Allahabad High Court
Smt. Anuradha Tripathi And Others vs State Of U.P. Thru. Its Prin. Secy. Home, ... on 21 February, 2023
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- CRIMINAL MISC. WRIT PETITION No. - 1369 of 2023 Petitioner :- Smt. Anuradha Tripathi And Others Respondent :- State Of U.P. Thru. Its Prin. Secy. Home, Lko. And Another Counsel for Petitioner :- Suresh Chandra Srivastava,Vaibhav Srivastava Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.
Heard Sri Suresh Chandra Srivastava, learned counsel for the petitioner as well as Sri Vijay Prakash Dwivedi, learned A.G.A. for the State and perused the record.
The instant writ petition has filed under by the petitioners with a prayer to quash and set aside the impugned summoning order dated 07.04.2022, passed by Judicial Magistrate, Lalganj, Pratapgarh, in Complaint Case No. 173/2017, Under Sections 419, 420, 467 and 468 I.P.C., Police Station-Udaipur, District-Pratapgarh, Ram Baran vs. Anuradha Tripathi & Others, upholding vide impugned order dated 13.12.2022, passed by Sessions Judge, Pratapgarh, in Crl. Revision No 96 of 2022, Smt. Anuradha Tripathi & Others vs. Ram Baran & Another.
The contention of the learned counsel for the petitioners is that no offence against the petitioners is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.He further submitted that the impugned summoning order dated 07.04.2022 and revisional order dated 13.12.2022 was passed without considering the merits on record by the court below, the petitioners were wrongly summoned on the wrong facts, thus, summoning order dated 07.04.2022 and revisional order dated 13.12.2022 are liable to be quashed.
Learned A.G.A. submits that the summoning order dated 07.04.2022 was rightly passed in detail and after considering the entire evidence on record submitted by the parties concerned. He further submitted that a fraud has been committed by the petitioners regarding the property of the opposite party no.2 in respect of Gata No.1115 and the court below considering the evidence, rightly summoned the petitioners to face the trial. The Revisional Court also, after considering the entire evidence and order passed by the court below by which the petitioners were summoned has rightly rejected the revision of the petitioners vide order dated 13.12.2022. Thus, no interference required by this Court, as these are disputed question of facts and there is no illegality in the said order.
After considering the arguments as advanced by the learned counsel for the parties and after perusal of order dated 07.04.2022 passed by the Civil Judge Junior Division, Lalganj, District-Pratapgarh by which the petitioners were summoned under Section 419, 420, 467 and 468 I.P.C. do not require any interference of this Court, even though, the Revisional Court also rightly rejected the revision filed by the petitioners.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:-(i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.)283.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the charge sheet/criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer made for quashing is refused. The petitioners has ample opportunity to raise all the objections at the appropriate stage.
The Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 was pleased to observe as under:-
"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:
"Categories/Types of Offences A) Offences punishable with imprisonment of 7 years or less not falling in category B & D. B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years. C) Offences punishable under Special Acts containing stringent provisions for bail likeNDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc. D) Economic offences not covered by Special Acts.
Requisite Conditions
1) Not arrested during investigation.
2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.
(No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615) CATEGORY A After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided.
CATEGORY B/D On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."
CATEGORY C Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.
4. Needless to say that the category A deals with both police cases and complaint cases.
5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.
6. We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions."
Thus, without commenting anything on the merits of the case the present petition filed on behalf of the petitioners is finally dismissed.
Order Date :- 21.2.2023 Piyush/-