Court No. - 78
Case :- APPLICATION U/S 482 No. - 17272 of 2021
Applicant :- Omveer Singh @ Omveer Shakya Opposite Party :- State of U.P. and Another Counsel for Applicant :- Arvind Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Arvind Kumar Tiwari, learned counsel for the applicant, Sri Satish Kumar Singh, learned State counsel and perused the material on record.
Notice was issued to the opposite party no. 2 vide order dated 15.11.2021. As per office report dated 20.12.2021 a report of C.J.M., Hathras has been received and a perusal of the same which is dated 10.12.2021 it is apparent that notice has been served on the opposite party no. 2 through legal heir.
No one appears on behalf of the opposite party no. 2 even when the matter has been taken up in the revised list. Service of notice upon the opposite party no. 2 is sufficient.
This application under Section 482 Cr.P.C. has been filed by the applicant Omveer Singh @ Omveer Shakya, with the prayer to quash the impugned orders dated 09.2.2011 and 29.10.2014 passed by the Chief Judicial Magistrate, Hathras in Complaint Case No. 3047 of 2009 (Kashmiri vs. Nakshe Ram and others), under Sections 147, 504, 506, 323, 354, 379 I.P.C. and 3(1)(X) S.C./S.T. Act, 1989, P.S.- Kotwali Sasni, District- Hathras.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is a resident of Budaun whereas the present complaint case has been filed in Hathras and he has no concern with the same at all. It is argued that although the complaint was filed in the year 2009 and summons were issued but no summons have been served on the applicant and as such, he had no knowledge of any proceedings against him. It is argued that the applicant is a handicapped having a locomotive disability of 45 % as has been diagnosed by the concerned authority and has been issued a Unique Disability ID by Government of India, copy of the said ID has been annexed as annexure no. 7 to the affidavit filed in support of present application. It is argued that looking to the facts and circumstances of the case and particularly the fact that the applicant is a handicapped and had not gone to Hathras, the allegations in the complaint are totally false and incorrect. It is argued that the court below has not proceeded with the matter as per the procedure. There has been a serious lapse of proceedings inasmuch as there is no report in the order sheet as to whether any summons have been served upon the applicant or not but non-bailable warrants have been issued in spite of that. It is argued that the same is in violation of the settled procedure by which the applicant gets affected.
Per contra, learned State counsel opposed the prayer for quashing the same and argued that the applicant is named in the complaint. There are allegations against him. Summoning order is a well reasoned order which refers to the inquiry as has been done by the court after which it has been passed. It is argued that the summoning order is of 09.2.2011 and since then 10 years have been passed but still the applicant has not appeared before the court concerned.
After having heard learned counsels for the parties and perusing the records, it is evident that the grounds as raised are the defence of the applicant. The summoning order is of more than 10 years back. The applicant has not appeared before the trial court. Non bailable warrants have been issued in the year 2014.
The Apex Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others (Criminal Appeal No. 330 of 2021) in its judgment dated 13th April, 2021 has in detail held that the power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare cases. While examining an FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint. Criminal proceedings ought not to be scuttled at the initial stage. Quashing of complaint/FIR should be an exception rather than an ordinary rule.
Looking to the facts and circumstances of the case and the disputed questions of fact, offence against the applicant is disclosed. Therefore, no ground exists for quashing of the impugned orders.
Accordingly, this application under Section 482 Cr.P.C. fails and is rejected.
(Samit Gopal,J.)
Order Date :- 21.12.2021/Naresh