Allahabad High Court
Lavkush Umar vs State Of U.P. And Anr. on 14 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 22271 of 2014 Applicant :- Lavkush Umar Opposite Party :- State Of U.P. And Anr. Counsel for Applicant :- Brijesh Sahai,Rajiv Dwivedi Counsel for Opposite Party :- Govt.Advocate,Heera Lal Pandey(In Person),Kanchan Singh,Mahendra Kumar Sharma,Pratik Kumar Shukla,Ratan Kumar Mishra Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Brijesh Sahai, Senior Advocate assisted by Sri Rajiv Dwivedi, learned counsel for the applicant, Sri Heera Lal Pandey, appearing in person as Opposite Party No. 2, Sri Pratik Kumar Shukla, learned counsel for the O.P. No. 2 and Sri B.A. Khan, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the order dated 3.10.2013 passed by learned Chief Judicial Magistrate, Mirzapur in Criminal Case No. 7456 of 2013 under Section 364 I.P.C., P.S. Kotwali City, District Mirzapur.
Learned counsel for the applicant states that the name of the accused applicant is mentioned in the F.I.R. only on the basis of suspicion. In statement under Section 161 Cr.P.C. of the victim recorded on 8.12.2012, it has come into light that as soon as vehicle came near her, she was dragged inside the vehicle thereafter, she was closed in a room. She did not recognize all the four persons who had abducted her but while they were calling, they were talking to each-other saying that 'padwa sale ko bejjat karna tha' meaning thereby that informant was to be insulted. Further it is stated by the victim that she heard the accused saying on phone that 'Pappu Bhai, Lavkush Bhai (applicant) aur Anupam Bhai aapka kaam ho gaya'. Citing the said statement of the victim it was argued that nowhere the said statement indicates that there was any intention to abduct the victim just to commit murder of her as only intention of the accused was to insult the informant, therefore, the offence under Section 364 I.P.C. could not be made out. There was no statement recorded of the victim under Section 164 Cr.P.C. However it was pointed out that there was deep rooted enmity between the accused applicant and the O.P. No.2 and to substantiate the same, the attention is drawn of the Court towards the compromise which is stated to have been entered into between the accused applicant along with co-accused and the informant of this case, the documents in this regard is annexed at page no. 22 and 23 of the Rejoinder-Affidavit. Attention was also drawn of this Court towards last two paras of page no. 23 which contains that the second party i.e. informant was under misconception of fact and due to suspicion as litigations were going on between the parties, this case was lodged and that the daughter of the informant does not want to contest the aforesaid case.
Attention was also drawn of this Court towards F.I.R. lodged by son of the applicant against informant of this case being Crime No. 136 of 2001 under Sections 147, 504, 506, 427 and 336 I.P.C. which is annexed at page nos. 70 and 71 of the paper book in which charge-sheet was submitted. Another case was filed by the accused applicant against the O.P. No.2. under Sections 147, 504, 506 (2) and 336 I.P.C. in which charges have been framed in Criminal Case No. 886 of 2002 (page no. 76). The attention is also drawn towards the F.I.R. lodged by applicant against the informant being Crime No. 175 of 1996 under Sections 147, 336, 504 and 506 I.P.C. (page nos. 77 and 79) in which charge-sheet was also submitted, therefore, it was ultimately argued that on the basis of these litigations which show deep rooted enmity, the accused applicant has been falsely implicated and the trial court has wrongly passed the impugned order which needs to be quashed.
On the other hand, learned counsel for the O.P. No. 2, O.P. No. 2 present in person and learned A.G.A. have vehemently opposed the prayer of quashing and have brought to the notice of this Court that co-accused, Anoop Sarraf had moved an application under Section 482 Cr.P.C. No. 37526 of 2013 which was disposed of vide order dated 23.10.2013 by this Court and the other co-accused, Rajeev Mehrotra had also preferred an Application under Section 482 Cr.P.C. No. 21413 of 2014 and that too was disposed of and quashing of the proceedings was refused vide order dated 11.06.2014, therefore, the case of the present accused is identical to the aforesaid two accused. There is no reason to set-aside the impugned order, therefore, quashing of the same should be refused. It is further argued that the alleged compromise which is stated to have been entered into between the accused and the O.P. No.2 is forged document as never any such compromise has been entered between the two parties nor any document was executed in this regard.
I have gone through the F.I.R.
O.P. No. 2 has mentioned in it that on 7.12.2012 at about 10:30 A.M., his daughter had gone to purchase the domestic articles and did not return then one phone phone call was received on the telephone no. of the informant and when the same was received, his daughter was stating that she should be saved otherwise, she would be killed, therefore on suspicion, F.I.R. was lodged against appplicants as because of enmity with Lavkush Umar (accused applicant), Pappu @ Rajeev Mehrotra and Anoop Sarraf, they could be involved in this occurrence and might have abducted and murdered his daughter, thereafter investigation was conducted in this case and final report was submitted by I.O. on 11.01.2013, document of which is annexed at page no. 55 as annexure 11), thereafter protest petition was filed by O.P. No. 2 which was considered by the court below and the impugned order has been passed thereon on 3.10.2013 summoning the accused applicant along with other two co-accused.
The perusal of the said impugned order shows that the trial court has after having gone through the Case Diary, recorded that the victim in her statement under Section 161 Cr.P.C. stated that while she was standing on the intersection in order to get her mobile repaired, there was one vehicle parked in which four persons were sitting and as soon as the said vehicle came near her, all of a sudden, she was dragged inside that and on mobile phone they were saying that 'Pappu Bhai, Lavkush Bhai (applicant) or Anupam Bhai aapka kaam ho gaya'. On the basis of said statement of the witness, the Court below has summoned the accused applicant under the above-mentioned sections. It would be in the fitness of things to be mention here that the trial court has found the said statement of the victim to be sufficient to face trial under Section 364 I.P.C. which statement cannot be disbelieved at this stage in proceeding under Section 482 Cr.P.C. as the same would require full trial. The argument made by learned counsel for the applicant that he has been falsely implicated due to animosity between two sides to which learned counsel for the O.P. No.2 has stated that there is admittedly animosity and in that animosity, this occurrence is given effect to.
The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
In view of the above, I do not find sufficient ground to interfere in the impugned order passed by the court below in inherent jurisdiction of this Court under Section 482 Cr.P.C.
The prayer for quashing the proceedings is refused.
The applicant shall appear before the court below within 45 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 45 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the above direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 14.10.2019 A. Mandhani