dated 31.3.2016 has wrongly summoned the applicants.
(iii) Applicants have preferred the revision before the Additional Sessions Judge, has also wrongly dismissed by the impugned order dated 31.8.2018.
Per contra, learned AGA for the State submitted that considering the material evidences and allegations against the applicants on record, as on date, as mentioned in the impugned complaint, the statement of the complainant under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C., the cognizable offence against the applicants is made out. Under the facts and circumstances of the present case as well as materials on record against the applicants, the criminal proceedings against the applicants cannot be said to be abuse of the process of the Court. There is no illegality in the impugned orders dated 31.3.2016 and 31.08.2018. It is submitted that this application is liable to be dismissed.
After having heard the learned counsel for the parties and perusing the entire record, I find that from the perusal of application under Section 156 (3) Cr.P.C. of the opposite party no.2, there is specific averment in paragraph no.4 of the said application that Rajkumar and Sridevi have received serious injury on their body. There is no averment and explanation in this regard in the present application. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sprangly, only in such a appropriate cases, where uncontroverted allegations made in the complaint and the evidence relied in support of same, do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.
It is also well settled that at the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegation cannot be even determined at the stage of summoning the accused.
In view of above, this Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicants in this case, the cognizable offence is made out. There is no manifest error of law in the impugned N.B.W dated 14.12.2018. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. Hence, criminal proceeding against the applicants is not liable to be quashed. The relief as claimed by the applicants in this application is accordingly refused.
At this stage, learned counsel for the applicants submitted that in case some protection is granted by this Court, the applicants will surrender before the concerned court below. The learned Additional Government Advocate for the State does not dispute such prayer of the applicant.
Considering the last prayer made by the learned counsel for the applicants, it is directed that in case applicants appear before the concerned court below within 45 days from today and apply for bail, the bail application of the applicants shall be heard and disposed of expeditiously by the courts below in accordance with settled law laid down by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Criminal Law Journal 755 as well as judgement passed by Hon'ble Apex Court in (2009) 4 SCC 437 Lal Kamlendra Pratap Singh Vs. State of U.P.
For the period of 45 days from today, no coercive action shall be taken against the applicants.
With the above observations, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 29.1.2019 AK Pandey