Court No. - 25
Case :- APPLICATION U/S 482 No. - 1381 of 2019 Applicant :- Neeraj Kumar Srivastava And Another Opposite Party :- State Of Up And Another Counsel for Applicant :- Rajiv Kumar Mishra,Kamlesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
This application u/s 482 Cr.P.C. has been filed by Neeraj Kumar Srivastava and Smt. Manjoo Devi against State of U.P. and Om Prakash Srivastava with prayer to quash the impugned summoning order dated 30.1.2018 passed in Complaint Case No. 20 of 2017, u/s 323, 504, 506, 4276, 448 I.P.C., P.S. Jhunsi, District Allahabad, pending in the court of Judicial Magistrate II, Allahabad. A further prayer has been made for staying the impugned summoning order as well proceeding of the aforesaid complaint case.
Heard learned counsel for the applicants and learned AGA for the State.
Learned counsel for the applicants has argued that a civil case was filed regarding property of Kalyani Devi, who was married with real brother of the complainant-O.P. No. 2 and she died issueless. Plot no. 807 having an area 110 Sq. yard was purchased by Kalyani Devi, which was alienated by her in the name of her real brother Neeraj Kumar Srivastava for a valid consideration and he was put under possession. After death of Kalyani Devi on 12.6.2011 a Civil Suit was filed by complainant- O.P. No. 2 as Suit No. 2804 of 2018 in which the complainant claimed himself to be the successor of Kalyani Devi and succession of her property whereas Kalyani Devi had filed a suit before the Consolidation Officer, Pratapgarh, for mutation of her name and this was objected by O.P. No. 2 on the basis of succession of husband of Kalyani Devi. After having the property of Kalyani Devi this malafide complaint was filed in which statements u/s 200 and 202 Cr.P.C. were got recorded and impugned summoning order has been passed. Without entering into merits of civil dispute pending between the parties, the impugned summoning order was passed. Hence this application.
Learned AGA opposed the argument by submitting that for a criminal case statements of complainant and his witnesses were sufficient for summoning the accused.
From the very perusal of the material placed before this court it is apparent that some civil suit regarding property of Kalyani Devi was previously instituted and there was a dispute regarding it but the present summoning is not related with that property rather it was related to an occurrence, which occurred on 28.12.2016 at 4.00 P.M. when the accused persons along with many others had criminal trespassed and assaulted the complainant with abuse and extension of threat of dire consequences and for this offence an application u/s 156(3) Cr.P.C. was filed by O.P. No. 2 before the Magistrate on which complaint case was registered and after recording statements under sections 200 and 202 Cr.P.C. in which the witnesses supported the occurrence, the impugned summoning order was passed.
The submissions made by learned counsel for the applicant call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case.
At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and the recent being A.R.C.J. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348. Therefore, this Court does not deem it proper and cannot be persuaded to have a pre-trial before the actual trial begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge by moving a proper application for the said purpose before the trial court and he is free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by him before this Court in this application.
Accordingly the application is dismissed and the prayer for quashing the summoning order as well as proceedings of the aforementioned complaint case is refused.
Order Date :- 22.1.2019 Pcl