Court No. - 34
Case :- APPLICATION U/S 482 No. - 6606 of 2006 Applicant :- Smt. Sawanri Devi And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dileep Kumar Srivastava Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Dileep Kumar Srivastava, learned counsel for applicants and learned A.G.A. for State.
2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order of non-bailable warrant dated 15.06.2006 as well as further proceedings of Criminal Case No. 218 of 2005, under Sections 294 and 324 IPC, Police Station Lotan, District Siddharthnagar, pending in the Court of Judicial Magistrate, Siddharthanagar.
3. The only argument advanced by learned counsel for applicant is that final report was filed before Magistrate concerned but the same has been rejected and he proceeded to issue non-bailable warrant against applicants which he could not have been done and it is liable to be quashed.
4. However, I find no force in the submission. When a final report is submitted before Court below it is wholly within the jurisdiction of Magistrate concerned to accept or reject it and in either case, it cannot be said that Magistrate has done anything illegal which is not provided in law. A bare perusal of record shows that after being summoned, accused applicants appeared and were enlarged on bail, thereafter, they absconded and then Court below has issued non- bailable warrant against them so as to secure their attendance for their trial. Even otherwise, this Court cannot examine defence of accused at this stage and the same will be examined during trial.
5. Similarly, while considering a prayer for quashing of entire proceedings in application under Section 482 Cr.P.C., this Court also cannot examine any defence of accused, which has yet to be placed before Court below. Stage of placing defence of accused does not arise at this stage and, therefore, this Court also will not examine such defence.
6. Time and again it has been highlighted by Supreme Court that while deciding application under Section 482 Cr.P.C. factual query and assessment of defence evidence. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not . In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (Emphasis added)
7. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
8. In view thereof, I do not find any reason to quash non-bailable warrant issued against them. This application lacks merit and is accordingly dismissed.
9. Interim order, if any, stands vacated.
Order Date :- 18.12.2019 Siddhant Sahu