Court No. - 40
Case :- APPLICATION U/S 482 No. - 43298 of 2018
Applicant :- Sanwari Devi And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Munna Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned AGA for the State.
This application under Section 482 Cr.P.C. has been filed by the applicants Sanwari Devi, Jhanraj, Ashok Kumar and Asha Devi for quashing the summoning order dated 5.7.2012 passed by learned Chief Judicial Magistrate, Kushinagar at Padrauna as well as proceedings of complaint case no. 3322 of 2012 ( Babita Vs. Arvind and others) under Sections 498A, 323, 504, 506 IPC and ¾ D.P. Act, Police Station Pataherawa District Kushinagar at Padrauna.
It is submitted that in para 3 of the application, it is mentioned that the applicants have earlier filed Criminal Misc. Application under Section 428 Cr.P.C. No. 31850 of 2018 which was dismissed as withdrawn with liberty to file afresh vide order dated 27.9.2018. Copy of order dated 27.9.2018 has not been filed by the applicants.
Learned AGA has produced the copy of order dated 27.9.2018 and pointed out that earlier same applicants have filed the application under Section 482 Cr.P.C No. 31850 of 2018, which was dismissed on the ground that the applicants have also challenged the NBW dated 31.5.2018 but it was brought to the notice of the Court that one accused, namely, Ashok Kumar (applicant no.3) has surrender before the court below and released on bail vide order dated 6.8.2018, therefore, the court was of the view that the challenge made to the NBW order dated 31.5.2018 by the applicant no.3, namely, Ashok Kumar is misconceived, therefore, the earlier application was dismissed with liberty to file afresh application.
It is submitted by the learned counsel for the applicants that applicant no.1 is mother-in-law, applicant no.2 is father-in-law, applicant no.3 Jeth and applicant no.4 is Jethani of opposite party no.2.
On the complaint dated 25.5.2012 of the opposite party no.2, learned Magistrate has recorded the statement of complainant/opposite party no.2 under Section 200 Cr.P.C and witnesses, namely, Kedar Nath PW-1 and Ranjeet Gond PW-2 under Sections 202 Cr.P.C. thereafter on finding that prima facie offence is disclosed against the accused persons, summoned them by the summoning order dated 5.7.2012, under Sections 498A, 323, 504, 506 IPC and ¾ D.P. Act to face the trial. It is submitted that applicant no.2 and have surrendered before the court below and they have been enlarged on bail. The averment in this regard have been mentioned in para 9 of the application. It is submitted that the impugned summoning order dated 5.7.2012 is illegal, unjust and without jurisdiction.
The prosecution case as set up by the opposite party no.2 is false and fabricated and cooked up with an ulterior motive. It is stated that the opposite party no.2 is married lady and she herself is not ready to live with her husband and had gone herself to her parental house and as such no offence is made out against the applicants.
Per contra, learned AGA has submitted that summoning order is very old of the year 2012. The present application is also liable to be dismissed on the ground of laches as the same has been filed after six years. It is submitted that after going through the contends of the complaint, statement of complainant and the witnesses prima facie offence against the applicants are made out, therefore, there is no illegality or irregularity or manifest error of law in summoning the accused persons by the summoning order dated 5.7.2012.
From the perusal of the 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 the applicants. All the submissions made at the bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage.
The prayer for quashing the impugned summoning order dated 5.7.2012 as well as aforesaid proceedings is refused.
However, on the request made by the applicants, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 30.11.2018 AK Pandey