Court No. - 83
Case :- APPLICATION U/S 482 No. - 5105 of 2021 Applicant :- Shivanshu Singh @ Punnu Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Diwakar Shukla Counsel for Opposite Party :- G.A.,Ashish Bajpayee,Sanjeev Kumar Bajpai
Hon'ble Rajeev Misra,J.
Heard Mr. Diwakar Shukla, learned counsel for applicant, learned A.G.A. for State and Mr. Ashish Bajpayee, learned counsel representing opposite party 2.
This application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 11.11.2020 submitted in Case Crime No. 131 of 2020, under Sections 308, 323, 504 IPC, P.S. Hathgaon, District Fatehpur, as well as entire proceedings of consequential Case No. 621 of 2021 (State Vs. Shivanshu Singh @ Punnu Singh), arising out of above mentioned case crime number and now pending in the Court of Civil Judge (S.D.)/Additional Chief Judicial Magistrate, Fatehpur.
Learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in above mentioned Case Crime number. Allegations made in F.I.R. are false and concocted. It is then contended that dispute between parties is purely a civil dispute which has been dragged into criminal litigation by first informant. It is next contended by learned counsel for applicant that accused-applicant is nephew (bhatija) of opposite party 2. It is also submitted that there is civil dispute between parties and in respect of above, attention of Court has been invited to the statement of first informant/opposite party 2 as recorded under Section 161 Cr. P.
C. It is thus submitted that present criminal proceedings have been engineered on account of an ulterior motive in the backdrop of civil dispute pending between parties. It is, therefore, 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. and Mr. Ashish Bajpayee, learned counsel representing opposite party 2 have opposed this application. It is contended by learned A.G.A. as well as Mr. Ashish Bajpayee that after registration of F.I.R. dated 6.11.2020, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. After completion of investigation, Investigating Officer on the basis of statements of witnesses examined under Section 161 Cr. P. C. and other material collected during course of investigation, which is substantially adverse to applicant opined to submit a charge sheet. Accordingly, Investigating Officer submitted charge sheet dated 11.11.2020, whereby named accused applicant has been charge-sheeted under sections 323, 504, 308 IPC. In the charge sheet so submitted, as many as 8 prosecution witnesses have been nominated.
After submission of aforesaid charge-sheet, cognizance was taken upon same by Court concerned. As a consequence of above, aforementioned criminal case came to be registered. Thereafter, applicant has been summoned in above mentioned criminal case.
On the aforesaid premise, learned A.G.A. contends that it cannot be said at this stage that prosecution of applicants is false or there is no material to support the prosecution of applicants.
It is next contended by learned A.G.A. that at this stage, Court is not required to weigh the evidence only a prima facie case has to be seen. In support of above, he has relied upon paragraph 37 of judgement 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]."
It is further contended that charge sheet is outcome of investigation. Since no deficiency, illegality or irregularity has been pointed out in investigation of concerned case crime number, consequently, charge sheet cannot be challenged.
It is lastly submitted that since entire material collected by Investigating Officer during course of investigation has not been brought on record, submissions urged by learned counsel for applicants in support of present application or otherwise cannot be examined in view of observation made by Apex Court in last sentence of paragraph 25 of judgement in Kaptan Singh Vs. State of Uttar Pradesh and others, 2021 SCC OnLine SC 580, which reads as under:-
"The High Court has failed to notice and/or consider the material collected during the investigation."
On the basis of above, learned A.G.A. submits that no indulgence be required by this Court.
When confronted with aforesaid, learned counsel for applicant could not overcome the same.
Having heard learned counsel for applicant, 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 it's jurisdiction under section 482 Cr.PC. This Court in exercise of it's 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, application fails and is liable to be dismissed. It is accordingly dismissed.
Order Date :- 21.9.2021 HSM