Allahabad High Court
Rahamat Khan And Another vs State Of U.P. Thru. Prin. Secy. Home, ... on 22 February, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- APPLICATION U/S 482 No. - 1753 of 2023 Applicant :- Rahamat Khan And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others Counsel for Applicant :- Anurag.S.Kaalesh,Dinesh Chand Verma Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicants, learned A.G.A. and perused the record.
In view of order proposed to be passed, issuance of notice to opposite parties is dispensed with.
The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned summoning order dated 17.1.2023 as well as the entire proceedings of Complaint Case No. 104 of 2021, under Sections 376 (DA) I.P.C. & Section 5(g)/6 of Protection of Children from Sexual Offence Act, Police Station- Kotwali Nanpara, District- Bahraich.
Learned counsel for applicants has submitted that the opposite party no.2 moved the false and frivolous application U/s 156(3) CrPC against the applicants and the said application was treated as complaint case. Thereafter, on the basis of statements of the opposite party no.2 and other witnesses recorded U/s 200 & 202 CrPC respectively, the trial court without applying judicial mind wrongly summoned the applicants.
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 applicants, as such the orders are liable to be set aside.
Before arguing the case on merits, learned counsel for the applicants 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 applicants.
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.
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.
The prayer for quashing the impugned summoning order as well as impugned proceedings is refused.
However, considering the facts and circumstances of the case, it is provided that if the applicants/petitioners appear before the court below and apply for bail, then their 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.
Accordingly, the application under Section 482 Cr.P.C. is disposed of.
Order Date :- 22.2.2023 Shravan