Court No. - 70
Case :- APPLICATION U/S 482 No. - 3831 of 2019 Applicant :- Parvez Khan And 6 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Aijaz Ahmad Khan Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of leaned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash the charge-sheet dated 20.07.2018 arising out of Case Crime No. 71 of 2018, summoning order dated 26.09.2018, Non-bailable warrant dated 09.01.2019 and proceedings of case no. 297 of 2018, under Sections 147, 148, 323, 504, 506 I.P.C., Police Station- Dildar Nagar, District -Ghazipur pending in the court of Judicial Magistrate, Court No. 9, Ghazipur.
Learned counsel for the applicants submitted that:-
(i) Applicants have been falsely implicated by the informant with mala fide intention only with a view to harass the applicants. It is next submitted that the summoning order dated 26.09.2018 as well as Non-bailable warrants dated 09.01.2019 issued in this case by the Magistrate concerned are not sustainable under the law. It is next submitted that in the order dated 09.01.2019 at the top of the order it is mentioned that Court is vacant and in the concluding part of the matter, it is mentioned let Non-bailable warrants be issued against the accused persons.
(ii) No offence is made out against the applicants from the F.I.R. dated 06.06.2018, as the same is counterblast based on false allegations on account of F.I.R. dated 06.06.2018 lodged by the applicant no.1.
(iii) The impugned criminal proceeding against the applicants is liable to be quashed by this Court.
Per contra, learned Additional Government Advocate for the State submitted that considering the material evidences and allegations against the applicants on record, as on date, as per prosecution case, the cognizable offence against the applicants is made out. Under the facts and circumstances of the present case as well as materials on record against the applicants, the criminal proceedings against the applicants cannot be said to be abuse of the process of the Court. There is no illegality in the impugned charge-sheet dated 20.07.2018 arising out of Case Crime No. 71 of 2018, summoning order dated 26.09.2018, Non-bailable warrants dated 09.01.2019. It is submitted that this application is liable to be dismissed.
After having heard the learned counsel for the parties and perusing the entire record, I find that applicants have not filed the order sheets of the trial court, wherein the case of the applicants is pending.
On perusing the application dated 09.01.2019 as well as order dated 09.01.2019, I find that at the bottom of the order dated 09.01.2019 there is endorsement of signature of Judicial Magistrate also. In view of the above, I do not find any merit in the contention raised on behalf of applicants. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such a appropriate cases, where uncontroverted allegations made in FIR or charge-sheet and the evidence relied in support of same do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.
It is also well settled that at the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegation cannot be even determined at the stage of summoning the accused.
In view of above, this Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicants in this case, the cognizable offence is made out. There is no manifest error of law in the impugned charge-sheet dated 20.07.2018 arising out of Case Crime No. 71 of 2018, summoning order dated 26.09.2018, Non-bailable warrant dated 09.01.2019 and proceedings of case no. 297 of 2018, under Sections 147, 148, 323, 504, 506 I.P.C. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. Hence, criminal proceeding against the applicant is not liable to be quashed. The relief as claimed by the applicant in this application is accordingly refused.
At this stage, learned counsel for the applicants submitted that in case some protection is granted by this Court, the applicants will surrender before the concerned court below. The learned Additional Government Advocate for the State does not dispute such prayer of the applicants.
Considering the last prayer made by the learned counsel for the applicants, it is directed that in case applicants appear before the concerned court below within thirty days from today and apply for bail, the bail application of the applicants shall be heard and disposed of expeditiously by the courts below in accordance with settled law. For the period of thirty days from today, no coercive action shall be taken against the applicants.
With the above observations, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 29.1.2019 AKT