Allahabad High Court
Zahid Khan And Others vs State Of U.P. And Another on 11 December, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Delay Condonation Application No. 51203 of 2013 IN Recall Application No. 51206 of 2013 IN Case :- APPLICATION U/S 482 No. - 2254 of 2003 Applicant :- Zahid Khan And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vimal Chandra Katiyar,Brij Raj, R.B. Verma Counsel for Opposite Party :- Govt.Advocate Hon'ble Sudhir Agarwal,J.
1. Heard.
2. Delay in filing recall application is explained satisfactorily. It is hereby condoned. The application is accordingly allowed. Order Date :- 11.12.2019 AK Court No. - 34 Recall/Restoration Application No. 51206 of 2013 IN Case :- APPLICATION U/S 482 No. - 2254 of 2003 Applicant :- Zahid Khan And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vimal Chandra Katiyar,Brij Raj, R.B. Verma Counsel for Opposite Party :- Govt.Advocate Hon'ble Sudhir Agarwal,J.
1. This is an application for recall of the order dated 13.12.2010, whereby the Application under Section 482 Cr.P.C. was dismissed.
2. I have gone through the affidavit filed in support of this application. The cause shown is sufficient. The order dated 13.12.2010 is recalled and Application under Section 482 Cr.P.C. is restored to its original number. This application is, accordingly, allowed. Order Date :- 11.12.2019 AK Court No. - 34 Case :- APPLICATION U/S 482 No. - 2254 of 2003 Applicant :- Zahid Khan And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vimal Chandra Katiyar,Brij Raj, R.B. Verma Counsel for Opposite Party :- Govt.Advocate Hon'ble Sudhir Agarwal,J.
1. The application is restored to its original number vide order of date passed on recall application.
2. Heard Sri R.B. Verma, learned counsel for applicants and learned A.G.A. for State.
3. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash the proceedings of Criminal Case No. 239 of 1997, under Sections 447, 295, 295A, 297, 298 IPC as also the summoning order dated 13.05.1997 passed by First Additional Chief Judicial Magistrate, Farrukhabad.
4. It is said that there is some civil dispute pending between parties but that is a matter of defence which can be taken before Court below who shall examine the matter and pass appropriate order.
5. Having gone through the allegations contained in complaint and other documents, I am of the view that at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicants. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)
6. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
7. The application lacks merit and is accordingly dismissed.
Order Date :- 11.12.2019 AK