Allahabad High Court
Arjun Yadav And Others vs State Of U.P. Thru. Addl. Chief Secy. ... on 28 February, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- APPLICATION U/S 482 No. - 2003 of 2023 Applicant :- Arjun Yadav And Others Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. (Home) Lko. And Another Counsel for Applicant :- Amit Kumar Singh,Nilesh Singh Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicants and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the impugned summoning order dated 24.8.2022 as well as revisional order dated 11.1.2023 passed in revision No. 246 of 2022 and quash the entire proceedings of Complaint Case No. 50 of 2022, U/s 323,504,506,452,392 IPC, PS Kotwali Musafirkhana, District Amethi.
Learned counsel for the applicants submits that no offence is made out against the applicants and the present prosecution has been instituted with a mala fide intention for the purpose of causing harassment. It is further submitted that the proceedings between the applicant no.2 and the opposite party no.2 in respect of dispute over drainage, are pending before the court concerned U/s 133 CrPC. Only in order to pressurize and as a counterblast, the false and frivolous complaint case has been filed by the opposite party no.2 against the applicants on 26.6.2022 after a delay 16 days without any plausible explanation for delay. It is further submitted that only general allegation of marpeet and robbery has been alleged against all the applicants. No one has got injury from the side of opposite party no.2. Only on the basis of false statement of the complainant and other witnesses recorded U/s 200 and 202 CrPC respectively and without application of judicial mind, the trial court summoned the applicants to face trial. Being aggrieved with this summoning order, the applicants filed revision bearing No. 246 of 2022 before the revisional court, which was rejected in a mechanical manner. It is further submitted that even the residents of other villages have been roped in this case. Hence, the applicants have approached this Court invoking the jurisdiction of this Court U/s 482 CrPC.
It is next submitted that no offence as described in the complaint case or in the statement of the complainant as well as witnesses recorded during the course of investigation has taken place and the whole story as narrated in the complaint case as well as in the statements of the complainant as well as witnesses have been cooked and manufactured, therefore, the court below has materially erred in summoning the applicants, as such the orders are liable to be set aside.
Before arguing the case on merits, learned counsel for the applicants while pressing the present petition submits that the court below while summoning the applicant has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial. It is further submitted that the court below has not taken into consideration the material placed before the trial court and, therefore, the trial court has materially erred in summoning the applicants.
So far as quashing of entire proceedings is concerned, 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 applicant. All the submission made relates to the disputed question of fact, which cannot be adjudicated upon by this Court. 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. Moreover, the applicants have got a right of discharge according to the provisions prescribed in Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court.
So far as the cognizance and summoning order passed by the learned trial court is concerned, at the stage of taking cognizance, trial court can simply form an opinion as to whether the case is fit for taking and committing the matter for trial or not. In the present case, learned trial court clearly expressed his opinion that he perused all the record and clearly indicated that the material placed before him is sufficient to proceed the case. Thus, the cognizance order is not a proforma order. Every aspect is touched by learned trial court and petitioner failed to adduce any evidence which caused prejudiced to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same.
The prayer for quashing the impugned summoning order as well as impugned proceedings is refused.
Considering the entire facts and circumstances of the case, the applicants are permitted to appear before the concerned court within two weeks from today through their counsel and move an application claiming discharge. The concerned court shall after hearing the counsel decide the application on merits, in accordance with law, within a period which shall not exceed a period of two months from today.
No coercive measures shall be adopted against the applicants for a period of two months from today or till the disposal of the discharge application, whichever is earlier.
If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the 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 lower court 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 above observations/directions, this application stands disposed of.
Order Date :- 28.2.2023 Shravan