Court No. - 15
Case :- APPLICATION U/S 482 No. - 29172 of 2009 Applicant :- Suneel Kumar And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravindra P. Srivastava,Anand Kumar Srivastava Counsel for Opposite Party :- Govt.Advocate,D.B. Mishra
Hon'ble Umesh Chandra Srivastava,J.
Heard Shri R.P. Srivastava, learned counsel for the applicants, learned A.G.A. for the State, Shri D.B. Mishra, learned counsel for opposite party no. 2 and perused the record.
Applicants have filed this application under section 482 Cr.PC with prayer seeking quashing the proceedings of Criminal Case No. 5381 of 2005 (State vs. Suneel Kumar and others), arising out of case crime no. 69 of 2005, under sections 419, 420, 467, 468, 471, 560, 120B I.P.C. P.S.
Harraiya, District Basti, pending in the court of Judicial Magistrate-I, Basti.
Learned counsel for the applicants has submitted that dispute between the parties is purely of civil nature and that applicants are being unnecessarily dragged into criminal prosecution on false and frivolous allegations. Applicants have not committed the forgery and cheating. Applicant no. 1 has purchased the land from one who was the owner of it after paying Rs. 2 lakhs as sale consideration. He has further submitted that applicant no. 1 has filed a suit of injunction also against opposite party no.2 in which stay order has been granted. He has further submitted that if opposite party no. 2 has any grievance against applicant, he may also file a civil suit in this regard but applicants cannot be criminally prosecuted unless the sale deed is held to be a forged document by a competent court.
Learned AGA and learned counsel appearing for opposite party no. 2, on the other hand submitted that if the cause of action gives rise to both civil and criminal liability, the criminal prosecution initiated by opposite party no. 2 against the applicant cannot be called in question on the premise that in respect of cause of action a civil suit ought to have been filed in respect of it. They further submitted that disputed questions of fact cannot be looked into in proceeding under section 482 Cr.P.C., that can be looked into during trial only. They have further submitted that from the evidence collected during the course of investigation the offence of forgery and cheating is made out against the applicants, therefore, proceedings initiated against them are not the abuse of process of court so that the same may be quashed. They have also submitted that an alternate remedy of discharge is available to applicants and, in view of that, present proceeding under section 482 Cr.P.C. is not maintainable as inherent power vested in court can be exercised only when no other remedy is available.
Having heard the respective submissions of learned counsel of both sides, I find that if cause of action gives rise to both civil as well as criminal liability, the criminal prosecution cannot be said to be passed on the ground that in respect of cause of action a civil suit ought to have been filed. The disputed questions of fact cannot be looked into in proceeding under section 482 Cr.P.C. The remedy of discharge being available under section 226/227 of the Criminal Procedure Code, the present application under section 482 Cr.P.C. is not maintainable as inherent jurisdiction can be invoked in rarest of the rare cases only to secure the ends of justice or to prevent the abuse of process of Court if no other remedy is available.
In view of the aforesaid, I do not see any merit in the application and the same is dismissed as such.
However, having regard to the facts and circumstances of the case, it is ordered that if applicants appear before the court below within three weeks from today and applies for bail, the court below shall decide the same expeditiously in accordance with law laid down by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and others, reported in (2009) 4 SCC 437 and Full Bench decision of this Court in the case of Smt. Amarawati and another v. State of U.P. reported in 2005 CRI. L.J. 755 and till then no coercive action shall be taken against them.
Order Date :- 28.5.2018 Bhanu