Court No. - 87
Case :- APPLICATION U/S 482 No. - 46561 of 2019
Applicant :- Zaheer @ Kala And Anr
Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rizwan Ullah Siddiqui Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the applicants and learned A.G.A. for the State and perused the record.
The present 482 Cr.P.C. application has been filed to quash the summoning order dated 04.08.2018 passed by ACJM-II, Saharanpur as well as entire proceeding of complaint Case No.
482 of 2016 (Sadab Vs. Zaher @ Kala and Others), under Sections- 452, 323, 324, 504 IPC Police Station- Nakud, District- Saharanpur, pending in the court of ACJM-II, Saharanpur.
Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case. Learned counsel further submits that the FIR lodged by O.P. No.2, against the applicants, was investigated by police party and final report was submitted therein. No offence was found against the applicants. Learned counsel further submits that O.P. No.2, filed the protest petition on the said final report, which was treated as complaint and applicants have been summoned after the statement of O.P. No.2, recorded under Section 200 of Cr.P.C., and his witnesses under Section 202 of Cr.P.C. Learned counsel further submits that the applicants have been summoned without any evidence available on record. Learned counsel for the applicants further submits that the whole proceeding is nothing but misuse process of law.
Learned A.G.A. has vehemently opposed and submits that at the stage of summoning of accused persons as well as taken congnizance of offence the merit and demerit of the case cannot be adjusted and sufficient material and evidence is available on record to prove the cognizable offence.
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 Gujarat AIR 2017 SC 4843, Sav. Kamal Shivaji Pokemaker Vs. State of Maharashtra AIR (2019) SC 847 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.
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 relate to disputed question of fact which cannot be adjudged 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 is refused.
However, as prayed at this stage, if applicants appear or surrender before the Court concerned within 30 days from today and apply for bail in the aforesaid case, their prayer shall be considered as expeditiously as possible preferably same day by the Court below in accordance with law.
With the aforesaid direction/observation, the instant application is disposed off.
Order Date :- 18.12.2019 S.K.