Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 8938 of 2018 Petitioner :- Vijay Kumar Singh And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Adarsh Singh,Adarsh Singh Counsel for Respondent :- G.A.
Hon'ble Sanjay Kumar Singh,J.
This application under Article 227 of the Constitution of India has been filed for quashing the order dated 05.06.2018 in Case No.809 of 2017 (Kuldeep Kumar Mishra vs. Vijay Kumar Singh and another) under sections 417 & 506 IPC, P.S. Cantt. District Varanasi and the order dated 16.11.2018 passed by Additional Session Judge/Special Judge, Special Court No.1 (Prevention of Corruption Act), Varanasi in Criminal Revision No.170 of 2018 (Vijay Kumar Singh and another vs. State of U.P. and another).
Heard learned counsel for the applicants as well as learned A.G.A. and perused the record.
It is submitted by the learned counsel for the applicants that applicant no.1 is aged about 66 years and applicant no.2 is aged about 81 years of old. Though no material document in support of about contention has been filed in the application but the said averment has been made in paragraph 17 of the application. It is submitted that there is a series of litigations between the petitioners and respondent no.2, who alleges himself to be manger of Committee of the institution, detail of litigation between the parties have been mentioned in Para 4 to 9 of the application. He next submitted that learned courts below did not apply their judicial mind while passing the order dated 5.6.2018 and 16.11.2018, hence the same are liable to be quashed.
The submissions made by the learned counsel for the applicants involve several intricate factual details and many disputed questions of fact related to the case. False implication due to malafide intention has been pleaded.
By invoking the inherent jurisdiction of this court the applicants cannot persuade the court to have a pre trial before the actual trial begins. The submissions made by the learned counsel for the applicants call for adjudication on pure questions of fact and while doing so even the submissions made on points of law can also be appropriately gone into by the trial court in this case.
The quashing of the complaint can also be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 make the position of law in this regard clear.
In the absence of any of the grounds recognized by the Apex Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is refused as I do not see any abuse of the courts process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless.
As requested, the applicants are permitted to appear before the concerned court within a month from today through their counsel and move an application claiming discharge provided if it has not already been decided. The concerned court shall after hearing the counsel decide the application on merits in accordance with law within a period which shall not exceed a period of three months from today.
No coercive measures shall be adopted against the applicants for a period of three months from today or till disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand if the lower court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
It is clarified that if applicants do not avail of this order within the stipulated period of time no application for extension of time shall be entertained.
With the above observations, this application stands disposed of.
Order Date :- 30.11.2018/SKD