Allahabad High Court
Abhishek Alias Dumdum And Another vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 12 May, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 2498 of 2022 Applicant :- Abhishek Alias Dumdum And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Vivek Chandra,Krishna Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Supplementary affidavit filed today in Court is taken on record.
Heard learned counsel for petitioners, learned A.G.A. for the State and perused the material available on record.
By means of this petition under Section 482 Cr.P.C. the petitioners have sought following reliefs:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to quash the entire proceedings of Criminal Case No. 7280 of 2021 arising out of charge sheet no. 235 of 2021 submitted by the police relating to Case Crime No. 848 of 2021, under Sections 504 and 506 IPC, Police Station Kotwali Ayodhya, District Faizabad/Ayodhya, (State Vs. Rajaram Jaiswal and others) pending in the court of learned Civil Judge (Jr. Div.) Sadar, Faizabad as well as summoning order dated 22.09.2021 passed by learned Chief Judicial Magistrate, Faizabad/Ayodhya may also be quashed."
Learned counsel for petitioners has submitted that the civil suit is pending against the petitioner's father and opposite party no. 2. Now the father of the petitioners is no more. Further submission is that FIR of this case was lodged against the petitioners and his father. After investigation, the police submitted charge sheet under the petitioners and his father under Sections 504 and 506 IPC. The main contention of learned counsel for petitioners is that on the alleged date of incident, the petitioners were not present on the spot. The petitioner no. 1 is the student of J.N.U. and his career is at stake. The court below without applying its judicial mind has passed the summoning order against the petitioners under Sections 504 and 506 IPC.
Learned A.G.A. for the State has vehemently opposed this petition and has submitted that prima facie case for the offence under Sections 504 and 506 IPC is made out against the petitioners.
Before arguing the case on merits, learned counsel for the petitioners while pressing the present petition submits that the court below while summoning the petitioners 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 along with charge sheet and, therefore, the trial court has materially erred in summoning the petitioners.
So far as quashing of charge sheet and 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 petitioners. 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. Considering the arguments of learned counsel for the parties and going through the record, it cannot be said that no offence is made out against applicant and all the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings under Section 482 Cr.P.C.
The prayer for quashing the proceedings and charge sheet is refused.
So far as regard the cognizance and summoning order passed by the learned trial court 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 appellant 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 disputed defence of the petitioner cannot be considered at this stage. In the absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, which is already refused. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless.
As requested, the petitioners are permitted to appear before the concerned court within fifteen days from today through their counsel and move an application claiming discharge. The concerned court shall after hearing the counsel decide the application on merits, in accordance with law, within a period of two months from today, which shall not exceed.
No coercive measure shall be adopted against the petitioners for a period of two months from today or till the disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the lower court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
With the aforesaid directions/observations, this petition under Section 482 Cr.P.C. is disposed of.
Order Date :- 12.5.2022 Virendra