Allahabad High Court
Shyam Singh And Another vs State Of U.P. And Another on 26 November, 2020
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 16232 of 2020 Applicant :- Shyam Singh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Atul Tej Kulshrestha Counsel for Opposite Party :- G.A. Hon'ble Salil Kumar Rai,J.
The counsel for the applicants is permitted to correct the prayer clause and the heading of the application so as co include Sections 420, 468 and 471.
The Vakalatnama filed by Sri D.S. Pandey, Advocate on behalf of opposite party no. 2 is taken on record.
Heard the counsel for the applicants, the counsel for opposite party no. 2 and learned A.G.A for the State.
This application under Section 482 Cr.P.C. has been filed to quash the summoning order dated 1.2.2020 passed by the Additional Civil Judge (S.D.) / Additional Chief judicial Magistrate, Baghpat in Case No. 1453 of 2012 (State Vs. Shyam Singh & Ors.), under Sections 406, 120B, 504, 506, 420, 468 and 471 IPC arising out of Case Crime No. 92 of 2012, Police Station Chhaprauli, District Baghpat.
The counsel for the applicants has argued that the charge under Sections 420, 468 and 471 of the Indian Penal Code has been added on an application filed by the informant under Section 216 of the Criminal Procedure Code. It has been argued that the orders passed by the courts below adding the aforesaid charges are illegal in as much as charges could have been added only if some further evidence was produced during the trial.
The aforesaid argument of the counsel for the applicants cannot be accepted in as much as in Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana & Anr. 2016 (6) SCC 105, it has been held that "from the aforesaid, it is graphic that the court can change or alter the charge if there is defect or something is left out. The test is, it must be founded on the material available on record. It can be on the basis of the complaint or the FIR or accompanying documents or the material brought on record during the course of trial. It can also be done at any time before pronouncement of judgment. It is not necessary to advert to each and every circumstance. Suffice it to say, if the court has not framed a charge despite the material on record, it has the jurisdiction to add a charge. Similarly, it has the authority to alter the charge. The principle that has to be kept in mind is that the charge so framed by the Magistrate is in accord with the materials produced before him or if subsequent evidence comes on record. It is not to be understood that unless evidence has been let in, charges already framed cannot be altered, for that is not the purport of Section 216 CrPC."
It was further argued by counsel for the applicants that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
Per contra learned A.G.A. Submitted that 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. The submissions made by the counsel for the applicants relate to disputed question of facts, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. 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.
The submissions made by learned A.G.A. have force.
The prayer for quashing the proceedings and the chargesheet is refused.
However, it is directed that if the applicants surrender before the court below and apply for bail within 30 days from today, their prayer for bail shall be considered and decided expeditiously in light of the settled law laid down in the case of Amrawati and another Vs. State of U.P reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the applicants appear before the court below, whichever is earlier, no coercive action shall be taken against the applicants in the aforesaid case.
With the aforesaid directions, the application is disposed of.
Order Date :- 26.11.2020 Satyam