Allahabad High Court
Nitesh Kumar Singh vs State Of U.P.Thru.Prin.Secy.Home ... on 19 July, 2022
Bench: Rajan Roy, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- CRIMINAL MISC. WRIT PETITION No. - 23135 of 2021 Petitioner :- Nitesh Kumar Singh Respondent :- State Of U.P.Thru.Prin.Secy.Home Lucknow And Ors. Counsel for Petitioner :- Harish Chandra Counsel for Respondent :- G.A. Hon'ble Rajan Roy,J.
Hon'ble Shekhar Kumar Yadav,J.
We have perused the order of Hon'ble the Supreme Court dated 16.7.2022 passed in Special Leave Petition (Criminal) No. 6065 of 2022, Nitesh Kumar Singh v. State of U.P. & anr.
This petition was filed on 5th of October, 2021 challenging the First Information Report wherein the petitioner is the accused under sections 332, 504 I.P.C. and section 3(1)(r) and 3(1)(s) of the Scheduled Castes and Scheduled Tribes Act 1989, Amendment Act 2015. During pendency of this petition chargesheet dated 17.12.2021 was filed before the trial court and cognizance of it was taken on 11.02.2022. Against the chargesheet dated 17.12.2021 and the cognizance/summoning order 11.2.2022 as also the entire criminal proceedings pertaining to session case no. 238 of 2022 arising out of case crime No. 495 of 2022 under sections 332/504, I.P.C. and sections 3(1)(Da)(Dha) of SC/ST Act an appeal was filed before this court bearing criminal appeal No. 982 of 2022 under sections 14-A(1) of the SC/ST Act 1989. The said appeal was disposed of on 6.5.2022. Relevant extract of the said judgment is quoted hereinbelow-
"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 appellant. 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 petitioners 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 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 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 charge sheet as well as impugned cognizance order is refused.
However, considering the facts and circumstances of the case, it is provided that if the appellant appears before the court below 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 as mentioned in Category C offence. 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.
For a period of 15 days from today, no coercive action shall be taken against the applicant.
Accordingly, the appeal u/s 14-A(1) of SC/ST Act is disposed of. "
Against the said order the special leave petition, referred hereinabove, was filed wherein it has been noticed that while dismissing the appeal on 6.5.2022 for 15 days it was ordered that no coercive action shall be taken against the applicant/appellant therein, however, in this petition an interim order dated 7.10.2021 is operating, according to which the arrest of the petitioner has been stayed, subject to cooperation in the investigation. Obviously the interim order herein was passed when no chargesheet had been filed, therefore, in these circumstances the Supreme Court has asked us to dispose of the proceedings in this writ petition by 5th of August, 2022.
Having heard learned counsel for the petitioner and perused the record and also considering the fact that chargesheet has already been filed against the petitioner before the court below and cognizance has also been taken and also that the said chargesheet and cognizance order were the subject matter of Criminal Appeal No. 982 of 2022, which has been decided on 6.5.2022 as aforesaid, against which the Special Leave Petition referred hereinabove has been decided on 15.7.2022 with a categorical observation that it is not a fit case for interference with the order dated 6.5.2022, we are of the opinion that no further adjudication is required in these proceedings which were initiated for quashing of F.I.R, especially as from a reading of the F.I.R. it cannot be said at this stage that no cognizable offence is made out, that is why the chargesheet has been filed.
In view of the above, we dismiss this petition and discharge the interim order passed earlier, but without prejudice to the rights of the petitioner in the pending trial. The writ petition is dismissed.
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(Shekhar Kumar Yadav, J.) (Rajan Roy, J.) Order Date :- 19.7.2022 A.Nigam