Court No. - 38
Case :- APPLICATION U/S 482 No. - 16483 of 2019 Applicant :- Mohit Baliyan And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Sunil Kumar Tiwari 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 of Cri. Case No. 4978/9 of 2017 as well as charge sheet dated 26.3.2017 and cognizance order dated 20.4.2017 arising out of Case Crime No. 58 of 2017, u/s 452, 354, 506 IPC, P.S. Titavi, distt. Muzaffar Nagar, pending before the A.C.J.M., Court no. 2, Muzaffar Nagar.
Heard 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. The instant case is counter blast of case lodged by father of applicants against O.P. no.2 as Case Crime no. 31 of 2017. The Investigating Officer has submitted the charge sheet against the applicants without any evidence. The cognizance taken by the learned Magistrate is totally abuse of process of law. Hence the charge sheet as well as the cognizance order deserve to be quashed.
Learned A.G.A. has vehemently opposed the prayer and submitted that accused applicants have committed heinous offence of molestation and indecency. 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.
In this case the O.P. No. 2 has lodged an FIR against the applicants as Case Crime No. 58 of 2017 u/s 452, 354, 506 IPC with allegation that applicant no.1 used to make phone call her by using indecent and filthy words. On 6.1.2017 when she was at the house of her father in law's brother (Chachia Sasur) both the applicants came, caught her in arm and behaved indecently and when she raised alarm they fled away by threatening for her life. After investigation I.O. has submitted the charge sheet against the applicants whereupon the learned Court below has taken cognizance.
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 entire proceedings of Cri. Case No. 4978/9 of 2017, charge sheet dated 26.3.2017 and cognizance order dated 20.4.2017 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.
With aforesaid direction /observation, the instant application finally stands disposed of.
Order Date :- 29.4.2019 Vandana