Court No. - 38
Case :- APPLICATION U/S 482 No. - 16349 of 2019 Applicant :- Vishal And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Praveen Kumar Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Sri Shailesh Kumar Shukla, learned counsel has filed his vakalatnama on behalf of opposite party no. 2, which is taken on record.
This application has been filed under Seciton 482 Cr.P.C. to quash the proceeding of Case No. 2834 of 2018 (State vs. Vishal and others) arising out of Case Crime No. 154 of 2018, under Sections 323, 504, 506, 427, 452, IPC, Police Station Sikrara, District Jaunpur pending in the court of Additional Chief Judicial Magistrate-II, Jaunpur and charge sheet dated 31.8.2018 and cognizance of order dated 24.10.2018 passed by Additional Chief Judicial Magistrate-II, Jaunpur.
Heard Sri Sanjeev Kumar Shukla holding brief of Sri Praveen Kumar, learned counsel for the applicants, Sri Shailesh Kumar Shukla, learned counsel for the opposite party no. 2 and learned AGA for the State are present.
Learned counsel for the applicants has submitted that the accused-applicants are innocent in nature and have falsely been implicated in this case. Charge sheet has been filed against the applicants under Section 323, 504, 506, 427, 452 IPC. The offence of Section 452 IPC is not made out, as such, remaining offences are non-cognizable offence, so the matter may be treated as a complaint case. The order passed by the A.C.J.M. is wholly illegal and against the provision of law. The entire proceedings is against the provision of law and also abuses the process of law.
Learned AGA has vehemently opposed the prayer made by the learned counsel for the applicants but could not dispute the aforesaid facts as argued by the learned counsel for the applicants.
Hon'ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana & Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir & Ors. Vs. State of Gujrat AIR 2017 SC 4843, after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
The brief facts of the case is that an F.I.R. was lodged by the O.P. No. 2 against the accused-applicants with the allegation that on 17.7.2018 at 5:00 pm, applicants armed with lathi danda kulhari and favda came at the house of O.P. no. 2, hurled abuses, beaten by fists and kicks, threatened to kill him. After investigation, the charge-sheet was submitted against the applicants.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicants. All the submissions made by the learned counsel for the applicants relates to disputed question of fact which cannot be adjudicated at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings of Case No. 2834 of 2018 (State vs. Vishal and others) arising out of Case Crime No. 154 of 2018, charge sheet dated 31.8.2018 and cognizance order dated 24.10.2018 is refused.
However, it is provided that if the applicants appear or surrender before the Court concerned within thirty days from today and apply for bail in the aforesaid case, their prayer for bail shall be considered as expeditiously as possible by the court below in accordance with law.
With aforesaid direction /observation, the instant application finally stands disposed of.
Order Date :- 25.4.2019 Saurabh