Court No.-27 Reserved on 13.12.2018 Delivered on 19.12.2018
Case :- APPLICATION U/S 482 No.12681 of 2010
Applicant :- Smt. Sugra Begum
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bijai Prakash Tiwari Counsel for Opposite Party :- Govt.
Advocate,Abrar.Ahmad,Atul Kr. Ist Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Bijai Prakash Tiwari for the petitioner and Sri Atul Kumar for the original complainant.
2. Smt. Sugra Begum just filed this petition challenging the cognizance taken by Special Judicial Magistrate, Kanpur Nagar, pursuant to case no. 03176 of 2008. A notice was being issued by this Court on 17.5.2010 by passing the following order:-
“Heard learned counsel for the applicant as well as Sri Abrar Ahmad, learned counsel for respondent no.2 and learned A.G.A. in opposition.
Issue notice to respondent No. 2 returnable within three weeks. Learned AGA as well as respondent No. 2 may file counter affidavit within a period of three weeks. Learned counsel for the applicant will have the same time to file rejoinder affidavit.
List this case in the second week August 2010 before the appropriate Bench.
Till the next date of listing, further proceedings of the Complaint Case No.3176 of 2008, Naseem Ahmad Versus Sugrabegum for offences under Section 420 IPC, Police Station Kotwali, pending in the court of Special Chief Judicial Magistrate, District Kanpur Nagar shall remain stayed against the applicant.
Order Date :- 17.5.2010”
3. The proceedings have remained stayed. The genesis of litigation arose because of an application preferred by opposite party no.2 and the Court issued directions under Section 156 (3) of Criminal Procedure Code. The learned Judge passed an order on 2.9.2008 for lodging of a complaint and First Information Report. Order dated 2.9.2008 is also under challenge.
4. A sum of Rs.2,50,000/- was already withdrawn by respondent no.2 on 8.6.2007 and, therefore, the summons under Section 420 Cr.P.C. was bad. The summoning order dated 29.1.2010 is itself bad in the eye of law and does not fulfill the contours laid down in the case of Avadhutanand Giri @ Swami Avadhutanand Giri @ Mahant Swami Avadhutanand Giri Vs. State of U.P. and another, 2018 (10) ADJ 231.
5. The jurisdiction of this Court under Section 482 of Cr.P.C. can be invoked as earlier outlined by Division Bench at Lucknow of this Court in Misc. Bench No.3808 of 2017 (Anil Kumar Singh and another Vs. State of U.P. and others), decided on 17.2.2017. Now, it would be better to reproduce relevant portion of paragraph no.6 of the said judgement:-
"6. We have considered the contention of learned counsel for the petitioner(s), in context of the material/pleadings relied on by the petitioner(s), in context of judgment rendered by Hon'ble Supreme Court of India in Rajiv Thappar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. In Rajiv Thappar's case (supra), the following (relevant portion) has been held:-
29. ...........................................
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:
30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant?
30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
(Emphasised by us)
30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.?”
6. This Court is of the considered opinion that the material/pleadings on which learned counsel for the petitioner(s) has relied, is not such as would rule out and displace the assertions contained in the charges/ allegations levelled against the accused; and the material produced is not of sterling and impeccable quality as would persuade reasonable person to dismiss and condemn the actual basis of the accusation as false. the basis of the facts, the learned Counsel for the petitioner has relied on the following judgments:-
(i) State of U.P. and another Vs. R.K. Srivastava and others, 1990 ALL.L.J. 62;
(ii) Mohammed Ibrahim Vs. State of Bihar, 2009 LawSuit (SC) 1114;
7. Once I held that the learned Judge has not even looked into the documentary evidence whereby it can be seen that it is a civil dispute, the summoning order cannot stand test laid down by this Court and the Apex Court and will have to be quashed.
8. The submission of the learned counsel for the complainant is that there are difference of signature in Hindi and in English. All these facts ought to have been seen by the learned Judge and ought to have given its opinion thereafter it has given the summoning order.
9. In that light of the matter, summoning order is bad and is hereby quashed.
10. The appeal is allowed.
Order Date :- Dec. 19, 2018 Irshad