Allahabad High Court
Omkar Rathaure And Ors. vs The State Of U.P And Anr. on 28 January, 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. - 7194 of 2013 Applicant :- Omkar Rathaure And Ors. Opposite Party :- The State Of U.P And Anr. Counsel for Applicant :- S.H Ibrahim,Kazim Ibrahim Counsel for Opposite Party :- Govt. Advocate Hon'ble Suresh Kumar Gupta,J.
Heard Mr. S.H. Ibrahim, learned counsel for applicant, Mr. Arvind Kumar Tripathi, learned A.G.A. for the State and perused the material available on record.
By means of this application under Section 482 Cr.P.C., the applicant has sought following relief:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to set aside the entire proceedings of Complaint Case No. 54 of 2013 (Giriraj Rathaure Vs. Omkar Rathaure and others) under Sections 452, 323, 504 and 506 IPC, Police Station Mohammadi, District Lakhimpur Kheri pending in the court of learned Judicial Magistrate, Mohammadi, District Kheri."
Learned counsel for applicant has submitted that wife of applicant no. 1 and sister of respondent no. 2 lodged an FIR on 15.9.2012 against the applicant no. 1 and his family members vide Case Crime No. 594 of 2012, under Sections 498-A, 323, 504 and 506 IPC, and Section 3/4 of the Dowry Prohibition Act Police Station Kotwali Sadar, District Shahjahanpur, in which final report was submitted. Only to create pressure this false and frivolous complaint has been registered by the opposite party no. 2 against the applicants. Further submission is that on the basis of statements of complainant recorded under Section 200 Cr.P.C. and witnesses under Section 202 Cr.P.C. the trial court passed the summoning order against the applicants but no disclosed offence is made out against the applicants. It is further submitted that compromise arrived at between the parties.
It is next submitted that no offence as described in the complaint or in the statement of the witnesses recorded under Sections 200 Cr.P.C. or 202 Cr.P.C. and the whole story as narrated in the complaint as well as in the statement of the witnesses has been cooked and manufactured, therefore, the trial court 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 trial court while summoning the applicants 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 trial court 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 trial court has not taken into consideration the material placed before the trial court, therefore, the trial court has materially erred in summoning the applicants.
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 applicants. 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 they are free to take all the submissions in the said discharge application before the trial court.
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 petitioners failed to adduce any evidence which caused prejudiced to them. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
However, it is provided to the applicants to appear before the trial court and if they 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.
The applicants also is at liberty to move compromise application at the appropriate stage.
Accordingly, the petition under Section 482 Cr.P.C. is disposed of.
Order Date :- 28.1.2023 Virendra