Court No. - 46
Case :- APPLICATION U/S 482 No. - 34718 of 2018 Applicant :- Nazar Mohammad And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Syed Ali Imam Counsel for Opposite Party :- G.A.
Hon'ble Naheed Ara Moonis,J.
Heard learned counsel for the applicants, the learned AGA for the State and perused the record.
The instant application has been filed by the applicants with a prayer to quash the charge sheet dated 21.2.2018 arising out of Case Crime No.637 of 2017, under Sections 323,376,511,354-B,506 IPC, p.s. Dankaur, District Gautam Budh Nagar pending in the court of Ist Additional Chief Judicial Magistrate, Gautam Budh Nagar.
The contention of the learned counsel for the applicants is that the applicant no.1 is the husband of the opposite party no.2 who has lodged the FIR against the applicants with absolutely false and concocted allegation. It is further submitted that prior to the lodging of the First Information Report, the husband (the applicant no.1) filed an application under section 9 of the Hindu Marriage Act for restitution of conjugal rights against the opposite party no.2 Hence as a counter blast, the present prosecution has been instituted against the applicants with a malafide intention for the purposes of harassment, yet the investigating officer has submitted the charge sheet against the applicants in perfunctory manner whereby the court below has taken cognizance of the offence in a pedantic manner without applying judicious mind when no prima facie offence is made out against the applicants.
It is further submitted that there is every likelihood that both the parties will resolve their differences and will arrive at an amicable settlement if the matter is referred to the mediation centre.
Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicants and the innocence of the applicants cannot be adjudged at the pre trial stage. Therefore, the applicants do not deserve any indulgence.
From the perusal of the materials on record and looking into the facts and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R. P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC(Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of charge sheet is refused. There is no merit in this application filed under Section 482 Cr.P.C., thus the same is accordingly dismissed. The applicants have ample opportunity to raise all the objections at the appropriate stage.
However, the applicants are directed to appear and surrender before the court below and apply for bail within a period of thirty days from today, the prayer for bail shall be considered keeping in view of the settled law laid down by Hon'ble Apex Court as well as by this Court after hearing the Public Prosecutor.
In case the applicants fail to surrender within the stipulated period the court below shall take appropriate action against them.
Order Date :- 27.9.2018 M. Tariq