Allahabad High Court
Nishant vs State Of U.P. And Another on 10 July, 2020
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 47 Case :- APPLICATION U/S 482 No. - 11956 of 2020 Applicant :- Nishant Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Sunil Kumar Singh, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This application u/s 482 Cr.P.C. has been filed to quash the charge sheet dated 06.04.2018 as well as Non Bailable Warrant dated 29.02.2020 passed in Special S.T. No.321/2020 (State Vs. Nishant), under Sections 147, 148, 352, 323, 325 I.P.C. and 3(1)(Da) and 3(1)(Dha) of SC/ST Act, Police Station-Shahibabad, District-Ghaziabad, pending before the court of Special Judge, (S.C./S.T. Act), Ghaziabad.
Brief facts of the case are that on 27.08.2017, when the opposite party no.2 was established tower on his home after granting permission of Tower Company. The accused persons, namely, Kalloo, Shatrughan, Devendra Chaudhary, Manveer Singh, Sunny Chauhan and Braj Kishor, having with arms, were entered into the house of opposite party no.2 and started beating to the opposite party no.2 and his sons. The accused Kalloo was fired upon them but they escaped any how and thereafter, when the Police came, they fled away.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case. Initially, the applicant was not named in the F.I.R. but on the application moved by the opposite party no.2 on the very next date, his name surfaced for participation in the incident. After investigation, the I.O. submitted the charge sheet against the accused persons, however, considering the applicant, his case was referred to Juvenile Justice Board, Ghaziabad. Against which, the applicant had approached before this Court by means of Application U/s 482 Cr.P.C. No. 3048 of 2020 (Nishant vs. State of U.P. and another), wherein following order was passed:-
"Heard Shri Sunil Kumar Singh, learned counsel for the applicant and learned Additional Government Advocate.
The instant petition has been filed for quashing the further proceeding of Case No. 110 of 2019 arising out of Case Crime No. 2188 of 2017, under Sections 147, 148, 352, 323, 325 IPC and 3(1)(Da), 3(1)(Dha) of SC and ST Act, police station Sahibabad, district Ghaziabad pursuant to the order of cognizance taken against the applicant by the Principal Magistrate, Juvenile Justice Board, Ghaziabad on 25.7.2019.
Learned counsel for the applicant submits that the applicant, who was major at the time of incident has wrongly been treated as juvenile and the Principal Magistrate, Juvenile Justice Board has taken cognizance by order dated 25.7.2019 and separate case has also been registered against the applicant as Case No. 110 of 2019.
Learned counsel for the applicant has placed reliance upon the High School Certificate of the applicant in which date of birth of the applicant is recorded as 19.3.1998 and reckoning the date of birth from that date, the applicant was above 19 years at the time of incident, which took place on 27.8.2017 and as such cognizance taken by the Principal Magistrate treating the applicant as juvenile vide order dated 25.7.2019 is not sustainable in the eye of law. Learned counsel for the applicant further submitted that the co-accused persons who were also involved in the same case has obtained bail under Sections 147, 148, 352, 323 IPC and thereafter Section 325 IPC and Sections 3(1)(|Da)(Dha) of SC and ST Act have also been added, in which also they have been granted bail.
However, pursuant to the notice issued to the applicant under Section 41-A of the Code of Criminal Procedure, warrant has been issued by the Principal Magistrate, whereas cognizance ought to have been taken against the applicant along with the co-accused persons by the regular court.
On the other hand, learned Additional Government Advocate submits that during the course of investigation, the investigating officer has collected the school leaving certificate of the applicant in which date of birth of the applicant was recorded as 19.3.2001 and reckoning the date of birth from that date, the applicant was found minor at the time of incident. Learned AGA further submits that even if the cognizance has been taken against the applicant as Juvenile, that can be rectified by the Principal Magistrate as the cognizance is always taken of the offence and not offender. Therefore, in case the applicant appears before the court concerned/Principal Magistrate pursuant to the notice and warrant issued and produce the High School Certificate to demonstrate that he was not minor at the time of incident, whereupon the court concerned shall pass appropriate order.
Having considered the submissions of the parties, this Court, without going into the finality of the date of birth of the applicant, pursuant to which cognizance has been taken by the Principal Magistrate, the applicant is directed to appear before the Principal Magistrate within a period of three weeks from today, who shall pass appropriate order for transferring the case to the appropriate Court.
For a period of three weeks, no coercive steps shall be taken against the applicant in the aforesaid case.
With the aforesaid observations, this petition is finally disposed of."
In compliance of the aforesaid order, the concerned court below has passed the order dated 28.02.2020, without applying his judicial mind, whereby Non-bailable warrant has been issued against the applicant, without complying with the order passed by this Court. It has further been submitted that the applicant is innocent and has been falsely implicated in the present case. The Investigating Officer filed charge sheet against the applicant on the basis of false and frivolous statement and malicious intention indicate. Learned counsel for the applicant, therefore, submits that the entire proceedings of the aforesaid criminal case are liable to be quashed.
Per contra, learned A.G.A. for the State has opposed the prayer made by the learned counsel for the applicant by stating that all the contentions raised by the applicant's counsel relate to disputed questions of fact. However, the applicant has remedy to move discharge application for consideration his case.
I have heard the learned counsel for the parties and have gone through the records of the present application.
This Court finds that the court below has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (i) Chandra Deo Singh Vs. Prokash Chandra Bose reported in AIR 1963 SC 1430, (ii) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker reported in AIR 1960 SC 1113 and (iii) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi reported in 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi reported in 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint and the statement of the complaint under Section 200 Cr.P.C. as well as statements of the witnesses under Section 202 Cr.P.C. a prima facie case has been made out against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the proceedings against the applicant arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify its quashing.
The prayer for quashing the proceedings is refused as I do not see any abuse of the court's process either.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application on the same day, if possible, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC). It is also provided that if the applicant moves an application for discharge before the Court below within two months from today along with a certified copy of this order, the same shall be considered and decided in accordance with law by means of a reasoned speaking order, preferably within a period of three months from the date making of discharge application.
For a period of five months from today, no coercive measures shall be taken against the applicant in the aforesaid criminal case.
With the aforesaid observations, this application is finally disposed off.
Order Date :- 10.7.2020 JK Yadav