Court No. - 81
Case :- APPLICATION U/S 482 No. - 9457 of 2021 Applicant :- Pawan Alias Himanshu Dubey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.
Hon'ble Shamim Ahmed,J.
Heard Sri Vipul Shukla learned counsel for the applicant, learned AGA for the State and perused the record.
The instant application has been filed by the applicant with a prayer to quash the charge sheet No.286 of 2020 dated 30.6.2020 having endorsement of cognizance order dated 27.11.2020 as well as entire proceedings of Criminal Case No.6293 of 2020, pending in the court of Additional Sessions Judge/Special Judge, POCSO Act, Court No.1, Gorakhpur in case crime no.130 of 2020 under Section 354, 452, 506 IPC and Section 3(2) 5-Ka SC/ST Act and Section 7/9 POCSO Act P.S. Barhalganj District Gorakhpur.
The contention of the learned counsel for the applicant is that no offence against the applicant are disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.
Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicant. The innocence of the applicant cannot be adjudged at the pre trial stage. Therefore, the applicant does not deserve any indulgence.
From the perusal of the materials on record and looking into the facts of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicant.
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, (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283 and (v) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918.
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. Palankattkar & 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 the impugned order, charge sheet and the entire proceedings of the aforesaid case is refused. There is no merit in this application filed under Section 482 Cr.P.C. The applicant has ample opportunity to raise all the objections at the appropriate stage.
However, the applicant is directed to appear and surrender before the court below and apply for bail, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.
With the aforesaid observations, this application is finally disposed of.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 30.9.2021/SP