Court No. - 46
Case :- APPLICATION U/S 482 No. - 2729 of 2006 Applicant :- Vijay Shanker Mishra And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- A.K. Shukla,S.K. Dubey Counsel for Opposite Party :- Govt. Advocate,A K Ojha
Hon'ble Naheed Ara Moonis,J.
Case called out in the revised call. No one has appeared on behalf of the applicants to address the court. However, the learned A.G.A. is present for the State and perused the record.
The instant petition has been filed by the applicants with a prayer to quash the entire criminal proceedings of complaint case no. 5148 of 2004 (Usha Ojha Vs. Vijay Shanker Mishra and others), under Sections 323, 504, 506 and 452 I.P.C., police station Jhunsi, district Allahabad pending in the court of Additional Chief Judicial Magistrate, Room No. 2, Allahabad.
On 3.4.2006 the following order was passed in the aforesaid case, which is reproduced below;
"Sri A.K. Ojha has filed his power on behalf of the respondent no. 2, the same is taken on record. He prays for and is granted one weeks' time to file counter affidavit. He will serve the copy of the counter affidavit on the learned counsel for the applicant. Applicant will have two days thereafter to file rejoinder affidavit.
Put up for admission/final disposal on 17.4.2006.
Till that date the applicants who are twenty in number shall not be arrested."
Per contra learned A.G.A. has contended that the innocence of the applicants cannot be adjudged at the pre trial stage. The learned Magistrate has taken cognizance of offence, which does not suffer from any procedural illegality. The allegation made against the applicants cannot be sifted at this stage.
From the perusal of the materials on record and looking into the facts it appears that despite the respondent no. 2 filed the counter affidavit in 2006 itself no rejoinder affidavit has been filed on behalf of the applicants. The instant application cannot be kept pending at the dint of the interim order dated 3.4.2006.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:- (i) R. P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl) 426, (iii) State of Bihar Vs. P. P. Sharma, 1992 SCC (Crl) 192.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S. W. Palanattkar & others Vs. State of Bihar, 2002(44) ACC 168, it has been held by the Hon'ble Apex Court, that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code; (ii) to prevent abuse of the process of the court; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an enquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing the proceeding is refused. There is no merit in this application filed under Section 482 Cr.P.C., thus the same is accordingly dismissed. The applicants have ample opportunity to raise all the objections at the appropriate stage.
The interim order dated 3.4.2006 is hereby vacated. The court below is directed to proceed with the case in accordance with law.
Order Date :- 30.1.2019 Shahnawaz