Allahabad High Court
Mirza Irshad Beg @ Hasan Beg vs State Of U.P. Thru. Prin. Secy. Home ... on 11 May, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:32491 Court No. - 13 Case :- APPLICATION U/S 482 No. - 4629 of 2023 Applicant :- Mirza Irshad Beg @ Hasan Beg Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Syed Husain Mehdi S.H.Me,Syed Raza Mehdi Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the applicant, learned A.G.A. and perused the record.
2. In view of order proposed to be passed, issuance of notice to opposite party no.2 is dispensed with.
3. The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned summoning order dated 26.9.2022 passed by the ACJM-1st, Faizabad in Complaint Case No. 492 of 2021, under Sections 406,504,506 I.P.C., Police Station- Purakalandar , District- Faizabad/Ayodhya .
4. Learned counsel for applicant has submitted that earlier the applicant had moved the complaint case against the opposite party no.2 before the S.S.P., Ayodhya on 28.5.2019, which is annexed as Annexure-12 to the affidavit. When this fact came into knowledge of the opposite party no.2, then the opposite party no.2 on false and frivolous grounds lodged the FIR against the applicant which was registered as case crime no. 274/2019, U/s 406/504/506 IPC and Sections 3(1)(da), 3(1)(dha) of SC/ST Act in which the alleged date of incident is mentioned as 20.5.2019 but the FIR was lodged on 24.6.2019. After investigation, the investigating officer submitted the final report before the magistrate court while the order for lodging of the FIR was passed by the Special Judge, SC/ST Act. Being aggrieved with this final report, protest petition was filed by the opposite party no.2 on 2.3.2021 before the learned ACJM, Faizabad, which was treated as a complaint case U/s 190(1)(a) CrPC. Thereafter, the trial court merely on the basis of statements of the opposite party no.2 and other witnesses recorded U/s 200 & 202 CrPC respectively and without application of judicial mind wrongly summoned the applicant U/s 460,504,506 IPC. It is further submitted that earlier the applicant also moved the complaint case bearing Case No. 1443/2019 against the opposite party no.2 on 6.6.2019, which is still pending before the ACJM-1st, Faizabad. The counsel further argued that there is money dispute between the applicant and opposite party no.2. Only to give colour of criminality, the applicant has been falsely roped in this case.
5. It is next submitted that no offence as described in the complaint case or in the statement of the complainant as well as witnesses recorded during the course of investigation has taken place and the whole story as narrated in the complaint case as well as in the statements of the complainant as well as witnesses have been cooked and manufactured, therefore, the court below has materially erred in summoning the applicant, as such the orders are liable to be set aside.
6. Before arguing the case on merits, learned counsel for the applicant while pressing the present petition submits that the court below while summoning the applicant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the court below has not taken into consideration the material placed before the trial court and, therefore, the trial court has materially erred in summoning the applicant.
7. So far as quashing of entire proceedings is concerned, from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the applicant. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge according to the provisions prescribed in Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court.
8. So far as the cognizance and summoning order passed by the learned trial court is concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and petitioner failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
9. The prayer for quashing the impugned summoning order is refused.
10. However, considering the facts and circumstances of the case, it is provided that if the applicant/petitioner appears before the court concerned within 15 days from today and applies for bail, then his bail application shall be considered and decided in accordance with law propounded by the Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another (Special Leave to Appeal (Crl.) No.5191 of 2021, decided on 07.10.2021. In this case Hon'ble the Apex Court has already laid down guidelines for grant of bail, without fettering the discretion of the courts concerned and the statutory provisions governing consideration in grant of bail, no specific directions need be issued by this Court as it is expected that the court concerned will take into consideration the necessary guidelines already issued by the Apex Court.
11. For a period of 15 days from today, no coercive action shall be taken against the applicant.
12. Accordingly, the application under Section 482 Cr.P.C. is disposed of.
Order Date :- 11.5.2023 Shravan