Court No. - 87
Case :- APPLICATION U/S 482 No. - 46687 of 2019
Applicant :- Pradeep Kumar Vishwakarma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prem Chand Pandey Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the order dated 16.05.2019 passed by the Civil Judge (Senior Division) District Mahoba on discharge application, filed by the applicant, as well as proceeding of complaint Case No. 82 of 2016 (Smt. Mandakini Devi Vs. Pradip Kumar Vishwakarma and Others), under Sections- 494, 504, 506 of IPC against applicant No.1, and under Sections 504 and 506 of IPC against applicant Nos. 2 and 3, Police Station- Kulpahar, District- Mahoba, (new complaint case No. 326 of 2018) pending in the court of Civil Judge (Senior Division) District Mahobad.
Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case. Learned counsel further submits that the divorce application filed by applicant No.1, against O.P. No. 2 (Mandakini Devi) has already been allowed against whereof a recall application was filed and allowed but it was stayed by this Hon'ble Court. Learned counsel further submits that the alleged fact was brought before the lower court but the court concerned did not consider the evidence produced by the applicant and dismissed the discharge application.
Learned A.G.A. has vehemently opposed and submits that sufficient material and evidence is available on record to prove the cognizable offence and there is no illegality or perversity in the impugned order as sufficient evidence is available on record to frame the charges against the applicant.
From the perusal of the impugned order it appears that the trial court has specifically mentioned in the impugned order that apart from the offence punishable under Section 494 of IPC, specific allegation for offence punishable under Sections 504 and 506 of IPC have been levelled against the applicants. Trial court has also mentioned in the impugned order that applicants/accused persons have not appeared before the Court in person.
Hon'ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana & Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843, Sav. Kamal Shivaji Pokemaker Vs. State of Maharashtra AIR (2019) SC 847 after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
It is settled principle of law as laid down by the Hon'ble Supreme Court in State of Bihar Vs. Ramesh CRLJ 1977 SC 1607 and in Superintendent & Remembrancer Of Legal Affairs West Bengal Vs. Anil Kumar Bhunja & Others AIR 1980 SC 52 that at this stage of framing of charge or considering the discharge application, the truthfulness, veracity and effect of the prosecution evidence are not required to be meticulously adjudged and no weight to be attached to the probable defence of the accused.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicants. All the submissions made by the learned counsel for the applicants relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings is refused.
However, as prayed at this stage, it is provided that if the applicants appear or surrender before the Court concerned within 30 days from today and apply for bail in the aforesaid case, their prayer shall be considered as expeditiously as possible preferably the same day by the Court below in accordance with law.
With the aforesaid direction/observation, the instant application is disposed off.
Order Date :- 17.12.2019 S.K.