Court No. - 83
Case :- APPLICATION U/S 482 No. - 16849 of 2021 Applicant :- Pushpendra Kumar And 9 Others Opposite Party :- State Of U.P And Another Counsel for Applicant :- Geetam Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Geetam Singh, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This application under Section 482 Cr.P.C. has been filed challenging charge-sheet No.01 of 2018 dated 08.04.2018 submitted in Case Crime No.524 of 2017, under Sections- 147, 186, 353, 341, 504, 506 I.P.C. and Section- 7 Criminal Law Amendment Act, Police Station- Awagarh, District- Etah, Cognizance Taking Order dated 06.07.2019 passed by Civil Judge (Junior Division)/Judicial Magistrate, Jalesar, Etah, District- Etah upon aforesaid charge-sheet, as well as entire proceedings of consequential Case No.2026 of 2021, (State Vs. Omvir @ Tinku and Others) arising out of above-mentioned case crime number, and now pending in the court of Civil Judge (Junior Division)/Judicial Magistrate, Jalesar, Etah, District- Etah.
Learned counsel for applicants contends that applicants are innocent. They have been falsely implicated in above- mentioned case crime number. Allegations made in F.I.R. are false and concocted. It is next contended that applicants have been falsely implicated in present criminal case on account of police rivalry as first informant/opposite party-2 is Station House Officer of Police Station- Awagarh, District- Etah. No conviction of applicants is possible on the basis of material collected by Investigating Officer during course of investigation. As such present criminal proceedings have been initiated on account of an ulterior motive. On the aforesaid premise, it is thus urged that present criminal proceedings are not only malicious but also an abuse of process of Court. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that subsequent to F.I.R. dated 03.11.2017, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigation Officer examined first informant and other witnesses under Section 161 Cr.P.C. who have supported the prosecution story as unfolded in F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, which is substantially adverse to applicants, Investigating Officer opined to submit a charge- sheet. Accordingly, charge-sheet dated 08.04.2018 has been submitted, whereby and whereunder, applicants have been charge-sheeted under Sections- 147, 186, 353, 341, 504, 506 I.P.C. and Section- 7 of Criminal Law Amendment Act. In the aforesaid charge-sheet, as many as, 25 prosecution witnesses have been nominated. It is thus submitted by learned A.G.A. that at this stage, it cannot be said that prosecution of applicants is false or there is no material to support the prosecution of applicants It is next contended that at this stage Court is not required to weigh the evidence, but only prima-facie case is to be seen. In support of above, he has placed reliance upon paragraph- 37 of the judgment of Apex Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499, wherein following has been observed.
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another, (2012) 11 SCC 465]"
Learned A.G.A. further contends that charge sheet is the outcome of investigation. However, no factual foundation has been laid in the entire affidavit filed in support of present application under Section 482 Cr.P.C. pointing out any deficiency, irregularity or illegality in investigation of above mentioned case crime number. Once investigation has not been disputed the resultant charge-sheet cannot be challenged.
It is lastly submitted by learned A.G.A. that whether on the evidence on record, charges can be framed against applicants or not under the charging sections can be agitated before court below at the time of framing of charge.
When confronted with above, learned counsel for applicants could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence to record a finding one way or the other. Such an exercise can be undertaken only by trial court upon trial of above-mentioned criminal case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283.
In view of above, present application fails and is liable to be dismissed.
It is accordingly dismissed Order Date :- 23.9.2021 Saif