Allahabad High Court
Nishant Agarwal vs State Of U.P. And Another on 18 November, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- APPLICATION U/S 482 No. - 11460 of 2020 Applicant :- Nishant Agarwal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vishal Agarwal Counsel for Opposite Party :- G.A. Hon'ble Dinesh Pathak,J.
Heard Sri Vishal Agarwal, learned counsel for the applicant and Sri O.P. Mishra, learned A.G.A. for the State. Supplementary affidavit filed by learned counsel for the applicant is taken on the record.
Applicant has invoked the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire proceedings of Case No.4055 of 2019 arising out of Case Crime No.254 of 2019, under Sections 420, 467, 468, 471, 504, 506 IPC, Police Station-Hathras Gate, District-Hathras pending in the Court of Chief Judicial Magistrate, Hathras.
As per FIR version, Meena Rani Agarwal entered into an agreement to sell dated 26.07.2018 with O.P. no.2 Arvind Kumar (informant) for consideration amount of Rs.15 lakhs with respect to area 400 square yard on which Meena Rani Agarwal claimed her ownership. In pursuance of aforesaid agreement to sell, earnest money Rs.5 lakhs and 1 lakhs were paid to her through cheque. It transpires that there was a 10 feet pathway towards south of the subject matter of agreement to sell as shown in deed dated 26.07.2018. At a subsequent stage, Meena Rani Agarwal has sold aforesaid shown pathway in favour of Bina Agarwal and Renu Agarwal by procuring a new map. Aforesaid FIR was lodged accusing nine persons. After investigation, Investigating Officer has submitted charge sheet dated 03.12.2019 only against two persons namely, Meena Rani Agarwal and Nishant Agarwal (i.e. present applicant) and remaining five persons were exonerated. On the aforesaid charge sheet, Court below has taken cognizance vide order dated 21.12.2019.
Learned counsel for the applicant submitted that no offence against applicant is disclosed and 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.
By means of this application, applicant had raised a disputed question of fact with respect to the location of plot and execution of sale deed. In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.
In a recent judgment passed on 15.04.2019 in Criminal Appeal No.675 of 2019 arising out of SLP (Crl.) No.1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.
The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 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.
After hearing learned counsel for the parties and perusing the averments made in the present application, prayer for quashing the entire proceedings of the aforementioned case is refused.
However, it is provided that in case applicant moves an appropriate application for discharge through counsel along with a certified copy of this order before the concerned Court below within a period of one month from today, the same shall be considered and decided by the Court below as expeditiously as possible in accordance with law, without being prejudiced by the order passed by this Court, preferably within four months from the date of moving the said application.
For a period of five months from today or till the disposal of discharge application, whichever is earlier, no coercive action shall be taken against the applicant in aforesaid case.
It is also made clear that in case no such application is filed within a period of one month from today, this order shall stand automatically vacated.
If the concerned Court after hearing counsel for the accused feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the Court below even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.
With the aforesaid observations, this application stands finally disposed of.
Order Date :- 18.11.2020 Manish Himwan