Court No. - 73
Case :- APPLICATION U/S 482 No. - 30416 of 2019 Applicant :- Mithlesh Kumar And 4 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Syed Imran Ibrahim,Atharva Dixit,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the entire proceedings of complaint case no.74 of 2014 under Sections 420, 468, 471 IPC, Police Station Chaubiya, District - Etawah pending in the Court of Judicial Magistrate-I, Etawah as well as summoning order dated 16.7.2019 passed by the court concerned. Further prayer has been made to stay the further proceedings of the aforesaid case.
Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Syed Imran Ibrahim, learned counsel for the applicants and the learned AGA appearing for the State.
It is submitted by the learned counsel for the applicants that the discharge application moved by the applicants in compliance of the order dated 1.5.2019 passed in the Application u/s 482 No. - 40321 of 2016 is not illegal. The Magistrate concerned did not go through the facts raised in the discharge application and without application of judicial mind and discussion of the grounds taken in the discharge application, application under section 245 (2) Cr.P.C. was rejected. No prima facie case is made out. At this stage, learned counsel has referred to the statements recorded under sections 200 and 202 Cr.P.C. and further argued that the opposite party no.2 had no locus to initiate criminal proceedings against the applicants. All these facts have not been considered by the trial court while passing the order dated 16.7.2019. Thus, prayer has been made to admit and allow the application.
On the other hand, learned A.G.A. argued that although in the order dated 1.5.2019, this Court directed the applicants to move discharge application through counsel, yet there is no illegality, infirmity or perversity in the impugned order. What sort of evidence was available before the court below had already been considered at the time of passing the summoning order. Thus, observation recorded by the Magistrate concerned in the impugned order cannot be termed to be illegal. It is further argued that grounds taken in the discharge application by the applicants can best be decided during trial after evidence. Thus, referring to the aforesaid facts it is argued that the impugned order cannot be said to be erroneous or illegal. I have considered the rival contentions raised by learned counsel for the parties.
In this matter, as is evident from the record, on 1.5.2019, on the Application u/s 482 No. - 40321 of 2016, the coordinate Bench of this Court passed the following order :
"Heard learned counsel for the parties and perused the record.
This application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Code') has been filed on behalf of the applicants with a prayer to quash the order dated 23.10.2015 as well as the entire proceedings of Complaint Case No. 74 of 2014 (Yashpal Singh @ Chhote v. Prabhu Dayal and others), under Sections 420, 468, 471 of I.P.C., Police Station - Chaubiya, District - Etawah, pending in the Court of A.C.J.M., Court No. 2, Etawah.
Learned counsel for the applicants contended that opposite party no. 2 Yashpal Singh @ Chhote is not an aggrieved party. Thus, he cannot file complaint in this case. From the perusal of the complaint, no offence is disclosed against the applicants. Opposite party no. 2 has not furnished any evidence under Sections 200 and 202 of the Code to substantiate the allegation made in the complaint. Without any evidence, the applicants have been summoned for the aforesaid offences, which is not sustainable.
Per contra, learned A.G.A. opposed the prayer and contention raised by learned counsel for the applicants and contended that there is no illegality or infirmity in the impugned order passed by the trial court.
Alternative remedy is available to the applicants to submit application under Section 245(2) of the Code to get themselves discharged. Accordingly, it is not appropriate for this Court to pass any order in exercise of its extraordinary jurisdiction under Section 482 of the Code.
In view of above, prayer for quashing the impugned order as well as the entire proceedings in the aforesaid case is hereby refused.
Accordingly, it is directed that in case the applicants file an application under Section 245(2) of the Code for discharge through counsel within 30 days from today, the same shall be decided by the trial court by a reasoned and speaking order, strictly in accordance with law.
Till the disposal of discharge application, no coercive measures shall be adopted against the applicants.
With the aforesaid observation/direction, the instant application stands disposed of."
It appears that the discharge application was moved before the court concerned through counsel by the applicants on 29.5.2019. Trial Court invited objections and after hearing the parties, vide impugned order, rejected the discharge application. If the contents of the discharge application moved under section 245 (2) Cr.P.C. are taken into consideration, grounds taken in the application certainly requires leading of evidence and the same can best be decided after evidence. Observation recorded by the trial court in the impugned order that grounds taken in the discharge application are not sufficient to allow the application and discharge the applicants, in the opinion of the Court, cannot be termed to be illegal. The court dealing with the matter, at this stage, has to see only a prima facie case. What facts have been mentioned in the discharge application for allowing the same were not sufficient to allow the discharge application. Trial court while passing the impugned order has not committed any illegality, infirmity or perversity. The applicants have opportunity to move fresh discharge application at appropriate stage after recording of statement under section 244 Cr.P.C. after obtaining bail. At this stage, prayer made in the application is not liable to be allowed and the same is refused.
However, it is directed that in case the applicants surrender before the court below and apply for bail within 30 days from today, the same shall be considered and decided in view of the settled law. For a period of 30 days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants for surrender before the court concerned.
With the above observations, the application stands disposed of.
Order Date :- 26.8.2019 ss