Allahabad High Court
Pravesh Kumar @ Bittu vs State Of U.P. And Another on 22 February, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- APPLICATION U/S 482 No. - 41560 of 2022 Applicant :- Pravesh Kumar @ Bittu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Aditya Prasad Mishra Counsel for Opposite Party :- G.A.,Mahesh Sharma Hon'ble Rajeev Misra,J.
Heard Mr. Aditya Prasad Mishra, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
Challenge in this application under Section 482 Cr.P.C. is to the summoning order dated 15.1.2016 passed by Chief Judicial Magistrate, Baghpat in Complaint Case No. 5018 of 2015 (Subhashana Vs. Pankaj) as well as the entire proceedings of above mentioned complaint case, now pending in the Court of Chief Judicial Magistrate, Baghpat.
At the very outset, Mr. Mahesh Sharma, the learned counsel representing complainant/opposite party 2 has raised a preliminary objection regarding the maintainability of present application. He submits that against the impugned order dated 15. 1.2016, Criminal Revision No. 65 of 2016 (Ravindra and 5 others Vs. State of U.P. and another) was filed before District and Sessions Judge (S.C./S.T.) Act, Baghpat, in which applicant Pravesh Kumar Bittu is also a co-revisionist. Aforementioned Criminal Revision was dismissed.
Feeling aggrieved by the summoning order dated 15.1.2016 passed by concerned Magistrate as well as the order dated 27.4.2017 passed by Additional District and Sessions Judge (S.C./S.T.) Act, Baghpat, accused applicant approached this Court by means of petition under Article 227 of the Constitution of India i.e. Petition No. 5306 of 2017 (Ravindra and 5 others Vs. State of U.P. and another), which was disposed of finally, vide order dated 4.10.2017. For ready reference, order dated 04.10.2017 is reproduced herein under:-
"Sri Devendra Kumar Tiwari, holding brief of Sri Shyam Shanker Shukla, learned counsel for the petitioners and learned A.G.A are present.
Sri Anil Kumar Shukla, filed his Vakalatnama on behalf of respondent no. 2.
Heard learned counsel for the petitioners, learned A.G.A for the State and learned counsel for the opposite party no. 2.
This petition is moved by the petitioners to quash the order dated 15.01.2016 passed by Chief Judicial Magistrate, Baghpat in complaint case no. 5018 of 2015 (Smt. Subhasna Vs. Pankaj & others) and order dated 27.04.2017 passed by Additional Sessions Judge, (Special), (SC/ST Act) Baghpat.
Learned counsel for the petitioner argued that in this case F.I.R was lodged against unknown person final report was submitted by Investigating Officer after that the protest petition was moved in the Court which was dismissed and case was registered as a complaint case bearing no. 5018 of 2015 and in this complaint case vide order dated 15.01.2016 petitioners were summoned as accused under section 302 I.P.C by the Chief Judicial Magistrate, Baghpat against order dated 15.01.2016 the revision was filed and vide order dated 27.04.2017 passed by Additional Sessions Judge, (Special), (SC/ST Act) Baghpat the revision was dismissed and the order dated 15.01.2016 passed by Chief Judicial Magistrate, Baghpat was confirmed.
Learned counsel for the petitioners argued that they are falsely implicated in this case due to enmity as they are the witnesses in an another murder case in which the son of respondent no. 2 is accused. This above mentioned complaint case has been instituted by respondent no. 2 to pressurize the appellants, order dated 15.01.2016 and 27.04.2017 suffer from infirmities and irregularities.
Learned A.G.A and learned counsel for the respondent argued that in this case Chief Judicial Magistrate, Baghpat recorded the statement of witnesses under section 200 Cr.P.C and under section 202 Cr.P.C and after perusal of the statement of witnesses and the evidence available on record order dated 15.01.2016 was passed and revisional order dated 27.04.2017 is also passed on merit there is no illegalities or infirmities in orders dated 15.01.2016 and 27.04.2017.
Learned counsel for the respondent no. 2 also argued that petitioners no. 1 and 2 have also already moved an application under section 482 Cr.P.C bearing no. 19236 of 2017 Ashok & Another Vs. State of U.P. & Another to quash the proceedings of this complaint case no. 5018 of 2015 (Smt. Subhasna Vs. Pankaj & others) vide order dated 23.06.2017 this court has already dismissed this Miscellaneous Application No. 19236 of 2017 and the prayer of applicants to quash the criminal proceedings for the complaint case of 5018 of 2015 was refused. Petitioner's have concealed this fact on this ground also this petition no. 5306 of 2017 is not maintainable.
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 at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. 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 applicant has got a right of discharge under Section 239 or 227/228, or 245 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.
Considering the facts and circumstances of the case I do not find any ground to quash the orders dated 15.01.2016 passed by Chief Judicial Magistrate, Baghpat in complaint case no.5018 of 2015 (Smt. Subhasna Vs. Pankaj & others) and order dated 27.04.2017 passed by Additional Sessions Judge, (Special), (SC/ST Act) Baghpat. Therefore, the prayer for quashing the above mentioned orders are here by refused.
Petition is disposed of accordingly."
On the above premise, the learned counsel for complaint/opposite party 2 submits that since present application is the second application for the same cause of action, therefore, same is not maintainable and, therefore liable to be dismissed by this Court.
When confronted with above, the learned counsel for applicant could not overcome the same.
As a result, present application fails and is liable to be dismissed.
It is, accordingly, dismissed.
Order Date :- 22.2.2023 HSM