Allahabad High Court
Jitendra Yadav vs State Of U.P. And Another on 17 May, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- APPLICATION U/S 482 No. - 28360 of 2021 Applicant :- Jitendra Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pawan Kumar Patel,Hemant Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
In view of order proposed to be passed, issuance of notice to opposite party no.2 is dispensed with.
The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned charge sheet dated 11.5.2021 as well as entire proceedings of criminal case no. 6165 of 2021 arising out of Case Crime no. 4 of 2021, under Sections 505(2) IPC & 67 Information Technology Act, Police Station- Rampur Barkonia, District- Sonbhadra.
Learned counsel for applicant has submitted that the opposite party no.2 lodged the false and frivolous FIR against the applicant with malafide intention. It is further submitted that the investigating officer without fair and proper investigation wrongly filed the charge-sheet against the applicant and thereby, the trial court without applying judicial mind wrongly summoned the applicant.
It is next submitted that no offence as described in the F.I.R. or in the statement of the witnesses recorded during the course of investigation has taken place and the whole story as narrated in the F.I.R. as well as in the statement of the witnesses has been cooked and manufactured, therefore, the court below has materially erred in summoning the petitioner, as such the orders are liable to be set aside.
Before arguing the case on merits, learned counsel for the petitioner while pressing the present petition submits that the court below while summoning the petitioner 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 along with charge sheet and, therefore, the trial court has materially erred in summoning the petitioner.
So far as quashing of charge sheet and 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 petitioners. 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 petitioners 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 charge sheet as well as impugned proceedings is refused.
However, considering the facts and circumstances of the case, it is provided that if the applicant/petitioner appears before the court below and applies for bail, then his bail application shall be considered and decided in accordance with law propounded by the Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another (Special Leave to Appeal (Crl.) No.5191 of 2021, decided on 07.10.2021 as mentioned in Category C offence. In this case Hon'ble the Apex Court has already laid down guidelines for grant of bail, without fettering the discretion of the courts concerned and the statutory provisions governing consideration in grant of bail, no specific directions need be issued by this Court as it is expected that the court concerned will take into consideration the necessary guidelines already issued by the Apex Court.
Accordingly, the application under Section 482 Cr.P.C. is disposed of.
Order Date :- 17.5.2022 Shravan